We regularly wield powers that, upon close scrutiny, appear remarkably magical. By sheer exercise of will, we bring into existence things that have never existed before. With but a nod, we effect the disappearance of things that have long served as barriers to the actions of others. And, by mere resolve, we generate things that pose significant obstacles to others' exercise of liberty. What is the nature of these things that we create and destroy by our mere decision to do (...) so? The answer: the rights and obligations of others. And by what seemingly magical means do we alter these rights and obligations? By making promises and issuing or revoking consent When we make promises, we generate obligations for ourselves, and when we give consent, we create rights for others. Since the rights and obligations that are affected by means of promising and consenting largely define the boundaries of permissible action, our exercise of these seemingly magical powers can significantly affect the lives and liberties of others. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

Negligence is a problematic basis for being morally blamed and punished for having caused some harm, because in such cases there is no choice to cause or allow—or risk causing or allowing—such harm to occur. The standard theories as to why inadvertent risk creation can be blameworthy despite the lack of culpable choice are that in such cases there is blame for: (1) an unexercised capacity to have adverted to the risk; (2) a defect in character explaining why one did (...) not advert to the risk; (3) culpably acquiring or failing to rid oneself of these defects of character at some earlier time; (4) flawed use of those practical reasoning capacities that make one the person one is; or (5) chosen violation of per se rules about known precautions. Although each of these five theories can justify blame in some cases of negligence, none can justify blame in all cases intuitively thought to be cases of negligence, nor can any of these five theories show why inadvertent creation of an unreasonable risk, pure and simple, can be blameworthy. (shrink)

In this piece, I argue that promises need not be kept just because they were made. This is not to say, however, that unwise, unhappy, and unfortunate promises do not generate obligations. When broken promises will result either in wrongful gains to promisors or wrongful losses to promisees, obligations of corrective justice will demand that such promises be kept if their breach cannot be fully repaired. Thus, when a broken promise will constitute a deliberate loss transfer for personal gain, the (...) duty not to exact unjust enrichment will require a promisor either to honor her promise or craft a means of ensuring that the promisee’s impoverishment is not traded for her enrichment. And when a broken promise will constitute the culpable imposition of a reliance-based injury on a nonculpable promisee, the duty to make others whole when one has purposefully, knowingly, or recklessly injured them will require one either to keep one’s promise or to fashion a remedy for its breach that ensures that the promisee is left no worse off than he would be had the promise not been made. This account explicitly parts ways with normative powers theories of promising. It places no weight at all on the raw fact that a promise has been made. Instead, it locates the gravamen of a promissory violation in the harm that is caused to a promisee who nonculpably relies upon and changes her position in anticipation of the prediction about the promisor’s future conduct that is embedded in his promise. Absent any adverse reliance on the part of a promisee, there is nothing that gives rise to an obligation of performance or repair on the part of the promisor. But this account is also to be distinguished from utilitarian theories that take promises to be instruments of wealth maximization that properly give way whenever the reason for honoring them speaks in favor of violating them. On my account, the balance of reasons for action that determines the morality of performance includes deontological rights and duties, agent-relative permissions, and Hohfeldian liberties. As I shall argue, even if one rightly concludes that one has no duty either to keep a promise or to craft a remedy for its breach, one must nevertheless remember that virtue requires one to be or become the kind of person who often goes beyond the call of duty. But the fact that virtue often requires us to do what we have no duty to do should not cause us to confuse its conditions with the conditions of right and wrong action. We have a duty to keep promises or to otherwise protect the reliance interests that they generate only when failing to do so will lead either to our own unjust enrichment or to others’ unjust injury. And this means that we have a duty to keep promises in far fewer circumstances than is commonly believed. (shrink)

