"This book argues for a mixed view of punishment that balances consequentialism and retributivism. He has published extensively on philosophy and applied ethics. A central question in the philosophy of law is why the state's punishment of its own citizens is justified. Traditionally, two theories of punishment have dominated the field: consequentialism and retributivism. According to consequentialism, punishment is justified when it maximizes positive outcomes. According to retributivism, criminals should be punished because they deserve it. This book defends (...) a mixed view that recognizes the strength of both of these intuitions. By this account, the legislature should develop institutional policies and statutory penalties that maintain the social order, that is, consequentialism. It establishes punishment policies to deter criminal activity. By contrast, the criminal judiciary should give individual defendants what they deserve, that is, retributivism and thus expressing the community's appropriate sense of resentment at being wronged. The book justifies the two-tiered model by showing how it accords with our moral intuitions, our assumptions about how what we know affects our moral obligations, and a commonly held theory of freedom. This approach is developed by engaging classic and contemporary work in the philosophy of law, and shows its advantages over competing approaches from contemporary retributivists and other mixed theorists. The work also defends consequentialism against a longstanding objection that the social sciences give us little guidance regarding which policies to adopt. It draws on cutting-edge criminological research to show how punishment theory can help us to address some of our most pressing social issues, including the death penalty, drug laws, and mass incarceration. The book will also be of interest to legal philosophers, social scientists, especially criminologists, sociologists, economists, and political scientists"--. (shrink)

Despite our moral misgivings, retributive canons of justice-the return of evil to evildoers-remain entrenched in law, literature, and popular moral precept. In this wide-ranging examination of retribution, Marvin Henberg argues that the persistence and pervasiveness of this concept is best understood from a perspective of evolutionary naturalism. After tracing its origins in human biology and psychology, he shows how retribution has been treated historically in such diverse cultural expressions as law codes, scriptures, drama, poetry, philosophy, and novels. Henberg (...) considers retributive thought in light of contemporary moral theory and current social and political concerns and advances his own theory of the morality of legal punishment."Retribution is no single doctrine or unified set of doctrines, but rather a sprawling variety of doctrines, many of them at odds with one another," observes Henberg. He suggests that understanding retributive thought as the quest for solace in the face of suffering helps to explain its variable nature. Since there is no single defensible moral criterion for identifying exact retaliation, culture is more important than nature in selecting among retributive practices. Typically, some forms of retribution are culturally approved, while others are disapproved. In place of the mistaken tendency to think of legal punishment as morally justified, Henberg maintains that legal punishment should be thought of as morally permitted. Author note: Marvin Henberg is Professor and Chair of the Department of Philosophy and Director of the University Honors Program at the University of Idaho. (shrink)

This chapter contains sections titled: The Difference between Morality and Legality Retribution and the Death Penalty Consenting to Capital Punishment Determining the “Inner Wickedness” of the Accused The Fallibility of Justice Capital Punishment Cannot Be Categorically Demanded of Us A Moral Assessment of the Supposed Duty to Kill Do These Objections Rule Out All Punishments? Whose Dignity Is at Stake?

Francis Beckwith’s Defending life: a moral and legal case against abortion choice defends the pro-life position on moral, legal and political grounds. In this critical notice I consider three key issues and argue that Beckwith’s treatment of each of them is unpersuasive. The issues are: (1) whether abortion is politically justified by the principle that we should err on the side of liberty in the face of reasonable disagreement over the moral status of the fetus; (2) whether the fetus’s (...) natural capacity or genetic propensity to develop rationality and communication is sufficient to give it a moral right to life; and (3) whether abortion is morally justified on the basis of bodily rights. I also show that Beckwith’s book fails to consider several important issues and arguments. (shrink)

Can a soldier be held responsible for fighting in a war that is illegal or unjust? The chapters in the book both challenge and defend many deeply held assumptions: about the liability of soldiers for crimes of aggression, about the nature and justifiability of terrorism, about the relationship between law and morality.

