This book develops an alternative account of rights according to which rights forfeiture has a much smaller role to play because rights themselves are more contextually contingent. For example, those who threaten to cause harm without a right to do so have weaker claims not to be killed than innocent bystanders or those who have a right to threaten to cause harm. By framing rights as the output of a balance of competing claims, and by laying out a detailed account (...) of how to balance competing claims, Walen provides a more coherent account of when killing in war is permissible. (shrink)

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the (...) courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way. (shrink)

In her latest writing on the trolley problem, 'Turning the Trolley,' Judith Jarvis Thomson defends the following counter-intuitive position: if confronted with a choice of allowing a trolley to hit and kill five innocent people on the track straight ahead, or turning it onto one innocent person on a side-track, a bystander must allow it to hit the five straight ahead. In contrast, Thomson claims, the driver of the trolley has a duty to turn it from the five onto the (...) one. Thomson’s argument is fundamentally flawed in several important ways. We explain her argument and identify its major flaws. Our aims are: (a) to show that Thomson has not provided reason to think such an act is not permissible, and (b) to use the process of exposing the weaknesses in different parts of her argument to demonstrate the importance of undertaking what we call a Hohfeldian analysis of the 'mechanics' of the rights in play. A Hohfeldian 'mechanics' of rights extends the distinctions that Hohfeld first introduced to take into account the pro tanto normative 'forces' at work on an agent, the balance of which determines who in the end has what kind of right. (shrink)

A robust, if not absolute, prohibition on treating people simply as a means sits at the core of common sense deontological morality. But the principle prohibiting such treatment, the "means principle" (MP), has been notoriously hard to defend. This paper has two parts. In Part I, I survey why the interpretation of the MP in terms of intentions does not work, and why the interpretation in terms of causes, as defended up to now, is so mysterious as to be question (...) begging. I also explore Judith Jarvis Thomson's early and admittedly failed attempt to explain the MP in terms of rights. In Part II, I articulate and defend a new account of a causal interpretation of the MP. The principle I defend there, the Restricting Claims Principle, registers the moral significance of the fact that certain claims have a kind of moral externality: if they had to be respected as rights that would restrict what agents could do on behalf of other patients. Claims that impose that sort of externality, restricting claims, register as less weighty than claims that do not. The claims of those who would be used simply as a means (a causal notion) are not restricting, and that explains why they are stronger than competing restricting claims. (shrink)

Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen by agents who (...) knew that what they were doing was or was likely to be wrong, and who nonetheless acted wrongly because of weakness of will. I agree with Husak about quality of will theories, but I argue that weakness of the will is often exculpating, and that when it is not it is because of normative negligence with regard to the reasons to steel one’s will. Thus, I argue his reason responsive account fails too. I offer instead an account of blame the key idea of which is that criminal blame is normatively appropriate as a way of communicating the importance of self-blame. Self-blame properly responds to normative negligence. Moreover, it comes with the emotion of guilt in which an agent experiences a kind of suffering for her unexcused wrongdoing. Punishment, based on criminal blame, reinforces the importance of guilt for maintaining a community of mutual respect. (shrink)