The article examines what has come to be known as "the risk analysis" in Anglo-American tort law and contract law. The risk analysis essentially consists of: viewing negligence as a relational concept, so that a defendant is never simply negligent tout cour, but is negligent only with respect to certain persons and certain harms — other harms suffered by other persons are said not to be "within the risk" that makes the defendant negligent; and the supplanting of proximate cause doctrine (...) with doctrines of duty, the duty question being determined by the question of whether a certain person and a certain harm are within the risk that makes a defendant negligent. The article aims to explode entirely the risk analysis. After beginning with an examination of the historical roots of the risk analysis, we then seek to show that the risk analysis is: conceptually incoherent because it seeks to isolate a risk that makes someone negligent; normatively undesirable because it allows quite blameworthy actors not to pay for the harms they culpably cause; and descriptively inaccurate of the cases decided on the more traditional, proximate cause bases. (shrink)

This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the (...) end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law. (shrink)

In this Symposium contribution, I argue that ordinary moral discourse recognizes six categories of morally significant actions: positively obligatory actions ; negatively obligatory actions ; supererogatory actions ; suberogatory actions ; quasi-supererogatory actions ; and amoral or morally neutral actions . As I argue, super-, sub-, and quasi-supererogatory actions paradoxically rely upon the existence of "non-obligatory oughts"--moral injunctions to do what as a moral matter we need not do. The remainder of the article is devoted to developing a theory that (...) makes these non-obligatory oughts coherent. The theory that I advance distinguishes deontic duties from aretaic duties, and derives the oughts of super- and suberogation from our aretaic duties to develop certain dispositions or character traits. As I argue, our aretaic duties require us to perform actions that are deontically supererogatory and to refrain from actions that are deontically suberogatory. Only if we conceive of super- and suberogation as simultaneously governed by deontic permissions and aretaic obligations can we make sense of the dual claims implicit in daily gossip that we are obligated to cultivate such virtues as kindness and generosity, and that kindness and generosity consist in doing what we are not obligated to do. As the title elliptically suggests, the article thus advances the claim that we have duties to go beyond the call of duty. (shrink)

