I am grateful to Criminal Law & Philosophy for organizing this symposium on my book, Prosecuting Domestic Violence: A Philosophical Analysis (OUP 2009)—and am especially indebted to Professors Kinports and Cowan for their careful, generous, and challenging engagements with my arguments. I am relieved to find that Professors Kinports and Cowan are mostly positive in their evaluation of the book’s merits and delighted to find their critical reflections have offered me the opportunity to think more deeply about the project I (...) undertook in the book.I found much with which to agree in both commentaries. Indeed, I will have little to offer in response to Professor Kinports’ article until the end of my own comments here, except to note that I found her critique of prosecutors-as-community-representatives as illuminating as it was disheartening. Perhaps one way to increase the likelihood that prosecutors might someday act as genuine representatives of their communities (in whole or in part) wou .. (shrink)

This article sets out a framework for distinguishing three kinds of norms governing past sexual (mis)conduct and our responses to it: wrongfulness norms, excusability norms, and accountability norms. The framework provides conceptual tools for making sense of (and understanding the limits of) three distinct responses commonly offered by those accused of past sexual misconduct: “But that used to be okay!” “But everybody used to think that was okay!” and “But that was so long ago!”.

This chapter examines three approaches to applied political and legal philosophy: Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy directly addressed to policy-makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily (...) targets an audience of fellow philosophers, bears a distant, non-direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This article is a contribution to a symposium on Kit Wellman’s intriguing monograph, Rights Forfeiture and Punishment. Primarily, the article grapples with Wellman’s claims regarding the moral permissibility of sadistic punishment. The metaphor of “philosophical languages” is employed throughout, to compare Wellman’s use of rights-forfeiture discourse to an approach that is grounded in practical-reasons discourse. This study in philosophical translation allows us to reassess and critique Wellman’s conclusions regarding the moral permissibility of sadistic punishment. On one level, the article is (...) an attempt to engage with Wellman’s book and rights-forfeiture based arguments on, and in, their own terms. Yet, the article is also an attempt to explain and defend a practical-reasons based approach to appraising moral permissibility. If the article succeeds, it both pays tribute to Wellman’s masterful rights-forfeiture arguments, while making the case that practical-reason arguments illuminate a wider range of salient considerations that we should wish to keep in view when considering the moral permissibility of sadistic punishments. (shrink)

In whose voice does the criminal law speak, and why does it matter? Miriam Gur-Arye argues that the answer to the first question depends on the kind of duty violated by the crime at issue. In some cases (say, election fraud or tax evasion), the criminal law speaks in the voice of the polity—but in other cases (say, murder or rape), it speaks in the voice of human beings. Or so argues Gur-Ayre. Not surprisingly, perhaps, a lot depends on what (...) one means by the voice of the criminal law. In this paper, I defend two related arguments. First, the criminal law typically claims to speak in the voice of the polity, even if, in practice, it often fails to do so. Second, where the criminal law does speak in the voice of the polity, its doing so can contribute to its own justification. (shrink)

This chapter examines applied ethics regarding prostitution and criminalization. It proceeds in three parts. Part one examines different ways of defining prostitution, part two reviews five objections to prostitution that have framed standard debates regarding criminalization, and part three examines issues that have arisen in ethical debates regarding prostitution and criminalization in recent decades. Along the way, the chapter illustrates the extent to which debates in applied ethics regarding the criminalization of prostitution depend in large part on what prostitution is (...) like in a given social context. Further, the chapter emphasizes that satisfactory answers to this question depend not only on empirical evidence but on ethical disagreements regarding underlying concepts such as choice, freedom, and consent. (shrink)

This chapter examines three approaches to applied political and legal philosophy: standard activism, extreme activism, and conceptual activism. They differ from one another in their target audiences, how directly the arguments seek to advance change in the world, and what they take as their measure(s) of success. Standard activism is primarily addressed to other philosophers, adopts an indirect and coincidental role in creating change, and counts articulating sound arguments as success. Extreme activism, in contrast, is a form of applied philosophy (...) directly addressed to policy‐makers, with the goal of bringing about a particular outcome, and measures success in terms of whether it makes a direct causal contribution to that goal. Finally, conceptual activism (like standard activism), primarily targets an audience of fellow philosophers, bears a distant, non‐direct, relation to a desired outcome, and counts success in terms of whether it encourages a particular understanding and adoption of the concepts under examination. (shrink)

