Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Is the state a collective agent? Are citizens responsible for what their states do? If not citizens, then who, if anyone, is responsible for what the state does? Many different sub-disciplines of philosophy are relevant for answering these questions. We need to know what “the state” is, who or what it's composed of, and what relation the parts stand in to the whole. Once we know what it is, we need to know whether that thing is an (...) agent, in particular a moral agent capable of taking moral responsibility for its actions. We have to know what it takes for it to be capable of moral responsibility, e.g., what the functional equivalents in groups are of knowledge, intention, foreseeability, recklessness, and so on. And once we've established that it is an agent, and is responsible for what it does, we have to explain whether and in what way this implicates members, i.e., whether state responsibility distributes to the members of states, whoever they may be. Answers to these questions come from metaphysics, social ontology, action theory, epistemology, political theory, and ethics. In what follows, we'll give an outline of some different ways of answering these questions. (shrink)

International law holds that states are holistically responsible for their acts. Yet what does the ascription of responsibility to the state imply about the responsibility of its citizens? This article argues that most citizens in a representative democracy bear culpability in association with their state's wrongful acts. Most democratic citizens can be blamed for empowering representatives to act on their behalf, and then failing to adequately oversee and dissent from the specific wrongful decisions their representatives made. This gives (...) culpable citizens duties that go beyond compensation, especially duties to foster a reparative social ethos towards state victims. (shrink)

Expressive theories of state action seek to identify and assess the ‘meaning’ implicit in state action, such as legislation and public policies. In expressive theories developed by relational egalitarians, state action must ‘express’ equal concern and respect for citizens. However, it is unclear how precisely we can determine and assess the meaning of what states do. This paper considers how an expressive theory could be developed, given the commitments of a relational account of equality, (...) and how such a theory would relate to relational egalitarianism more broadly. I suggest that expressive considerations should be tied more closely than they are in the current literature to agents’ attitudes and to their intentions. I discuss a range of real-world policies that are problematic for what they can be taken to express. (shrink)

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

There are many actions that we attribute, at least colloquially, to states. Given their size and influence, states are able to inflict harm far beyond the reach of a single individual. But there is a great deal of unclarity about exactly who is implicated in that kind of harm, and how we should think about responsibility for it. It is a commonplace assumption that democratic publics both authorize and have control over what their states do; that their states act in (...) their name and on their behalf. In Not In Their Name, Holly Lawford-Smith approaches these questions from the perspective of social ontology, asking whether the state is a collective agent, and whether ordinary citizens are members of that agent. If it is, and they are, there’s a clear case for democratic collective culpability. She explores alternative conceptions of the state and of membership in the state; alternative conceptions of collective agency applied to the state; the normative implications of membership in the state; and both culpability (from the inside) and responsibility (from the outside) for what the state does. Ultimately, Lawford-Smith argues for the exculpation of ordinary citizens and the inculpation of those working in public services. (shrink)

Crises of forced migration are, unfortunately, nothing new. At the time of the writing of this paper, at least two such crises were in full swing – mass movements from the Middle East and parts of Africa to the E.U., and major movements from Central America to the Southern U.S. border, including movements by large numbers of families and unaccompanied minors. These movements are complex, with multiple causes, and it is always risky to attempt to craft either general policy or (...) philosophical positions in response to salient crises. However, both of these instances do bring to the foreground important questions about the proper purpose and extent of refugee protection as a means of dealing with crises of forced migration. In particular, both of these instances force us to consider what role persecution on the basis of a protected ground – race, religion, nationality, membership in a particular social group, or political opinion – ought to play in granting refugee protection, and whether our response to those in danger should change if the agents of persecution are non-state actors. This paper is not primarily about the problems arising from Syria or Central America. In a way similar to how hard cases make bad law, I contend that a too central focus on salient crises tends to lead to bad theory and often to bad general policy. However, if I am successful in my goal of clarifying the place of persecution and non-state action in refugee protection, then we may in turn be better able to think clearly about our current crisis situations. -/- In this paper I will first draw on my previous work on the normative logic of the refugee convention to argue that, while persecution should play an important, and even central, role in our thinking about refugees, this importance is shallow and pragmatic rather than deep and fundamental. Next, I will show how this conclusion supports the claim that harms amounting to persecution by non-state actors may ground an asylum claim, at least in some cases, both when the state is unwilling and when it is unable to protect its members. I consider two cases: first, instances where the authority and power of the state has been usurped by another power, and second, when the state has (implicitly or explicitly) delegated its power or authority to non-state actors. I will show how this leads to extending asylum to a broader range of people than traditional accounts would. -/- (To download this paper, please use the link from SSRN below.). (shrink)