In diesem Beitrag werde ich die Wege untersuchen, auf denen Moraltheoretiker philosophischen Sinn in der These entdecken könnten, daß das Gesetz die moralische Schlechtigkeit von Personen dadurch tolerieren sollte, daß es den Bürgern Rechte zuerkennt, moralisch Falsches zu tun. Dabei vernachlässige ich Fälle, in denen diese Toleranz deshalb angemessen erscheint, weil die Moralität des in Rede stehenden Verhaltens ungewiss oder jedenfalls unter gleichermaßen vernünftigen Personen hinreichend umstritten ist, so daß die Gewährung von Freiheit auch für den Staat als das angemessene (...) Mittel erscheint, die Problematik zu lösen. Stattdessen werde ich mich auf Fälle konzentrieren, in denen der Gesetzgeber davon überzeugt ist, daß das betreffende Verhalten tadelnswert ist, so daß weder Zweifel noch Uneinigkeit über die Bewertung des Verhaltens als ausreichende Gründe dafür genannt werden können, daß der Staat sich der Sache nicht annimmt.Wie ich im 1. Teil zeige, kann sowohl von konsequentialistischen als auch von deontologischen Moraltheorien angenommen werden, daß sie unmoralisches Verhalten erlauben, das keine Verletzung von konsequentialistischen bzw. deontologischen Pflichten darstellt. Regel-Konsequentialisten verlangen Toleranz für akt-konsequentialistisch betrachtete Verstöße, sofern sie im Rahmen ihrer Regeln erfolgen; und Deontologen fordern Toleranz für kategorisch erlaubte Taten, die sub-optimale Konsequenzen haben. Im Hinblick darauf, daß wir eine Tugenpflicht haben könnten, uns zu Personen zu entwickeln, die deontologische Erlaubnisse nicht mißbrauchen, untersuche ich eine Reihe von Gründen, die es nahe legen, daß diejenigen, die sich einer Moraltheorie der Tugendpflichten verbunden fühlen, die die Besorgnis um Handlungen durch eine Besorgnis um den Charakter der Person ersetzt, gleichwohl gute Gründe dafür hat, die Kultivierung eines guten Charakters außerhalb der Reichweite des Staates zu belassen.Die Problematik wird schwieriger, wenn wir von den unmoralischen Handlungen, die keine Pflichten verletzen , zu den unmoralischen Handlungen übergehen, die solche Pflichten verletzen. Kann ein Konsequentialist sich damit einverstanden erklären, daß der Staat Personen die Freiheit zugesteht, etwas zu tun, was konsequentialistisch verboten ist? Kann ein Deontologe nicht nur die Freiheit, Erlaubnisse zu missbrauchen, verteidigen, sondern auch die Freiheit, kategorische Verbote zu verletzen? Im 2. Teil des vorliegenden Beitrages vertrete ich die These, daß es durchaus einleuchtende Gründe dafür geben mag, daß Freiheit entweder intrinsisch oder instrumentell gut ist, um andere intrinsisch gute Dinge zu bewirken, in welchem Fall Konsequentialisten gute Gründe dafür haben, daß der Staat grundsätzlich moralische Schlechtigkeit tolerieren sollte, oder sie zumindest dann tolerieren sollte, wenn dies der Preis dafür ist, größeres Gutes zu befördern. Im 3. Teil behaupte ich, daß selbst unsere beste deontologische Theorie Maximen in sich aufnehmen kann, die es dem Gesetzgeber kategorisch verbieten, den Bürgern die Verletzung kategorischer Maximen zu verbieten. So kann es dem Gesetzgeber z.B. verboten sein, in die Privatsphäre der Bürger einzugreifen, um das Fehlverhalten von Bürgern zu ermitteln. Oder es kann dem Gesetzgeber auferlegt sein, nicht etwas zu verbieten, wenn er dieses Verbot nicht gegenüber allen Bürgern durchsetzen kann.Das Ergebnis meiner Analyse ist, daß die Theorie liberaler Toleranz nicht von der Behauptung vernünftigen Zweifels und der Uneinigkeit zwischen Gesetzgeber und Bürgern abhängt, wie es unter liberalen Politikwissenschaftlern oftmals voraus-gesetzt wird. Selbst dann, wenn vernünftige Personen sich darüber einig sind, daß eine bestimmte Art von Verhalten unmoralisch ist, und selbst dann, wenn bei dem Gesetzgeber kaum Zweifel an der Unmoralität des Verhaltens vorhanden sind, gibt es doch schwerwiegende moralische Gründe dafür, weshalb der Gesetzgeber moralisch verpflichtet sein kann, die Begehung unmoralischer Handlungen zu tolerieren. In this article I explore the ways in which moral theorists might make philosophical sense of the claim that the law ought to tolerate moral wickedness by according citizens legal rights to do moral wrongs. I set aside cases in which tolerance is proper because the morality of the conduct in question is uncertain or sufficiently contested by equally reasonable persons so as to make liberty the appropriate default solution for the state. Instead, I confine my inquiry to cases in which lawmakers are confident that the conduct in question is blameworthy, so that doubt and disagreement cannot be said to be sufficient reasons for staying the hand of the state. As I argue in Part I, both consequentialist and deontological moral theories can be thought to permit immoralities that are not violations of consequentialist or deontological obligations. Rule-consequentialists require tolerance of act-consequential wrongs that are done in the name of their rules; and deontologists require tolerance of consequentially sub-optimal deeds that are categorically permitted. While we may have aretaic obligations to become the kinds of persons who do not abuse deontological permissions, I explore a series of reasons to think that those who subscribe to an aretaic moral theory that substitutes concerns for character for concerns for actions will nevertheless have good grounds to place the cultivation of good character beyond the scope of the state. The question is harder when we move from immoralities that do not violate obligations to immoralities that do violate such obligations. Can consequentialists make sense of the state according persons liberty to do what is consequentially prohibited? Can deontologists defend not just the liberty to misuse permissions but the liberty to violate categorical prohibitions? I argue in Part II that there may be sound arguments for why liberty is either intrinsically good or instrumentally good for the achievement of other intrinsically good things, in which case, consequentialists have sounds reasons for supposing that the state ought to tolerate wickedness, tu cour , or tolerate it when it is a price that purchases greater goods. And I argue in Part III that our best deontological theory may contain within it maxims that categorically prohibit legislators from prohibiting violations of categorical maxims on the part of citizens. For example, they may be enjoined from invading citizens' privacy in the ways required to detect citizens' wrongdoing; or they may be enjoined not to prohibit what they cannot equally enforce against all. The upshot of my analysis is that a theory of liberal tolerance does not depend upon claims of reasonable doubt and disagreement amongst lawmakers and citizens, as is so often supposed amongst liberal political theorists. Even if reasonable persons agree that a kind of conduct is immoral, and even if lawmakers are in little doubt about its immorality, there are powerful moral reasons why lawmakers might be morally obligated to tolerate its persistence. (shrink)

