In this response to the review of Moore, Causation and Responsibility, by Larry Alexander and Kimberly Ferzan, previously published in this journal, two issues are discussed. The first is whether causation, counterfactual dependence, moral blame, and culpability, are all scalar properties or relations, that is, matters of more-or-less rather than either-or. The second issue discussed is whether deontological moral obligation is best described as a prohibition against using another as a means, or rather, as a prohibition on an agent strongly (...) causing a prohibited result that was not about to happen anyway while intending to do so. (shrink)

This essay replies to the thoughtful commentaries, by Michael Bratman, David Brink, Larry Alexander, and Michael Moore, on my book Attempts.

In addition to being one of the greatest technical philosophers of the twentieth century, John Dewey was an educational innovator, a Progressive Era reformer, and one of America’s last great public intellectuals. Dewey’s insights into the problems of public education, immigration, the prospects for democratic government, and the relation of religious faith to science are as fresh today as when they were first published. His penetrating treatments of the nature and function of philosophy, the ethical and aesthetic dimensions of life, (...) and the role of inquiry in human experience are of increasing relevance at the turn of the 21st century. Based on the award-winning 37-volume critical edition of Dewey’s work, The Essential Dewey presents for the first time a collection of Dewey’s writings that is both manageable and comprehensive. The volume includes essays and book chapters that exhibit Dewey’s intellectual development over time; the selection represents his mature thinking on every major issue to which he turned his attention. Eleven part divisions cover: Dewey in Context; Reconstructing Philosophy; Evolutionary Naturalism; Pragmatic Metaphysics; Habit, Conduct, and Language; Meaning, Truth, and Inquiry; Valuation and Ethics; The Aims of Education; The Individual, the Community, and Democracy; Pragmatism and Culture: Science and Technology, Art and Religion; and Interpretations and Critiques. Taken as a whole, this collection provides unique access to Dewey’s understanding of the problems and prospects of human existence and of the philosophical enterprise. (shrink)

In addition to being one of the greatest technical philosophers of the twentieth century, John Dewey was an educational innovator, a Progressive Era reformer, and one of America’s last great public intellectuals. Dewey’s insights into the problems of public education, immigration, the prospects for democratic government, and the relation of religious faith to science are as fresh today as when they were first published. His penetrating treatments of the nature and function of philosophy, the ethical and aesthetic dimensions of life, (...) and the role of inquiry in human experience are of increasing relevance at the turn of the 21st century. Based on the award-winning 37-volume critical edition of Dewey’s work, The Essential Dewey presents for the first time a collection of Dewey’s writings that is both manageable and comprehensive. The volume includes essays and book chapters that exhibit Dewey’s intellectual development over time; the selection represents his mature thinking on every major issue to which he turned his attention. Eleven part divisions cover: Dewey in Context; Reconstructing Philosophy; Evolutionary Naturalism; Pragmatic Metaphysics; Habit, Conduct, and Language; Meaning, Truth, and Inquiry; Valuation and Ethics; The Aims of Education; The Individual, the Community, and Democracy; Pragmatism and Culture: Science and Technology, Art and Religion; and Interpretations and Critiques. Taken as a whole, this collection provides unique access to Dewey’s understanding of the problems and prospects of human existence and of the philosophical enterprise. (shrink)

This editorial, introducing the Journal for Theoretical & Marginal Mathematics Education, is historically situated in a moment when the field of mathematics education research is on the precipice of acknowledging that the old world is dying. That is to say, the way research has been done before is no longer adequate for operating within the White, Colonial, cis-hetero Patriarchal, Abled Capitalist dystopia we find ourselves. This inadequacy is, however, not a reason for despair but instead for celebration. Instead of directing (...) our resources towards reifying existing norms and structures, towards adopting exhausted methods and theories—as is the way of the old world—we can instead foster a ‘new aesthetics’ of mathematics education research, wherein we remake the very material that constitutes mathematics education research itself. In doing so, we engage with the politics of the margins of mathematics education research. We discuss the critical, philosophical, and psychoanalytic as three potential, but non-exhaustive, departures from mathematics education research as it has been. Each of these marginal approaches, in their own way, points to the ways that presuming a fixed mathematics education research enacts exclusionary politics and precludes change. Let this be our manifesto, written from the margins, for a more root-grasping, more self-reflective, and freer mathematics education research. (shrink)