Perhaps more than any other scholar, Michael Moore has argued that there are deep and necessary connections between metaphysics, morality, and law. Moore has developed every contour of a theory of criminal law, from philosophy of action to a theory of causation. Indeed, not only is he the central figure in retributive punishment but his moral realist position places him at the center of many jurisprudential debates. Comprised of essays by leading scholars, this volume discusses and challenges the work (...) of Michael Moore from one or more of the areas where he has made a lasting contribution, namely, law, morality, metaphysics, psychiatry, and neuroscience. The volume begins with a riveting contribution by Heidi Hurd, wherein she takes an unadorned and unabashed look at the man behind this monumental body of work, full of both triumphs and sadness. A number of essays focus on Moore's view of the purpose and justification of the criminal law, specifically his endorsement of retributivism and legal moralism. The book then addresses Moore's work in the various aspects of the general part of the criminal law, including Moore's position on how to understand criminal acts for double jeopardy purposes, Moore's claim that accomplice liability is superfluous, and Moore's views about the culpability of negligence, as well as the relationship between that view and proximate causation. Furthermore, the subject of defenses in criminal law is addressed, including self-defense, and also the intersection of psychiatry, psychology, cognitive neuroscience, and the criminal law. Also discussed are features of morality, and Moore's work in general jurisprudence. Finally, Moore concludes the volume with an essay that defends and delineates the features of his views. (shrink)

We are living through an era of increased robotisation. Some authors have already begun to explore the impact of this robotisation on legal rules and practice. In doing so, many highlight potential liability gaps that might arise through robot misbehaviour. Although these gaps are interesting and socially significant, they do not exhaust the possible gaps that might be created by increased robotisation. In this article, I make the case for one of those alternative gaps: the retribution gap. This gap (...) arises from a mismatch between the human desire for retribution and the absence of appropriate subjects of retributive blame. I argue for the potential existence of this gap in an era of increased robotisation; suggest that it is much harder to plug this gap than it is to plug those thus far explored in the literature; and then highlight three important social implications of this gap. (shrink)

Considering efficiency, equality, and morality, this book argues for qualified market expansion, particularly in legalizing kidney sales and prostitution. Legalizing prostitution will benefit both men and women, as argued in a chapter jointly written with Yan Wang. Blood donation without monetary compensation can still result in adequate blood supply if schools educate children that blood donation can actually benefit a donor's health. As a society becomes more advanced, with higher incomes and a better educated populace, more activities can be (...) subject to market exchange, with gradual popular acceptance. Without serious misinformation and irrationality, inequality/fairness as such cannot be a valid reason for limiting the scope of the market. The book supports the use of markets to increase efficiency while also increasing the effort to promote equality, making all income groups better off. (shrink)

Within the United States, the most prominent justification for criminal punishment is retributivism. This retributivist justification for punishment maintains that punishment of a wrongdoer is justified for the reason that she deserves something bad to happen to her just because she has knowingly done wrong—this could include pain, deprivation, or death. For the retributivist, it is the basic desert attached to the criminal’s immoral action alone that provides the justification for punishment. This means that the retributivist position is not (...) reducible to consequentialist considerations nor in justifying punishment does it appeal to wider goods such as the safety of society or the moral improvement of those being punished. A number of sentencing guidelines in the U.S. have adopted desert as their distributive principle, and it is increasingly given deference in the “purposes” section of state criminal codes, where it can be the guiding principle in the interpretation and application of the code’s provisions. Indeed, the American Law Institute recently revised the Model Penal Code so as to set desert as the official dominate principle for sentencing. And courts have identified desert as the guiding principle in a variety of contexts, as with the Supreme Court’s enthroning retributivism as the “primary justification for the death penalty.” While retributivism provides one of the main sources of justification for punishment within the criminal justice system, there are good philosophical and practical reasons for rejecting it. One such reason is that it is unclear that agents truly deserve to suffer for the wrongs they have done in the sense required by retributivism. In the first section, I explore the retributivist justification of punishment and explain why it is inconsistent with free will skepticism. In the second section, I then argue that even if one is not convinced by the arguments for free will skepticism, there remains a strong epistemic argument against causing harm on retributivist grounds that undermines both libertarian and compatibilist attempts to justify it. I maintain that this argument provides sufficient reason for rejecting the retributive justification of criminal punishment. I conclude in the third section by briefly sketching my public health-quarantine model, a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. I argue that the model is not only consistent with free will skepticism and the epistemic argument against retributivism, it also provides the most justified, humane, and effective way of dealing with criminal behavior. (shrink)