This article explores some conceptual issues regarding criminalization at the domestic and international levels. It attempts to explain what it means to say that a particular kind of conduct has been criminalized, and considers how the processes of criminalization differ in domestic and international law. In unpacking these issues, the article takes the examples of rape and sex trafficking in domestic and international legal systems, explores whether these offenses are criminalized more broadly in international criminal law as compared to domestic (...) criminal law, and briefly outlines possible explanations for this disparity. (shrink)

This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010 ) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical method as one (amongst other) valuable ways to argue about prostitution.

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission . When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting (...) person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons. (shrink)

This book provides the first serious, sustained philosophical investigation of the criminal prosecution of domestic violence. It provides a theoretical framework for understanding ongoing debates regarding the criminal justice system's response to domestic violence.

Michelle Madden Dempsey’s Prosecuting Domestic Violence: A Philosophical Analysis (2009) is an important book for many reasons. Amongst these are the prevalence of domestic violence and the extraordinary, largely unaccountable discretionary powers wielded by prosecutors in the United States. Against this background, Dempsey asks in particular what prosecutors should do when the victims of domestic violence withdraw their support from the proposed prosecution. In Prosecuting Domestic Violence, Dempsey provides a general account of prosecutorial practical reasoning (...) that can be applied to answer this question. Given that she argues that “particularly aggressive prosecution” is in at least some cases justified, the later chapters of the book address issues surrounding the victims of domestic violence: their rights and duties when it comes to prosecution and the measures that might be directed against victims who are unwilling to co-operate.What Dempsey calls her “central analytic tool” in .. (shrink)

Michelle Madden Dempsey’s compelling book sets out a normative feminist argument as to why and when prosecutors should continue to pursue prosecutions in domestic violence cases where the victim refuses to participate in or has withdrawn their support for the prosecution. This paper will explore two of the key aspects of her argument—the centrality and definition of the concept of patriarchy, and the definition of domestic violence—before concluding with some final thoughts as to the appropriate parameters of (...) feminist prosecutorial decision-making. The paper argues that Madden Dempsey could offer a more detailed and nuanced argument about the role that patriarchy plays, particularly its relevance in marking out appropriate cases for pursuit; and that her thesis requires a more convincing exposition of the precise reasons for offering such a narrow account of domestic violence. (shrink)

This paper clarifies and defends my account of the rights forfeiture theory of punishment in response to analyses by Michelle Madden Dempsey and Gerald Lang.

In 'Law as a Leap of Faith' Gardner's analogy of faith in law to faith in God may seem outlandish. But consider the implications of the positions Gardner's jurisprudential views assemble: law can give us reason to do what we would otherwise not have reason to do - in fact it can give us reason to do what would otherwise be immoral. This is the implication of a commitment to law's capacity to give exclusive reasons, on one hand, together with (...) the commitment, on the other, that any given law is valid because of its sources and not its moral merits. (shrink)

In Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Madden Dempsey focuses on the dilemma prosecutors face when domestic violence victims are unwilling to cooperate in the criminal prosecution of their abusive partners. Starting from the premise that the ultimate goal should be putting an end to domestic violence, Dempsey urges prosecutors to act as feminists in deciding how to proceed in such cases. Doing so, Dempsey argues, will tend to make the character of the prosecutor’s (...) community and state less patriarchal and thus help stamp out domestic violence. This article analyzes two issues arising from Dempsey’s work: first, whether prosecutors can justifiably be viewed as representatives of their states and communities; and, second, how prosecutors committed to using their discretion to battle both domestic violence and patriarchy would go about determining in a particular case whether to pursue criminal charges against the wishes of a victim. (shrink)

I am very grateful to the contributors for this symposium for their essays on my Punishment book. Each focuses with different elements of my work. Antony Duff examines the definition of punishment in my first few pages. Michelle Madden Dempsey analyses the importance given to coherence in my account and critique of expressivist theories of punishment. Richard Lippke considers my statements about negative retributivism in an important new defence of that approach. I examine each of these in (...) turn below. While I do not change my position, they draw attention to certain features in my overall argument worth reflecting on at greater length. So I welcome this opportunity to address and clarify these now and grateful for their helping me to rethink my original arguments. (shrink)