This is the second volume in a sub-series of specially commissioned collaborative volumes on key topics at the heart of contemporary philosophy of law that will be appearing regularly within Cambridge Studies in Philosophy and Law. A distinguished international team of legal theorists examine the issue of constitutionalism and pose such foundational questions as: why have a constitution? How do we know what the constitution of a country really is? How should a constitution be interpreted? Why should one generation feel (...) bound by the constitution of an earlier one? The volume will be of particular importance to those in philosophy, law, political science and international relations interested in what kinds of constitutions should be adopted in countries without them, and involved in debates about constitutional interpretation. (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

Legal and social norms regarding gender relations have undergone dramatic changes in the past 25 years. The changes have come about largely because of the confluence of changing economic and technological realities, the unfolding of the norm dictating equal treatment of individuals, the sexual revolution and its corollaries of improved contraception and legal abortion, the rise of women as a self-conscious group and a presence in the academy, and the interrelations of all of these factors. As men and women have (...) come to share dormitories and workplaces, and as the old mores governing sex—and male-female relations in general—have broken down, there has been struggle and uncertainty over what norms should apply to sexual relations. (shrink)

In his recently published Donner le temps II, Derrida raises, but does not develop, the possibility that Heidegger's notion of Gelassenheit (‘releasement’, ‘letting-be’) might escape the economic confines of exchange, debt, and repayment and therefore qualify as a pure gift. In this paper, I explore this possibility, explaining that Gelassenheit would have to be understood, first, not primarily as a human comportment but at the level of being itself, second, beyond appropriation, and third, as ‘without why’. If Heidegger's focus on (...) appropriation in ‘Time and Being’ remains entangled in the economy of exchange (as Derrida insinuates in the final session of Donner le temps II), Heidegger's anarchic treatment of ‘letting’ ( laisser, Lassen) in the final session of his 1969 seminar in Le Thor opens instead onto a ‘pure giving’ ( pur donner, reines Geben). (shrink)

In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.

In 2009 Larry Alexander and Kimberly Ferzan published Crime and Culpability: A Theory of Criminal Law. The book set out a theory that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Reflections on Crime and Culpability: Problems and Puzzles expands on their innovative ideas on the application of punishment in criminal law. Theorists working in criminal law theory presuppose or ignore puzzles that lurk beneath the surface. Now those who wish to (...) examine these topics will have one monograph that combines the disparate puzzles in criminal law through a unified approach to culpability. Along with some suggestions as to how they might resolve the puzzles, Alexander and Ferzan lay out the arguments and analysis so future scholars can engage with questions about our understanding of culpability that very few have addressed. (shrink)

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

In this provocative book, Alexander offers a sceptical appraisal of the claim that freedom of expression is a human right. He examines the various contexts in which a right to freedom of expression might be asserted and concludes that such a right cannot be supported in any of these contexts. He argues that some legal protection of freedom of expression is surely valuable, though the form such protection will take will vary with historical and cultural circumstances and is not a (...) matter of human right. Written in a clear and accessible style, this book will appeal to students and professionals in political philosophy, law, political science, and human rights. (shrink)

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; (...) and he cannot account for punishment of inchoate crimes. (shrink)

In this article I defend what Mark Greenberg has labeled the standard picture of law against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the standard picture’s conception of it has moral virtues that Greenberg's own moral impact theory and Hershovitz’s similar theory lack. Moreover, it avoids a vicious circularity that bedevils Greenberg’s theory.

Although discussions of John Rawls’ A Theory of Justice generally refer to Rawls’ two principles of justice, and although Rawls himself labels his principles “the two principles of justice”, Rawls actually sets forth three distinct principles in the following lexical order: the liberty principle, the fair equality of opportunity principle, and the difference principle. Rawls argues at some length for the priority of the liberty principle over the other two. On the other hand, Rawls offers hardly any argument at all (...) for the priority of the fair equality of opportunity principle over the difference principle. In this article I will argue that making the fair equality of opportunity principle separate from and lexically prior to the difference principle is both intuitively unattractive and inconsistent with Rawls’ method of deriving principles of justice from the choices of rational contractors in the original position. (shrink)

