The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory (...) of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)

Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’. However, the argument from theoretical disagreement has more than one version. (...) This article briefly discusses two versions and the leading replies to them, then focuses on the most influential version, directed at Hartian positivism. The article surveys the leading positivist rejoinders to the recast version, indicating key Dworkinian replies or assessing the strength of these rejoinders, and concludes with a rejoinder of its own, making a new case that the argument from theoretical disagreement isn't fatal for Hartian legal positivism. (shrink)

Dworkin’s dignity framework has little explanatory value for one moral topic for which it should be especially suited: paternalistic intervention by one adult with another. The dignity framework has little epistemic value for morality regarding paternalism. Dworkin’s conception of dignity is too inchoate to illuminate why and when individual paternalism is wrong, all things considered. Dignity does somewhat better at illuminating why some types of individual paternalism are pro tanto wrong; but not other types. Moreover, the conception of dignity cannot (...) be refined by the process described above and retain any epistemic value on this matter. One would expect that a very natural -- indeed, a central -- use of the conception of dignity dHedgehogs would be to explain and illuminate moral claims about paternalism. That Dworkin’s conception of dignity largely fails to do so is, therefore, particularly important. (shrink)

R. A. Duff, Criminal Attempts Oxford: Clarendon Press, 1996, xxvii + 420 pp.

Hyman Gross, A Theory of Criminal Justice New York: Oxford University Press, 1979, xviii + 521 pp.

Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer my own (...) account, the De Re Account, which depends on distinguishing choosing under a description from choosing de re and noting that background norms and conventions sometimes determine what one does. In the case of legislation, because of the pragmatic norms for legal language and conventional practices against which a legislature acts, the legal content of the newer statute is chosen de re. (shrink)

This essay is aimed at those moral philosophers who recognize a certain category of negative moral rights, but refuse to recognize a similar category of positive moral rights. That category consists of moral rights normally held by human beings. Such rights may be called "natural moral rights." -/- My thesis is that if there is a natural negative right not to be killed, then -- contra Thomson, Nozick and others -- there must be at least one natural positive right, which (...) might be called a "right not to be allowed to die.". (shrink)

I argue for the possibility of posthumous harm based on an account of the harm of murder. I start with the deep-seated intuition that when someone is murdered he (or she) is harmed (over and above the pain of injury or dying), and argue that Feinberg's account that assumes that harm is an invasion of an interest cannot plausibly accommodate this intuition. I propose a new account of the harm of murder: it is an irreversible loss of functions necessary for (...) worthwhile existence. I suggest a (partial) loss analysis of harm in general, and then go on to apply it to posthumous harm and defend the idea that there can be posthumous losses. (shrink)

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function (...) as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience. (shrink)

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch (...) of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented. (shrink)

I defend the claim that posthumous harm is possible against a simple but powerful and appealing argument for the impossibility of harm from posthumous events. I produce a counterargument against one of its assumptions. My conclusion is that the boundaries of welfare-affecting events may extend beyond the existence of the person whose welfare is in question. My case for rejecting the contrary claim avoids an objection to some familiar arguments for posthumous harm and is superior to another argument for posthumous (...) harm. To my knowledge, the case for posthumous harm presented here is a novel one, though it is of the same form as arguments made in 1984 by Feinberg and Parfit. My case for posthumous harm is not complete, for I argue for the satisfaction of what many people regard as only a necessary condition for harm. But I hope to have cleared away one obstacle to the possibility of posthumous harm. (shrink)

In this essay, I argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. This approach is too narrow. It ignores a kind of Judicial discretion whose existence has been maintained by jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the justification of adjudication as clearly as does the kind of discretion that it recognizes. (...) Moreover, discussion of the kind of discretion ignored is in some respects the natural starting place for a discussion of judicial discretion in general. (shrink)

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to (...) the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication. (shrink)

This is a reference work surveying the literature (as of the publication date) on treatment of the remains of human beings. I discuss leading views on the possibility of posthumous harm, posthumous rights, and rights of the living in the bodies of the dead.