In July 2020, the H3Africa Ethics and Community Engagement (E&CE) Working Group organised a webinar with ethics committee members and biomedical researchers from various African institutions throughout the Continent to discuss the issue of whether and how biological samples for scientific research may be accessed by commercial entities when broad consents obtained for the samples are silent. 128 people including Research Ethics Committee members (10), H3Africa researchers (46) including members of the E&CE working group, biomedical researchers not associated with H3Africa (...) (27), representatives from the National Institutes of Health (16) and 10 other participants attended the webinar and shared their views. Several major themes emerged during the webinar, with the topics of broad versus explicit informed consent, defining commercial use, legacy samples and benefit sharing prevailing in the discussion. This report describes the consensus concerns and recommendations raised during the meeting and will be informative for future research on ethical considerations for genomic research in the African research context. (shrink)

This paper is a short commentary on Michelle Dempsey's contribution to a symposium on the work of John Finnis which took place at Villanova Law School in the fall of 2011. It focuses on Finnis's claim that there is a presumptive obligation to obey the law and some worries that Dempsey raises against this claim. It is forthcoming, along with several other papers from the symposium, in the Villanova Law Review.

Although mental health professionals traditionally have been viewed as sole experts and decision-makers, there is increasing awareness that the experiential knowledge of former patients can make an important contribution to mental health practices. I argue that current patients likewise possess a kind of expertise, and that including them as active participants in diagnosis and treatment can strengthen their autonomy and allow them to build up important habits and skills. To make sense of these agential benefits and describe how patients might (...) act as co-regulators of a therapeutic encounter, I look to the enactivist notion of “participatory sensemaking”. (shrink)

Philosophers disagree about what the folk concept of pain is. This paper criticises existing theories of the folk concept of pain, i.e. the mental view, the bodily view, and the recently proposed polyeidic view. It puts forward an alternative proposal – the polysemy view – according to which pain terms like “sore,” “ache” and “hurt” are polysemous, where one sense refers to a mental state and another a bodily state, and the type of polysemy at issue reflects two distinct but (...) related concepts of pain. Implications with respect to issues in philosophy of pain are also drawn. (shrink)

There is growing concern that decision-making informed by machine learning (ML) algorithms may unfairly discriminate based on personal demographic attributes, such as race and gender. Scholars have responded by introducing numerous mathematical definitions of fairness to test the algorithm, many of which are in conflict with one another. However, these reductionist representations of fairness often bear little resemblance to real-life fairness considerations, which in practice are highly contextual. Moreover, fairness metrics tend to be implemented in narrow and targeted toolkits that (...) are difficult to integrate into an algorithm’s broader ethical assessment. In this paper, we derive lessons from ethical philosophy and welfare economics as they relate to the contextual factors relevant for fairness. In particular we highlight the debate around acceptability of particular inequalities and the inextricable links between fairness, welfare and autonomy. We propose Key Ethics Indicators (KEIs) as a way towards providing a more holistic understanding of whether or not an algorithm is aligned to the decision-maker’s ethical values. (shrink)

Recent research in psycholinguistics suggests that language processing frequently involves mental imagery. This paper focuses on visual imagery and discusses two issues regarding the processing of polysemous words (i.e. words with multiple related meanings or senses) – co-predication and sense-relatedness. It aims to show how mental imagery can illuminate these two issues.