Revisionists claim that the retributive intuitions informing our responsibility-attributing practices are unwarranted under determinism, not only because they are false, but because if we are all victims of causal luck, it is unfair to treat one another as if we are deserving of moral and legal sanctions. One revisionist strategy recommends a deflationary concept of moral responsibility, and that we justify punishment in consequentialist rather than retributive terms. Another revisionist strategy recommends that we eliminate all concepts of guilt, blame and (...) punishment, and treat dangerous criminals as we treat people with contagious diseases. I argue against both strong and moderate revisionism that it is not unfair to hold persons desert -entailingly responsible insofar as they take an interest in being treated as appraisable, and that it is unfair to persons not to treat them as desert -entailingly responsible contrary to their interests in being treated as such. The interest-based argument, I conclude, give us a justification for communicating retributive attitudes, but may still require a weak revision of our retributive practices, in the direction of a communicative theory of punishment. (shrink)

That we owe duties to others is a commonplace, the subject of countless philosophical treatises and monographs. Morality is interpersonal and other-directed, many claim. But what of what we owe ourselves? In Duty to Self, Paul Schofield flips the paradigm of interpersonal morality by arguing that there are moral duties we owe ourselves, and that in light of this, philosophers need to significantly rethink many of their views about practical reason, moral psychology, politics, and moral emotions. -/- Among (...) these views is the idea that divisions within a person's life enable her to relate to herself second-personally--that is, as though she were relating to a distinct other person--in the way required by morality. Further, there exist political duties owed to the self, which the state may coerce persons to perform. This amounts to a novel argument for paternalistic law, which appeals to considerations of right, justice, and freedom in order to justify coercing a person for their own sake--a liberal justification for an idea typically thought to be deeply at odds with liberalism. -/- Schofield untangles how this view would impact various issues in applied ethics and political philosophy, for example, financial prudence and risk, the pursuit of the good life, and medical ethics. Duty to Self is essential for anyone working in moral and political philosophy or political theory. (shrink)

Within the criminal justice system, one of the most prominent justifications for legal punishment is retributivism. The retributive justification of legal punishment maintains that wrongdoers are morally responsible for their actions and deserve to be punished in proportion to their wrongdoing. This book argues against retributivism and develops a viable alternative that is both ethically defensible and practical. Introducing six distinct reasons for rejecting retributivism, Gregg D. Caruso contends that it is unclear that agents possess the kind of free will (...) and moral responsibility needed to justify this view of punishment. While a number of alternatives to retributivism exist - including consequentialist deterrence, educational, and communicative theories - they have ethical problems of their own. Moving beyond existing theories, Caruso presents a new non-retributive approach called the public health-quarantine model. In stark contrast to retributivism, the public health-quarantine model provides a more human, holistic, and effective approach to dealing with criminal behavior. (shrink)

It has become increasingly popular to argue that legal positivism is actually a normative theory, and that it cannot be purely descriptive and morally neutral as H.L.A. Hart has suggested. This article purports to disprove this line of thought. It argues that legal positivism is best understood as a descriptive, morally neutral, theory about the nature of law. The article distinguishes between five possible views about the relations between normative claims and legal positivism, arguing that some of them are not (...) at odds with Hart’s thesis about the nature of jurisprudence, while the others are wrong, both as expositions of legal positivism or as critiques of it. Legal positivism does not necessarily purport to justify any aspect of its subject matter, nor is it committed to any particular moral or political evaluations. (shrink)

Does the morality of abortion depend on the moral status of the human fetus? Must the law of abortion presume an answer to the question of when personhood begins? Can a law which permits late abortion but not infanticide be morally justified? These are just some of the questions this book sets out to address. With an extended analysis of the moral and legal status of abortion, Kate Greasley offers an alternative account to the reputable arguments of Ronald (...) Dworkin and Judith Jarvis Thomson and instead brings the philosophical notion of 'personhood' to the foreground of this debate. Structured in three parts, the book will consider the relevance of prenatal personhood for the moral and legal evaluation of abortion; trace the key features of the conventional debate about when personhood begins and explore the most prominent issues in abortion ethics literature: the human equality problem and the difference between abortion and infanticide; and examine abortion law and regulation as well as the differing attitudes to selective abortion. The book concludes with a snapshot into the current controversy surrounding the scope of the right to conscientiously object to participation in abortion provision. (shrink)