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...) for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases. (shrink)

This article responds to criticism by Don Marquis of my previous article, "Harming Someone after His Death." I argue that because the idea of surviving interests in not plausible, the harm-as-loss-theory is not on all fours with the harm-as-invasion-of-interests theory (especially when it comes to the harm of murder), and that the former is preferable.

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary (...) connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying. (shrink)

The social fact thesis, is, roughly, that law is ultimately a matter of social fact. Mark Greenberg and Kevin Toh have launched transcendental arguments against important or interesting general versions of the social fact thesis. Together, they can be read as posing a dilemma for the thesis. Suppose that many correct assertions of law are normative. Then, according to Toh, the considerations in virtue of which they are correct cannot ultimately be social facts, because the derivation of any normative conclusion (...) requires a normative premise. Suppose that correct assertions of law are not normative. Then, according to Greenberg, they cannot state legal facts in virtue of social facts alone, because the very nature of law requires a particular kind of rational connection between determinants of legal facts and legal facts. Social facts cannot meet this demand; (non-legal) normative facts are needed. In short, Greenberg and Toh together claim that the social fact thesis is consistent with neither the existence nor the normativity of law. This essay meets their challenge. (shrink)

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory (...) of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)

A familiar jurisprudential view is that statutes have the content the legislature intended. Scott Soames has challenged this view in one form while giving credence to it in another. The burden of his recent publications on the subject is that while legislative intent in the form of legislative purpose does not determine statutory content, some legislative intentions do. I maintain that Soames inflates the role of legislative intentions and ignores a source of pragmatic information that does the bulk of the (...) work of determining the linguistic content of statutes. (shrink)

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

This is an essay on aggravating circumstances. Rather than defend a thesis that particular things ought to be considered aggravating circumstances to wrongdoing, I assume general agreement about major sorts of aggravating circumstances; and I ask instead how they work and what their operation reveals about moral standards in general and minimal expectations in particular. In the final section of this essay, I briefly consider what can be said in defense of the commonsense principle that punishment should be more severe (...) if a crime is committed under aggravating circumstances than if it is not. (shrink)

This chapter discusses the retroactivity problem and how it arises when the idea that events occurring after a person’s life can harm that person is pursued. The common objection to this dilemma is the “no subject” type of response. The retroactivity problem is the result of making several assumptions jointly, many of which are initially plausible but none of which are actually defended. The first of these assumptions is referred to as Worse-Off, which states that an event harms a person (...) only if it makes him worse off than he would have been if the event had not occurred. The second assumption, implied by the first, is referred to as Welfare, which states that an event harms a person only if it makes it the case that his welfare is lower than it would have been if the event had not occurred. (shrink)

The concepts of time and identity seem at once unproblematic and frustratingly difficult. Time is an intricate part of our experience -- it would seem that the passage of time is a prerequisite for having any experience at all -- and yet recalcitrant questions about time remain. Is time real? Does time flow? Do past and future moments exist? Philosophers face similarly stubborn questions about identity, particularly about the persistence of identical entities through change. Indeed, questions about the metaphysics of (...) persistence take on many of the complexities inherent in philosophical considerations of time. This volume of original essays brings together these two essentially related concepts in a way not reflected in the available literature, making it required reading for philosophers working in metaphysics and students interested in these topics. The contributors, distinguished authors and rising scholars, first consider the nature of time and then turn to the relation of identity, focusing on the metaphysical connections between the two, with a special emphasis on personal identity. The volume concludes with essays on the metaphysics of death, issues in which time and identity play a significant role. This groundbreaking collection offers both cutting-edge epistemological analysis and historical perspectives on contemporary topics. Contributors:_ _Harriet Baber, Lynne Rudder Baker, Ben Bradley, John W. Carroll, Reinaldo Elugardo, Geoffrey Gorham, Mark Hinchliff, Jenann Ismael, Barbara Levenbook, Andrew Light, Lawrence B. Lombard, Ned Markosian, Harold Noonan, John Perry, Harry S. Silverstein, Matthew H. Slater, Robert J. Stainton, Neil A. Tognazzini The hardcover edition does not include a dust jacket. (shrink)