In the moral realm, our deontic judgments are usually (always?) binary. An act (or omission) is either morally forbidden or morally permissible. 1 Yet the determination of an act's deontic status frequently turns on the existence of properties that are matters of degree. In what follows I shall give several examples of binary moral judgments that turn on scalar properties, and I shall claim that these examples should puzzle us. How can the existence of a property to a specific degree (...) demarcate a boundary between an act's being morally forbidden and its not being morally forbidden? Why aren't our moral judgments of acts scalar in the way that the properties on which those judgments are based are scalar, so that acts, like states of affairs, can be morally better or worse rather than right or wrong? I conceive of this inquiry as operating primarily within the realm of normative theory. Presumably it will give aid and comfort to consequentialists, who have no trouble mapping their binary categories onto scalar properties. For example, a straightforward act utilitarian, for whom one act out of all possible acts is morally required (and hence permissible) and all others morally forbidden, can, in theory at least, provide an answer to every one of the puzzles I raise. And, in theory, so can all other types of act and rule consequentialists. They will find nothing of interest here beyond embarrassment for their deontological adversaries. The deontologists, however, must meet the challenges of these puzzles. And for them, the puzzles may raise not just normative questions, but questions of moral epistemology and moral ontology. Just how do we know that the act consequentialist's way of, say, trading off lives against lives is wrong? For example, do we merely intuit that taking one innocent, uninvolved person's life to save two others is wrong? Can our method of reflective equilibrium work if we have no theory by which to rationalize our intuitions? And what things in the world make it true, if it is true, that one may not make the act consequentialist's tradeoff? I do not provide any answers to these questions any more than I provide answers to the normative ones. But they surely lurk in the background. (shrink)

Retributivism is generally thought to forbid the punishment of the innocent, even if such punishment would produce otherwise good results, such as deterrence. It has recently been argued that because capital punishment always entails the risk of executing an innocent person, instituting capital punishment is tantamount to intentionally taking innocent lives and therefore cannot be justified on retributive grounds. I argue that there are several versions of retributivism, only one of which might categorically forbid risking punishing innocent persons. I also (...) argue that our moral practices reveal either that we do not hold this particular version of retributivism, or that we reject equating risking punishing the innocent with intentionally doing so. *** DIRECT SUPPORT *** A9102008 00005. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...) penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of (...) deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly. (shrink)

Freedom of association, as I understand it, refers to the liberty a person possesses to enter into relationships with others—for any and all purposes, for a momentary or long-term duration, by contract, consent, or acquiescence. It likewise refers to the liberty to refuse to enter into such relationships or to terminate them when not otherwise compelled by one's voluntary assumption of an obligation to maintain the relationship. Freedom of association thus is a quite capacious liberty.

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in (...) my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” ; “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration. (shrink)

Gideon Yaffe's Attempts is a masterfully executed philosophical investigation of what it means to attempt something. Yaffe is obviously motivated by the fact that the criminal law punishes attempted crimes, and he believes that his philosophical analysis can shed light on and be used to criticize the law's understanding of those crimes. I focus exclusively on the relevance of Yaffe's philosophical analysis of attempts to the criminal law of attempts. I assume that Yaffe's account of what it is to attempt (...) something is basically correct and ask whether the criminal law uses in the way Yaffe uses it, and whether it should use Yaffe's conception of an attempt. I conclude that a lot of criminal-law doctrine, including, very importantly, the influential Model Penal Code's treatment of attempts, is inconsistent with Yaffe's conception of attempts. Because Yaffe is principally interested in what it means to attempt something rather than in the criminal law's treatment of attempts, I believe he misanalyzes the problem of factual versus legal impossibility. And Yaffe's chapter on inherently impossible attempts concludes by positing a quite paradoxical type of criminal attempt, one that is indeed an attempt but for which the defendant should not be convicted because the evidence of its commission is insufficient. I find Yaffe's argument to this effect opaque and therefore unconvincing. (shrink)

Although discussions of John Rawls’ A Theory of Justice generally refer to Rawls’ two principles of justice, and although Rawls himself labels his principles “the two principles of justice”, Rawls actually sets forth three distinct principles in the following lexical order: the liberty principle, the fair equality of opportunity principle, and the difference principle. Rawls argues at some length for the priority of the liberty principle over the other two. On the other hand, Rawls offers hardly any argument at all (...) for the priority of the fair equality of opportunity principle over the difference principle. In this article I will argue that making the fair equality of opportunity principle separate from and lexically prior to the difference principle is both intuitively unattractive and inconsistent with Rawls’ method of deriving principles of justice from the choices of rational contractors in the original position. (shrink)

Iconoclasts? Who, Us? A Reply to Dolinko Content Type Journal Article Category Original Paper Pages 1-7 DOI 10.1007/s11572-012-9143-3 Authors Larry Alexander, San Diego, CA, USA Kimberly Kessler Ferzan, Camden, NJ, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.

The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)