Reasoned disagreement is a pervasive feature of public life, and the persistence of disagreement is sometimes troublesome, reflecting the need to make difficult decisions. Fogelin suggests that parties to a deep disagreement should abandon reason and switch to non-rational persuasion. But how are the parties to know when to make such a switch? I argue that Fogelin's analysis doesn't clearly address this question, and that disputes arising in areas like medical decision making are such that the parties to them have (...) reasons to act as if they can be rationally resolved even if they are deep. Fogelin's analysis is thus of limited value as regards the practical moral demand of addressing concrete moral dilemmas. (shrink)
A curious and comparatively neglected element of death penalty jurisprudence in America is my target in this paper. That element concerns the circumstances under which severely mentally disabled persons, incarcerated on death row, may have their sentences carried out. Those circumstances are expressed in a part of the law which turns out to be indefensible. This legal doctrine—competence-for-execution —holds that a condemned, death-row inmate may not be killed if, at the time of his scheduled execution, he lacks an awareness of (...) his impending death or the reasons for it. I argue that the law of CFE should be abandoned, along with the notion that it is permissible to kill the deeply disturbed just so long as they meet some narrow test of readiness to die. By adopting CFE, the courts have been forced to give independent conceptual and moral significance to a standard for competence that simply cannot bear the weight placed upon it. To be executable, CFE requires that a condemned prisoner meet a standard demonstrating an awareness of certain facts about his death. Yet this standard both leads to confusing and counter-intuitive results and is unsupported either by the reasons advanced by the courts on its behalf or by any of the standard theoretical justifications of criminal punishment. If executing the profoundly psychotic or delusional is wrong the law needs a better account of the wrong done when prisoners like Ford are killed. I suggest wherein that wrong might be located. (shrink)
Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to (1) flesh out this “Redundancy” Thesis (RT) and (...) (2) identify and criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce (respectively) to duties (the Correlativity Thesis) or to permissions (the Permissibility Thesis). I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)
Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to flesh out this “Redundancy” Thesis and identify and (...) criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce to duties or to permissions. I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)
PHILOSOPHICAL PROBLEMS IN THE LAW is the perfect introduction to the philosophy of law. This collection of articles and cases helps you consider philosophical problems associated with the law through examples, case studies, and decision scenarios. Case examples and recent decisions such as Boumediene v. Bush (rights of Guantanamo detainees) and Brown v. Entertainment Merchants Association (freedom of expression and violent video games) coupled with new readings help you see the real-world relevance of what you are learning.