Recent years have seen a notable surge in scholarship on the life and thought of B. R. Ambedkar (1891–1956). This essay contributes to this literature by uncovering heretofore underemphasized aspects of how Ambedkar theorized the relationships between caste oppression, democracy, and state action. The essay demonstrates that, particularly in the period from 1936 to 1947, Ambedkar closely attended to the pathological imbrications between caste society and representative institutions in India; that he theorized an alternative, ambitious conception of democracy (...) that encompassed the social and political spheres; and that he framed the state, and Dalit presence within the state, as a uniquely appealing instrument to transition from the former arrangement to the latter. In addition to filling gaps in the scholarship on Ambedkar, this interpretation offers important resources for contemporary democratic theory—in particular by countering perspectives that remain overly skeptical of the state’s capacity to move against social oppression in ways that enable, rather than inhibit, collective self-government. (shrink)

Anna Stilz claims that citizens of democratic states bear “task responsibility” to repair unjust harms done by their states. I will argue that the only situation in which Stilz’s argument for such “task responsibility” is not redundant, given her own premises, is a situation where the state leaves it up to the citizens whether to indemnify others for the harms done by the state. I will also show that Stilz’s “authorization view” rests on an unwarranted and implausible assumption (...) (which I call “the authorization principle”) about authorization and political obligation, and that this problem cannot be remedied by limiting the account to democratic states. I will then briefly turn to Pasternak’s account of citizen responsibility for state action and argue that it suffers from two deficiencies: first, she equates group membership with collective action, and second, she does not provide any explanation as to why citizens should incur liability for the acts of their state under the four conditions she highlights. I conclude that neither Stilz nor Pasternak succeed in showing that at least citizens of democratic states are liable (barring very special circumstances) for the acts of their states. (shrink)

As the Minister of Public Instruction in Berlin in 1808 Humboldt founded the University of Berlin and reorganized the Prussian Gymnasium. Later, he served in several diplomatic posts, became a Prussian envoy to the Papal court, and in 1818 was for a brief period Minister of the Interior. However, the reader should be aware that Humboldt wrote The Limits of State Action in 1791 at the age of 24 after resigning his first minor post in the Prussian administration. (...) At that time he admitted that he had found administration ‘geistlos’, and this reaction may have accounted in part for his general antipathy toward state interference on behalf of the positive welfare of citizens. His belief that the vitality of a nation arises solely from the spontaneous and diverse creative energies of its citizens clearly contributed to this antipathy. (shrink)

One objection to the principle of public reason is that since there is room for reasonable disagreement about distributive justice as well as about human flourishing, the requirement of reasonable acceptability rules out redistribution as well as perfectionism. In response, some justificatory liberals have invoked the argument from higher-order unanimity, or nested inclusiveness. If it is not reasonable to reject having some system of property rights, and if redistribution is just the enforcement of a different set of property rights, redistribution (...) is legitimate if chosen democratically. This article explores two problems with this response. First, there are different ways to describe the set of possible policies, and so different ways to specify the noncoercive default that obtains in the absence of conclusive justification. Second, if the coercive exercise of political power must be conclusively justified, policies that are more coercive ought to require conclusive justification as against policies that are less coercive. These problems about the baseline with respect to which we require public justification raise the question of how we measure coercion, and whether or in what sense there is a presumption against coercion. The article distinguishes and argues against three such presumptions. (shrink)

Not in Their Name: Are Citizens Culpable for Their States’ Actions?, by Lawford-SmithHolly. Oxford: Oxford University Press, 2020. Pp. viii + 185.

In his introduction to this selection of writings Hans Reiss makes the claim that Kant is not generally regarded in English-speaking countries as a political philosopher of any special significance. He gives several reasons for this neglect and misunderstanding by historians of philosophy and even by Kantian scholars. These historians have neglected Kant’s political writings because the philosophy of his three critiques has absorbed their attention almost entirely. Then too, they have not focused on his political philosophy because he did (...) not write a masterpiece in this field. Also, Kant’s works of critical philosophy are so formidable that they have made his political writings appear to historians of philosophy as much less weighty and have helped to encourage the mistaken assumption by these historians that the latter are not central to his thought. Furthermore, the rise of nationalism has prevented Kant’s work from being the dominant force in German political thought in the nineteenth and early twentieth centuries which it might easily have been. The Romantic mode of thought instilled in German political thought an element of irrationalism which permeated almost all areas of German thinking for a century and a half between the Napoleonic wars and the end of the Second World War. (shrink)

This volume is a reissue of an 1889 translation of Fichte’s third book, Grundlage des Naturrechts nach Principien der Wissenschaftslehre, which first appeared in Jena in 1796. Fichte here attempts to reconcile his belief in the sacredness of the rights of the individual with his conviction that the individual is a member of a community of rational beings, and thus man develops his moral self only through relationship to others. ‘…Ego is the individual, the rational being determined as such through (...) opposition to another rational being’. His thesis is that human rights are essentially social rights and that, since the freedom of the individual implies responsibility, concrete freedom is necessarily finite. This affirmation of the limitation of a self by its relation to other selves corresponds with Fichte’s exposition of the mutual limitation of the ego and the non-ego in his theory of the intellect in his Science of Knowledge. Fichte declares that the fundamental principle of The Science of Rights is that each individual must restrict his freedom through the conception of the possibility of the freedom of the other. (shrink)