This paper explores the relationship between punishment and desert and offers two distinct sets of reasons for rejecting the retributive justification of legal punishment — one theoretical and one practical. The first attacks the philosophical foundations of retributivism and argues that it’s unclear that agents have the kind of free will and moral responsibility needed to justify it. I present stronger and weaker versions of this objection and conclude that retributive legal punishment is unjustified and the harms it causes are (...) prima facie seriously wrong. The second objection maintains that even if one were to assume that wrongdoers are deserving of retributive punishment, contra concerns over free will, we should still abandon retributivism since there remain insurmountable practical difficulties that make it impossible to accurately and proportionally distribute legal punishment in accordance with desert. In particular, I present the Misalignment Argument and Poor Epistemic Position Argument and argue that, taken together, they create a powerful new challenge to retributivism called the Retributivist Tracking Dilemma. (shrink)

This book addresses a dilemma at the heart of counter-terrorism: Is it ever justifiable to torture terrorists when innocent lives are at stake? The book analyses the moral arguments and presents a passionate defence of prohibition. It also examines current State practice and the models of legalising torture suggested in Israel and the US.

There is considerable debate at present, particularly in the Member States of the European Union, concerning the necessity and appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. The vast majority of those contributing to this debate have focused on the punishment theory of (economic) deterrence. Little room is devoted to the punishment theory of retribution or to consideration of the ‘moral wrongfulness’ of cartel activity. This article posits that the issue of ‘moral wrongfulness’ is (...) a central issue in the debate on cartel criminalization, irrespective of whether it is deterrence theory or retribution theory that informs the debate. By employing a norms-based approach, this article then examines the extent to which cartel activity can indeed be interpreted as conduct that is ‘morally wrong’ due to its violation of the moral norms against stealing, deception and/or cheating. By doing so, this article not only challenges traditional views of the nature of cartel activity but also provides scholars, legislatures and policymakers with specific analyses which are crucial to a decision whether to justify (or indeed to oppose) the introduction and maintenance of criminal cartel sanctions. (shrink)

T he Question of punishment and its justification has been a major preoccupation in recent philosophy of law. The reasons for this growing concern are not difficult to discover. Both philosophers and jurists have become increasingly sceptical of traditional theories of legal punishment. Each of these inherited theories was designed to establish criteria for the recognition and appraisal of punishment as a legal institution. However, alternative theories emphasised different and often conflicting criteria. Some theories emphasised moral desert and retribution, (...) while others appealed to the social utilities of punishment. Failure to reconcile these diverse philosophical viewpoints, through sustained debate over two centuries, has been a major source of intellectual dissatisfaction. (shrink)

Despite sharing Catholic Social Teaching as their system of morals and both being confronted with marketisation pressures, working conditions at German and Belgian Catholic social service providers of elderly care differ. We argue that an interdisciplinary approach is needed to understand such differences, as interpretation of CST is mediated by local contexts. Working conditions result from interactions shaped by each country’s respective religious, legal and socio-economic contexts, providing players with different levels of discretion and power resources. In Belgium, working conditions (...) at Catholic elderly care providers tend to be better due to a strong Catholic trade union, encompassing labour market regulation and a universal legal system applying to all care providers. Moreover, there is strong interaction between these Catholic care providers and other Catholic institutions. By contrast, German CSSPs, operating as faith-based organisations with their own legal framework in a relatively liberalised and decentralised labour market, are able to use various flexibility practices which put pressure on working conditions. Using such practices is partially justified by the Catholic discourse on charity and altruism, stressing the particular nature of work in the Catholic care sector. Overall, the article demonstrates differences in the local application of CST. It also shows how transnational differences in working conditions at Catholic social service providers are the product of more than just local differences in the interpretation and application of CST principles, being shaped by interactions between a country’s specific religious, legal and socio-economic contexts. (shrink)

Neil Levy argues that the degree to which psychopaths ought to be held blameworthy for their actions depends on the extent to which they are capable of mental time travel—episodic memory and episodic foresight. Levy claims that deficits in mental time travel prevent psychopaths from fully appreciating what it is to be a person, and, without this understanding, we can at best hold psychopaths blameworthy for harming non-persons. In this paper, I build upon and clarify various aspects of Levy’s view. (...) Specifically, I begin by outlining the neurobiological data on mental time travel, and I argue that psychopaths, or at least some psychopaths, appear to have the deficits Levy ascribes to them. I then expand upon the legal implications of his argument by using an analogy between juveniles and psychopaths to argue that the penological justification for retributive punishment against psychopaths ought to be substantially diminished. (shrink)

