This paper explores analyzing criminal responsibility from the Humean position that blame is for character traits. If untoward acts indicate undesirable character traits, then the agent is blameworthy; if they do not, then the actor is not blameworthy — he has an excuse. A distinctive feature of this approach is that that voluntariness of acts is irrelevant to determining blameworthiness.This analysis is then applied to a variety of issues in criminal law. Mens supports inferences to character traits, and the Humean (...) approach provides a reason for rejeting strict criminal liability. The Humean approach also helps resolve a number of issues about attempts, such as punishment for impossible attempts and the defense of abandonment. It also supports the broad outlines of the defense of mistake and provides a third alternative in the Wooton-Hart debate over punishment and treatment. (shrink)
This work presents, interprets, and largely defends the legal philosophy of H.L.A. Hart, except for his account of causation. Hart is considered by many persons to be the most important English writer on jurisprudence in the 20th century. The book considers his general theory of law, his theory of rights and of the enforcement of morality, and his analysis of the conditions of legal resposibility and the justification of punishment.
The first part of this paper attempts to clarify the presuppositions and purposes of civil disobedience and to argue against an alleged right to civil disobedience. The second part of the paper analyzes various sorts of considerations relevant from an agent's point of view in deciding whether or not to engage in civil disobedience. The overall conclusion reached in this paper is that while there is no right to civil disobedience as such, given a moral system compatible with the assumptions (...) made in this paper, some instances of civil disobedience may be justifiable. Not only may it be justifiable to break a law itself deemed immoral, but even to violate one considered moral and just in order to protest the existence or absence of another law, regulation or policy. (shrink)
In “Ideals and the Concept of Morality,” John T. Granrose criticizes R. M. Hare’s theory of morals for not providing good and sufficient reasons for rejecting the ideals of fanatics, e.g., Nazis and other racists. He then attempts to do what Hare admittedly failed to do by developing an argument based on a material or social concept of morality. Granrose claims that his argument “wins by default! In the absence of a rational counterargument by the fanatic, the issue is settled”. (...) In this discussion I shall not be concerned with Granrose’s strictures about Hare’s theory. Instead, I shall show that Granrose does not win by default for the fanatic has a rational counterargument. For convenience, I shall confine my discussion to racism as a form of fanaticism. (shrink)
A continuing issue of contract law is what purported contracts should be legally enforced. This article considers what principles rational persons would want courts to use in enforcing commitments in a society in which they expected to live. By reviewing the promise, economic value, and reasonable expectations approaches, the principles of freedom of transfer, enforceable commitments, and collective good are developed. Then, less general principles of consideration, past benefits, reliance, gratuitous commitments, and contract modification are presented. These latter principles specify (...) the more general principle of legally enforceable commitments. The resulting set of principles provide the basic outlines of legally enforceable commitments that would be acceptable to rational persons living in a contemporary, industrialized Western common-law society. (shrink)
An ideal rule-Utilitarian theory is presented which incorporates some of the advantages of those based on accepted rules. The theory attempts to maximize welfare for a society of imperfect men. First an ideal moral code is explicated. Second a principle of a practical moral code is explicated which in effect prohibits violating rules of an ideal moral code except when general conformity to an ideal rule would have bad consequences.
Shue's aim is to show that a set of economic rights are as basic as civil and political rights to security and to some forms of liberty. Rights are taken to provide the rational basis for a justified demand that the actual enjoyment of a substance be guaranteed against standard threats. Security rights are to physical security, and subsistence rights are to minimal economic security--adequate food, clothing, shelter, etc. Shue's strategy is to show that the same structure of argument which (...) supports security rights as basic also supports subsistence rights. Security rights are basic, not because they are intrinsically satisfying, but because without physical security no other rights can be enjoyed. Similarly, Shue argues, one cannot enjoy other rights without food, health, etc. A similar analysis is given of rights to political participation and freedom of movement. (shrink)
Shue's aim is to show that a set of economic rights are as basic as civil and political rights to security and to some forms of liberty. Rights are taken to provide the rational basis for a justified demand that the actual enjoyment of a substance be guaranteed against standard threats. Security rights are to physical security, and subsistence rights are to minimal economic security--adequate food, clothing, shelter, etc. Shue's strategy is to show that the same structure of argument which (...) supports security rights as basic also supports subsistence rights. Security rights are basic, not because they are intrinsically satisfying, but because without physical security no other rights can be enjoyed. Similarly, Shue argues, one cannot enjoy other rights without food, health, etc. A similar analysis is given of rights to political participation and freedom of movement. (shrink)