It is often thought that sensible qualities such as colours do not exist as properties of physical objects. Focusing on the case of colour, I discuss two views: the Galilean view, according to which colours do not exist as qualities of physical objects, and the naive view, according to which colours are, as our perception presents them to be, qualities instantiated by physical objects. I argue that it is far from clear that the Galilean view is better than the naive (...) view. Given the arguments in this paper, the naive view ought to be taken seriously. The discussion here appeals especially to theorists who, like Goff, are already convinced that the quantitative language of physical science fails to capture all qualities. (shrink)

It is often said that there is no appearance/reality distinction with respect to consciousness. Call this claim ‘NARD’. In contemporary discussions, NARD is closely connected to the thesis of revelation, the claim that the essences of phenomenal properties are revealed in experience, though the connection between the two requires clarification. This paper distinguishes different versions of NARD and homes in on a particular version that is closely connected to revelation. It shows how revelation and the related version of NARD pose (...) a threat to physicalism. Responses from physicalism and their limitations are also considered. (shrink)

Michelle Kosch examines the conceptions of free will and the foundations of ethics in the work of Kant, Schelling, and Kierkegaard. She seeks to understand the history of German idealism better by looking at it through the lens of these issues, and to understand Kierkegaard better by placing his thought in this context. Kosch argues for a new interpretation of Kierkegaard's theory of agency, that Schelling was a major influence and Kant a major target of criticism, and that both (...) the theory and the criticisms are highly relevant to contemporary debates. (shrink)

In this consensus report by a diverse group of academics who conduct and/or are concerned about social and behavioral genomics (SBG) research, the authors recount the often‐ugly history of scientific attempts to understand the genetic contributions to human behaviors and social outcomes. They then describe what the current science—including genomewide association studies and polygenic indexes—can and cannot tell us, as well as its risks and potential benefits. They conclude with a discussion of responsible behavior in the context of SBG research. (...) SBG research that compares individuals within a group according to a “sensitive” phenotype requires extra attention to responsible conduct and to responsible communication about the research and its findings. SBG research (1) on sensitive phenotypes that (2) compares two or more groups defined by (a) race, (b) ethnicity, or (c) genetic ancestry (where genetic ancestry could easily be misunderstood as race or ethnicity) requires a compelling justification to be conducted, funded, or published. All authors agree that this justification at least requires a convincing argument that a study's design could yield scientifically valid results; some authors would additionally require the study to have a socially favorable risk‐benefit profile. (shrink)

Ad hoc concepts feature prominently in lexical pragmatics. A speaker can use a word or phrase to communicate an ad hoc concept that is different from the lexically encoded concept and the hearer can construct the intended ad hoc concept pragmatically during utterance comprehension. I argue that some philosophical concepts have origins as ad hoc concepts, and such concepts pose a challenge for experimental philosophy regarding these concepts. To illustrate this, I consider philosophers’ ‘what-it’s-like’-concepts and experimental philosophy of consciousness.

What is given to us in conscious experience? The Given is an attempt to answer this question and in this way contribute to a general theory of mental content. The content of conscious experience is understood to be absolutely everything that is given to one, experientially, in the having of an experience. Michelle Montague focuses on the analysis of conscious perception, conscious emotion, and conscious thought, and deploys three fundamental notions in addition to the fundamental notion of content: the (...) notions of intentionality, phenomenology, and consciousness. She argues that all experience essentially involves all four things, and that the key to an adequate general theory of what is given in experience lies in giving a correct specification of the nature of these four things and the relations between them. (shrink)

This paper focuses on historic anthropological photographs, meant to depict Indigenous individuals as generic models of colonial stereotypes, and examines their later reclamation as portraits. Applying an intention-based account of portraiture, we discuss the historical context and contemporary examples of the utilisation of these images in order to address several questions. What happens when the depicted persons in colonial imagery are treated and presented as sitters, rather than model specimens? Does this change the nature of the image? If a photograph (...) was not originally intended as a portrait, can it come to function as such at a later stage? Regardless of whether they fulfill all the requirements necessary for portraiture, these colonial photographs represent a vital resource for the reclamation of Indigenous cultural heritage. As such, this paper serves as an introductory discussion into the complex issues surrounding the recategorisation, repatriation, and restitution of colonial photographic archives. (shrink)

This volume is the first to bring together original work by leading philosophers and psychologists in an examination of the moral psychology of contempt.