Retributive theories of punishment hold that moral desert is a necessary and sufficient condition for punishment. This principle has been justified in light of rectifying a 'balance of justice' upset by wrongdoing. Many opposed to retributivism, such as Nussbaum, have argued such a ‘balance’ is nothing more than ‘magical’ thinking and retributivism is, in fact, positively harmful. On the contrary, I will argue that there is a compelling way to make sense of that intuition. The Chinese Neo-Confucian tradition and (...) medieval Latin theologian Thomas Aquinas hold that moral wrongs upset a normative order of relationships and, in this respect, disrupt the order that ought to exist in the human community. Despite criticisms that retributivism about punishment requires outlandish metaphysical assumptions, I therefore propose the theory remains plausible without any such appeal. (shrink)

Challenges to Legal Theory offers the reader a fascinating journey though a variety of multi-disciplinary topics, ranging from law and literature, and law and religion, to legal philosophy and constitutional law. The collection reflects some of the challenges that the field of legal theory currently faces. It is compiled by a selection of international and Spanish scholars, whose essays are made available in English translation for the first time. The volume is based on a collection of essays, published in Spanish, (...) in honour of Professor José Iturmendi Morales, of Complutense University, Madrid, and brings the rich scholarship of pre-eminent Spanish scholars of law and legal theory to an international audience. (shrink)

The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting (...) it as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. -/- Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)

I address four questions that arise out of Nigel Simmonds's book, Law as a Moral Idea : Is politics a moral idea too? Is there any such thing as law making? Is there a right answer to every legal dispute? What justifies a judicial decision? To each question I propose an answer that shares much with Simmonds's views, but diverges. Simmonds is right to call law a 'moral idea', and that implies a connection between law and a moral ideal; in (...) my view, the connection is compatible with a necessary connection between law and the morally non-ideal. (shrink)

In their brilliant and thought-provoking book Recognizing Wrongs, John Goldberg and Benjamin Zipursky offer a vindicatory interpretation of the law of torts. As part of this, they offer a justification for what they call the “principle of civil recourse.” This is the principle that “a person who enjoys a certain kind of legal right, and whose right has been violated by another, is entitled to enlist the state’s aid in enforcing that right, or to make demands in response to its (...) violation, as against the person who has violated it.” To defend the principle of civil recourse, Goldberg and Zipursky appeal to three values: equality, fairness, and individual sovereignty. In this essay, we make two critical points. First, we argue that Goldberg’s and Zipursky’s defense errs by omitting a justificatory appeal to our moral rights and duties as part of the normative foundation of the tort law. Second, we argue that Goldberg’s and Zipursky’s arguments do not explain certain institutional features of the tort law, including the fact that legal duties of redress emerge only at the conclusion of court cases and the fact that lawsuits are opted int.o by tort victims who must initiate these actions themselves. To retain what is philosophically valuable in Goldberg’s and Zipursky’s impressive defense of the principle of civil recourse, we conclude with a strategic suggestion on their behalf: they should split their defense of the principle of civil recourse into two parts, with the first part justifying the existence of some institution of civil recourse or other and the second part justifying specific details that this institution should have. (shrink)

This paper addresses the issue of the moral standing of nonhuman animals and their moral and legal rights. First of all, two most prominent views arguing for moral significance of animals are discussed. Peter Singer’s utilitarian view is that animals are sentient beings and therefore deserve equal consideration of their interests. Next, Tom Regan’s standpoint is that many animals have inherent value as experiencing subjects of a life, and consequently an equal right to be treated with respect. This is followed (...) by a discussion about legislation and legal practice in our country and abroad. Finally, it is argued that animals should have at least some basic rights guaranteed by the law. (shrink)

David Lyons is one of the pre-eminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad (...) the law of a community might be, strict conformity to existing law automatically dispenses 'formal' justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