This chapter explores reasons to doubt the defensibility of the “weak theory of sustainability” that informs and justifies the use of cost-benefit analysis by environmental regulators. As the argument reveals, inasmuch as the weak theory equates what is sustainable with what sustains the satisfaction of human preferences, it has the surprising philosophical wherewithal to make climate-changing activities sustainable, at least in principle. This would be so if human ingenuity made possible the replacement of ecosystem services with technological alternatives. And it (...) would be particularly so if the aesthetic goods that derive from nature – goods which are resistant to quantification – are excluded from environmental cost-benefit analyses. But it is also true if those aesthetic goods are reduced to mere human preferences that can be measured through indirect market-based means, for aesthetic preferences are remarkably adaptive.Inasmuch as people can be expected to come to appreciate landscapes degraded by climate change, those who defend a weak theory of sustainability can expect that climate change will not long be at odds with what people find aesthetically pleasing. However, as the growing literature on “nature-deficit disorder” suggests, while aesthetic preferences may be elastic, aesthetic needs are not. As climate change progressively strips us of nature’s goods, we will lose the ability to meet crucial aesthetic needs. The irony is clear: As our aesthetic preferences bend towards the acceptance of ecological loss, we will predictably lose our preferences for meeting our own enduring aesthetic needs. We can thus expect climate change to cause us to prefer what we do not need and to need what we do not prefer. And this implies that climate change is the reductio ad absurdum of the weak theory of sustainability that dominates contemporary environmental regulation. (shrink)

“We overpunish and overcriminalize,” Douglas Husak insists in his latest book-length tour de force entitled Overcriminalization: The Limits of the Criminal Law.1 In what ways and by what mea...

Criminal provisions governing the treatment of animals collectively embody inconsistencies that reflect deep-seated ambivalence about who counts as the victim of animal cruelty, what constitutes the wrong of such cruelty, and what role punishment ought to play in response to it. In the first part, I shall sketch how animal cruelty laws embody tensions and contradictions that make manifest the criminal law’s need for philosophical clarity. In the second part, I shall argue that one way to bring a modicum of (...) order to animal cruelty provisions is to recognize that their cross-cutting prohibitions and permissions respond to, and perhaps exploit, competing understandings of whether one, some, or all of the five principles of legislation appropriately inform the reach of the criminal law. I shall, accordingly, unpack the significant doctrinal disagreements about when and why we should punish animal abusers by working through the ways in which animal cruelty provisions appear to be responsive to inconsistent views about the very point of the criminal law. (shrink)

This chapter synthesizes Michael Moore’s scholarly opus, organizing the breathtaking array of topics that he has tackled, restating the field-changing theses that he has defended, and extracting a set of common themes that define the essential components of his intellectual legacy. Along the way, it draws upon personal experiences in Michael’s life that may have influenced his scholarly choices. On pain of committing the genetic fallacy, the piece does not purport either to bolster or to debunk any of his claims (...) simply by explaining them in terms of their causal antecedents. Still, the causal antecedents of beliefs can be interesting for their own sake. So the project is to provide a systematic and comprehensive taxonomy of Michael’s work and to salt it with biographical events, relationships, triumphs, and traumas that illuminate how personal the ideas that have defined his prolific academic career to date have been. (shrink)