Using the turn of the century blackface performer Bert Williams as a case study, this essay explores how we might think about black male performativity in the New World as a historical formation, one that extends both over the time of modernity and across the space of diaspora. I draw from contemporary theories of circum-atlantic performance and black feminist studies of the impact of slavery on black racial and gendered identities, to argue that performance affords a unique window into how (...) blackness is constructed in a space between the black male performer and his equally racialized New World audience. The essay theorizes a notion of key black male performances as ‘signature acts’, then explores discussions of minstrelsy by other black American writers such as Ralph Ellison, Ishmael Reed, and the black British writer Caryl Phillips. Using Fanon's notions of triple-consciousness in tandem with Brechtian and Freudian theories of alienated performances and jokes, the essay concludes with a brief analysis of some of the gendered significations in lyrics from Bert Williams’ first musical comedy and then also in a novel about the performer by Caryl Phillips. (shrink)

First published: 2010; Previous edition: 2012..

Dyadic play fighting occurs in many species, but only humans are known to engage in coalitional play fighting. Dyadic play fighting is hypothesized to build motor skills involved in actual dyadic fighting; thus, coalitional play fighting may build skills involved in actual coalitional fighting, operationalized as forager lethal raiding. If human psychology includes a motivational component that encourages engagement in this type of play, evidence of this play in forager societies is necessary to determine that it is not an artifact (...) of agricultural or industrial conditions. We examine whether coalitional play fighting appears in the hunter-gatherer record and includes motor skills used in lethal raiding. Using the ethnographic record, we generated a list of motor patterns regularly used in forager warfare. Then, using Murdock’s Ethnographic Atlas, we identified 100 culture clusters containing forager societies and searched the ethnographic records of these societies for descriptions of coalitional play fighting, operationalized as contact games played in teams. Resulting games were coded for the presence of eight motor patterns regularly used in forager lethal raiding. Although play does not tend to be systematically documented in the hunter-gatherer literature, sufficiently detailed descriptions of coalitional play were found for 46 of the 100 culture clusters: all 46 exhibited coalitional play using at least one of the predicted motor patterns; 39 exhibited coalitional play using four or more of the eight predicted motor patterns. These results provide evidence that coalitional play fighting occurs across a diverse range of hunter-gatherer cultures and habitats, regularly recruits motor patterns used in lethal raiding, and is not an artifact of agricultural or industrial life. This is a first step in a new line of research on whether human male psychology includes motivations to engage in play that develops the deployment of coordinated coalitional action involving key motor patterns used in lethal raiding. (shrink)

An examination of the evidence for and the theoretical implications of a universal word order constraint, with data from a wide range of languages. This book presents evidence for a universal word order constraint, the Final-over-Final Condition (FOFC), and discusses the theoretical implications of this phenomenon. FOFC is a syntactic condition that disallows structures where a head-initial phrase is contained in a head-final phrase in the same extended projection/domain. The authors argue that FOFC is a linguistic universal, not just a (...) strong tendency, and not a constraint on processing. They discuss the effects of the universal in various domains, including the noun phrase, the adjective phrase, the verb phrase, and the clause. The book draws on data from a wide range of languages, including Hindi, Turkish, Basque, Finnish, Afrikaans, German, Hungarian, French, English, Italian, Romanian, Arabic, Hebrew, Mandarin, Pontic Greek, Bagirmi, Dholuo, and Thai. FOFC, the authors argue, is important because it is the only known example of a word order asymmetry pertaining to the order of heads. As such, it has significant repercussions for theories connecting the narrow syntax to linear order. (shrink)

One of humans’ distinctive cognitive abilities is that they develop an array of capacities through an enculturation process. In “Cognition as a Social Skill,” Sally points to one of the dangers associated with enculturation: ideological oppression. To conceptualize how such oppression takes root, Haslanager appeals to notions of mindshaping and social coordination, whereby people participate in oppressive social practices unthinkingly or even willingly. Arguably, an appeal to mindshaping provides a new kind of argument, grounded in philosophy of mind, which supports (...) the claims that feminist and anti-racist want to defend. However, some theorists worry that Haslanger’s account does not shed much light on how individuals could exert their agency to resist oppression. I argue that enactivist conceptions of mindshaping and habit can help us to make sense of the power of social influences and how they have the potential to both enable and undermine cognition and agency. This moves us toward increased understanding of the workings of social oppression—distinguishing between constructive and enabling forms of heteronomy, and overdetermining and pernicious modes that lead to atrophied moral cognition and a narrowing of the field of affordances. (shrink)