Wrongdoing and the Moral Emotions provides an account of how we might effectively address wrongdoing given challenges to the legitimacy of anger and retribution that arise from ethical considerations and from concerns about free will. The issue is introduced in Chapter 1. Chapter 2 asks how we might conceive of blame without retribution, and proposes an account of blame as moral protest, whose function is to secure forward-looking goals such as the moral reform of the wrongdoer and reconciliation (...) in relationships. Chapter 3 considers whether it's possible to justify effectively dealing those who pose dangerous threats if they do not deserve to be harmed, and contends that wrongfully posing a threat is the core condition for the legitimacy of defensive harming. Chapter 4 provides an account of how to treat criminals without a retributive justification for punishment, and argues for an account in which the right of self-defense provides justification for measures such as preventative detention. Chapter 5 considers how we might forgive if wrongdoers don't basically deserve the pain of being resented, which forgiveness would then renounce, and proposes that forgiveness be conceived instead as renunciation of the stance of moral protest. Chapter 6 considers how personal relationships might function without retributive anger having a role in responding to wrongdoing, and contends that the stance of moral protest, supplemented with non-retributive emotions, is sufficient. Chapter 7 surveys the options for theistic and atheistic attitudes regarding the fate of humanity in a deterministic universe, and defends an impartial hope for humanity. (shrink)

This chapter contains sections titled: The Moral Duty to Assist Others in Their Health Care Health Care Should Be Provided by the Government The Duty to Provide Truly Universal Health Care Rejecting the Liberal Model.

This book proposes a new, rationally-justified, evidence-based theory concerning values. It discusses practical applications of these universally-applicable values, especially to morality, society, education and upbringing. In doing so, it discusses sexism, sexuality, racism, freedom, politics, law, animal rights, environmental ethics, health-care, war, economics, psychology, science, literature, religion, and much more.

The use of dispositions has been put into question many times in the philosophical literature, especially with regards to how dispositional attributions can be justified. Yet, dispositions are an important part not only of our everyday talk but also of our scientific practices. In this paper, we develop an argument that infers the epistemic justification of dispositional talk from itsindispensability for carrying out basic epistemological projects, and we apply it to the use of dispositions in evolutionary biology. For doing (...) this, we first advocate for a function-based strategy for the epistemic justification of dispositional attributions. We next review the functional role of some key dispositional notions in evolutionary biology, such as fitness and evolvability. Then, we show that alternative non-dispositional substitutes of these dispositions fail to fulfill their roles to the same degree. We conclude that the use of dispositions is justified in evolutionary biology. (shrink)

H. L. A. Hart in his Law, Liberty, and Morality (1963) defended the view that legal paternalism and legal moralism can be clearly distinguished from each other. Hart also stated that while legal moralism is always unacceptable, paternalistic laws are often justifiable. In this paper it is argued that Hart held the right view for the wrong reasons. Hart defended legal paternalism by claiming, against J. S. Mill, that for various psychological reasons individuals do not know their own interests (...) best. It will be shown in the paper that if this view is taken, it is impossible to reject legal moralism. The fact that paternalism is sometimes justifiable while moralism is not can be more firmly founded on a distinction made by C. L. Ten (1971). Ten's point is that in matters which concern only the individuals themselves, their actions cannot be legitimately restricted by appeals to the consequences of their action alone. Paternalistic control can be justified only if the decision-making abilities of the controlled individual are temporarily diminished. (shrink)

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an (...) actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)

The purely retributive moral justification of punishment has a gap at its centre. It fails to explain why the offender should not be protected from punishment by the intuitively powerful moral idea that afflicting another person (other than to avoid a greater harm) is always wrong. Attempts to close the gap have taken several different forms, and only one is discussed in this paper. This is the attempt to push aside the ‘protecting’ intuition, using some more powerful intuition specially invoked (...) by the situations to which criminal justice is addressed. In one aspect of his complex defence of pure retributivism, Michael S. Moore attempts to show that the emotions of well-adjusted persons provide evidence of moral facts which justify the affliction of culpable wrongdoers in retribution for their wrongdoing. In particular, he appeals to the evidential significance of emotions aroused by especially heinous crimes, including the punishment-seeking guilt of the offender who truly confronts the reality of his immoral act. The paper argues that Moore fails to vindicate this appeal to moral realism, and thus to show that intrinsic personal moral desert (as distinct from ‘desert’ in a more restricted sense, relative to morally justified institutions) is a necessary and sufficient basis for punishment. Other theories of the role of emotions in morality are as defensible as Moore’s, while the compelling emotions to which he appeals to clinch his argument can be convincingly situated within a non-retributivist framework, especially when the distinction between the intuitions of the lawless world, and those of the world of law, is recognised. -/- . (shrink)