This book explores the thesis that legal roles force people to engage in moral combat, an idea which is implicit in the assumption that citizens may be morally required to disobey unjust laws, while judges may be morally required to punish citizens for civil disobedience. Heidi Hurd advances the surprising argument that the law cannot require us to do what morality forbids. The 'role-relative' understanding of morality is shown to be incompatible with both consequentialist and deontological moral philosophies. In the (...) end, Hurd shows that our best moral theory is one which never makes one actor's moral success turn on another's moral failure. Moral Combat is a sophisticated, well-conceived and carefully argued book on a very important and controversial topic at the junction between legal and political philosophy. It will be of interest to moral, legal, and political philosophers, as well as teachers and students of professional ethics in law. (shrink)

Drawing inspiration from the profoundly influential work of legal theorist Larry Alexander, this volume tackles central questions in criminal law, constitutional law, jurisprudence, and moral philosophy. What are the legitimate conditions of blame and punishment? What values are at the heart of constitutional protections against discrimination or infringements of free speech? Must judges interpret statutes and constitutional provisions in ways that comport with the intentions of those who wrote them? Can the law obligate us to violate the demands of morality, (...) and when can the law allow the rights of the few to be violated for the good of the many? This collection of essays by world-renowned legal theorists is for anyone interested in foundational questions about the law's authority, the conditions of its fair application to citizens, and the moral justifications of the rights, duties, and permissions that it protects. (shrink)

This article details the degree to which the ideal of punishment proportional to desert forces changes in how we think of deontological morality. More specifically, the proportionality ideal forces us to abandon the simple, text-like view of deontological moral norms, and it forces us to acknowledge that those norms are not uniformly categorical in their force.

:This essay undertakes two tasks: first, to describe the differing mens rea requirements for accomplice liability of both Anglo-American common law and the American Law Institute's Model Penal Code; and second, to recommend how the mens rea requirements of both of these two sources of criminal law in America should be amended so as to satisfy the goals of clarity and consistency and so as to more closely conform the criminal law to the requirements of moral blameworthiness. Three "pure models" (...) of the mens rea requirements for complicity are distinguished, based on the three theories of liability conventionally distinguished in the general part of Anglo-American criminal law. One of these, the vicarious responsibility model, is put aside initially because of both its descriptive inaccuracy and its normative undesirability. The analysis proceeds using the other two models: that of the mens rea requirements for principal liability for completed crimes, and that of the mens rea requirements for attempt liability. Both the common law and the Model Penal Code are seen as complicated admixtures of these two models, the common law being too narrow in the scope of its threatened liability and the Model Penal Code being both too broad and too opaque in its demands for accomplice liability. The normative recommendation of the paper is to adopt the model for the mens rea of complicity that treats it as a form of principal liability, recognizing that the overbreadth of liability resulting from adoption of that model would have to be redressed by adopting a "shopkeeper's privilege" as an affirmative defense separate from any mens rea requirement. View HTML Send article to KindleTo send this article to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle. Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply. Find out more about the Kindle Personal Document Service.UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Your Kindle email address Please provide your Kindle [email protected]@kindle.com Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Dropbox To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Send article to Google Drive To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive. UNTYING THE GORDIAN KNOT OF MENS REA REQUIREMENTS FOR ACCOMPLICESVolume 32, Issue 2Heidi M. Hurd and Michael S. Moore DOI: https://doi.org/10.1017/S0265052516000157Available formats PDF Please select a format to send. By using this service, you agree that you will only keep articles for personal use, and will not openly distribute them via Dropbox, Google Drive or other file sharing services. Please confirm that you accept the terms of use. Cancel Send ×Export citation Request permission. (shrink)