Abstract.The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of (...) poor countries with the problem of fast population growth. He argues that a coherent goal‐rights system which accommodates rights among others goals, can overcome the non‐consequential arguments and justify the force of moral rights fully within a consequentiality perspective. (shrink)

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases ; and adjudication is thus “autonomous” from other kinds of (...) reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe. (shrink)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit's long- standing interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions (...) should be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circum stances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in themselves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

This book explores secession from three normative disciplines: political philosophy, international law and constitutional law. The author first develops a moral theory of secession based on a hypothetical multinational contract. Under this contract theory, injustices do not determine the existence of a right to secede, but the requirements to exercise it. The book’s second part then argues that international law is more inclined to accept and advance a remedial right approach to secession. Therefore, justice as multinational fairness is to be (...) fully institutionalized under the constitutional law of liberal democracies. The final part proposes constitutionalizing a qualified right to secede with the aim of fostering recognition and accommodation of national pluralism as well as cooperation and compromise between majority and minority nations. (shrink)

How may a society, in a morally defensible way, confront a past of injustice and suffering, and seek to break the spell of violence and disregard for human life? I begin by demonstrating the relevance of this question to the South African Truth and Reconciliation Commission, and I draw attention to André du Toit’s longstanding interest in ways in which truth commissions may function to consolidate political change. In the second section of the article, I argue that truth commissions should (...) be regarded as a defensible moral compromise between the values of justice and social unity, and I criticize claims that truth commissions promote transitional justice, when that is understood as a distinctive conception of justice that emerges in circumstances of regime transition. In the third section, I criticize the claim that truth commissions are not a moral compromise at all but embody a superior, restorative conception of justice. I conclude by showing why retribution is required by criminal justice, and why truth commissions must be seen, not as an end in them selves, but as institutions whose function is to emphasize the importance of the rule of law, normal criminal justice, and legal recognition. (shrink)

This paper considers the hotly debated issue of whether one should grant moral and legal personhood to intelligent robots once they have achieved a certain standard of sophistication based on such criteria as rationality, autonomy, and social relations. The starting point for the analysis is the European Parliament’s resolution on Civil Law Rules on Robotics and its recommendation that robots be granted legal status and electronic personhood. The resolution is discussed against the background of the so-called Robotics Open Letter, which (...) is critical of the Civil Law Rules on Robotics. The paper reviews issues related to the moral and legal status of intelligent robots and the notion of legal personhood, including an analysis of the relation between moral and legal personhood in general and with respect to robots in particular. It examines two analogies, to corporations and animals, that have been proposed to elucidate the moral and legal status of robots. The paper concludes that one should not ascribe moral and legal personhood to currently existing robots, given their technological limitations, but that one should do so once they have achieved a certain level at which they would become comparable to human beings. (shrink)

In Section One the automatic ratification of existing law as immediately self-validating is shown to undermine the very purpose of law - the surpassing of arbitrariness and of Czar-like ukases. In Sections Two and Three there is an attempt to explore the justification or grounding that can be given for the existing laws and civil disobedience, respectively. In both cases, the justification has been given in terms of fundamental human dignity which should never be violated by empirical laws. Only when (...) such a violation does occur can civil disobedience be justified. Therefore, the rationale for, and motivation of, both a legal system and civil disobedience are the same.However, one does not so easily resolve the opposition between the two. For the law itself is proclaimed apodictically, without the reservation that one may with impunity break the law and commit an act of civil disobedience whenever the law violates one's conscience. Otherwise, we do not have a rule of law but instead anarchy. For, as Jesus has said and Abraham Lincoln paraphrased it: “A kingdom divided against itself will not stand.” The law cannot declare that it is legal to break the law without incapacitating itself. The law must punish its violators to be a valid law; without powers of enforcing sanctions against violators the law is no law.However, we must not consider for this reason that those who are responsible for making, interpreting, and enforcing the law and those who are civilly disobedient are working at cross purposes. Both are concerned with justice. The civilly disobedient individual is concerned with improving the existing legal system. He envisions his role as therapeutic rather than destructive. He believes that the ideal of justice is being violated in some way in the existing laws. He therefore makes of himself a martyr, bearing witness to the truth, and hoping thereby to educate and enlighten and to move men of good will - in short, to effect a change in the law.Before an individual who respects the rule of law should be willing to be civilly disobedient he must be convinced of the violation of basic human rights in the law. He also must consider whether civil disobedience is the most effective means of producing the desired change. But beyond the pragmatic consideration of the most effective means to produce the desired end, there is also the question of what is most meaningful and suitable for him personally in living in conformity with the categorical imperative. Discussions of civil disobedience which limit themselves to questions of practical consequences do a great disservice to such actions. For, must we not admire those who resisted Hitler, even though they realized that their actions were futile in terms of changing the law and might even mean their deaths?In a free society, dedicated to the rule of law, all citizens are concerned with justice. Those entrusted with the responsibility of enforcing the law obviously must do just that, so that violators of the law have to be punished. However, when legislators and judges notice that some of the most perspicacious and conscientious individuals are openly violating existing laws in the name of a higher law, they should also make a serious reappraisal of their positions, looking to see whether they may not have become morally insensitive or careless. Indeed, the real value of a free society is its flexibility and tolerance of dissent, even that of civil disobedience, which can serve to dramatize forcefully, deep-seated convictions concerning the injustice of certain laws on the books. It is true that fanatics from time immemorial have been willing to sacrifice much in the name of their cause. But whenever one finds that there is an individual who is willing to sacrifice much without the hope of personal advantage and who is also willing to provide arguments in defense of his position, society would do well to listen to his words and actions.Without the constant delving scrutiny and criticism of existing laws, there cannot be true legal responsibility. Therefore, the civilly disobedient individual, who is willing to put his head on the block in order to abrogate unjust laws, is in fact the legally responsible individual par excellence. (shrink)

Just as the pleasant experience differs from the non-pleasant or unpleasant, and the aesthetic from the non-aesthetic, internally or qualitatively, and not merely in degree, or externally or relationally, so, it is natural to expect, a moment of moral living differs from a moral or immoral moment. Indeed, from many quarters, and most emphatically from the Stoic and Christian, we have been wont to hear that if we but leave our sinful or indifferent lives and put on righteousness or goodness, (...) we shall become new men or men reborn, even creatures of a different species. But according to many analyses of morality these promises of transfiguration or translation are nonsensical lies: for the moral experience, as exhibited in these analyses, differs from the non-moral or immoral only in respect of external relations, or at the most in degree. Whether the truth resides in the promises or in the analyses is, obviously, a question of no mean import. It is also a vast one, while the time and space that can be given up to an article are brief; hence the following will be barely more than a raising of the question, or a provocation, by means of rough statements, some dogmatic, others hypothetical. (shrink)

Within contemporary penal philosophy, the view that punishment can only be justified if the offender is a moral agent who is responsible and hence blameworthy for their offence is one of the few areas on which a consensus prevails. In recent literature, this precept is associated with the retributive tradition, in the modern form of ‘just deserts’. Turning its back on the rehabilitative ideal, this tradition forges a strong association between the justification of punishment, the attribution of responsible agency (...) in relation to the offence, and the appropriateness of blame. By contrast, effective clinical treatment of disorders of agency employs a conceptual framework in which ideas of responsibility and blameworthiness are clearly separated from what we call ‘affective blame’: the range of hostile, negative attitudes and emotions that are typical human responses to criminal or immoral conduct. We argue that taking this clinical model of ‘responsibility without blame’ into the legal realm offers new possibilities. Theoretically, it allows for the reconciliation of the idea of ‘just deserts’ with a rehabilitative ideal in penal philosophy. Punishment can be reconceived as consequences—typically negative but occasionally not, so long as they are serious and appropriate to the crime and the context—imposed in response to, by reason of, and in proportion to responsibility and blameworthiness, but without the hard treatment and stigma typical of affective blame. Practically, it suggests how sentencing and punishment can better avoid affective blame and instead further rehabilitative and related ends, while yet serving the demands of justice. (shrink)