ABSTRACTThis paper assesses one type of justification for collective liability – the democratic authorization account – according to which citizens can be held liable for what their state does, because they collectively authorize the state’s actions. I argue that the democratic authorization view, properly understood, has an implausibly narrow scope, which risks leaving many victims of injustice without compensation. Hence, I propose a subsidiary account that is wider in scope, and which applies to most cases of state-inflicted (...) harm. This view picks out liable agents on the basis of their ability to bear the compensatory burdens, the incentives that the prospect of liability give citizens to hold their states in check, and distributive concerns. Lastly, I address the relationship between citizens who are collectively liable for some harm, and citizens who are to some extent morally responsible. (shrink)

We address recent interpretations of infant performance on spontaneous false belief tasks. According to most views, these experiments show that human infants attribute mental states from a very young age. Focusing on one of the most clearly worked out, minimalist versions of this idea, Butterfill and Apperly's "minimal theory of mind" framework, we defend an alternative characterization: the minimal theory of rational agency. On this view, rather than conceiving of social situations in terms of states of an enduring mental substance (...) animating agents, infant interpreters parse observed bouts of behavior and their contexts into goals, rational means to those goals, and available information. In other words, the social ontology of infant interpreters consists in goal-directed, informed bouts of behavior, by non-enduring agents, rather than agents animated by states of enduring, unobservable minds. We discuss a number of experiments that support this interpretation of infant socio-cognitive competence. (shrink)

This paper aims to offer a preliminary explication of the role of and the relation between mental states, action, and blame in Medhātithi’s commentary on the most influential juridical text of the Sanskrit world – the jurisprudential text attributed to Manu. In defining what it means to act and what constitutes engaging in intentional and unintentional action, this paper makes three claims. First, enjoined actions (e.g., sacrifices) require particular mental states to be performed. Notwithstanding the role of mental (...) states in enjoined actions, actions lacking the corresponding mental states can be blameworthy. In fact, unintentional actions (including also actions done intentionally, but under a description that foregoes what renders the conduct sanctionable) can indeed constitute blameworthy conduct. Second, although unintentional action still meets the threshold for constituting blameworthy conduct, mental states generally play an important role regarding the degree of blame assignable to a person. Third, there are several possible rules that make sense of the seemingly inconsistent use and impact of intention throughout Manu’s Code of Laws as Medhātithi’s commentary shows. The paper also sheds light on the relation between intentions and desires according to Medhātithi. (shrink)

The present article discusses Dietrich von Hildebrand’s theory of action as presented in his Die Idee der sittlichen Handlung, and focuses on the moral relevance Hildebrand assigns to diff erent kinds of motivations. The act of will which leads to a moral action, Hildebrand claims, can be “founded” or “motivated” in different ways and, in particular, it can be motivated by an act of cognizing or by an act of value-taking. The act of cognizing grasps the state (...) of aff airs that the action strives to bring about as a deontic state of aff airs, i.e., as a state of aff airs that ought to be. By contrast, the act of value-taking is primarily directed towards the values inhering in this state of aff airs. Although both kinds of motivations are morally sound, Hildebrand argues that the latter is preferable due to its vicinity to values and to its immediacy in the way in which it grasps values. In what follows, Hildebrand’s view is reconstructed, assessed and evaluated against the background of Adolf Reinach’s theory of intentionality. More specifically, two elements of Reinach’s thought are highlighted as being central for Hildebrand’s understanding of the notion of an action. First, it is argued that Hildebrand’s idea of the act of willing as a stance that can be founded either by an act of cognizing or by an act of presentation is developed in strict symmetry with Reinach’s view that conviction is a stance that can be founded by means of an identical mechanism. Secondly, it will be shown that Hildebrand adopts the notion of a state of affairs from Reinach. (shrink)

This paper tackles the problem of inference in normative systems where norms concerning actions and states of affairs appear together. A deontic logic of actions and states is proposed as a solution. It is made up of two independent deontic logics, namely a deontic logic of action and a deontic logic of states, interlinked by bridging definitions. It is shown at a language and a model level how an agent should look for norms to follow in a concrete situation. (...) It is pointed out that such specific norms are obtained by finding the most specific obligation and the most general prohibition. They are to be derived from all norms applicable to the situation by using the principles of the logic presented in this paper. (shrink)

Philosophers and neuroscientists often suggest that we perceptually represent objects and their properties. However, they start from very different background assumptions when they use the term “perceptual representation”. On the one hand, sometimes philosophers do not need to properly take into consideration the empirical evidence concerning the neural states subserving the representational perceptual processes they are talking about. On the other hand, neuroscientists do not rely on a meticulous definition of “perceptual representation” when they talk about this empirical evidence that (...) is supposed to show that we perceptually represent such and such properties. It seems that, on both sides, something is missed. My aim is to show that, in the light of empirical evidence from neuroscience, the case of action properties is a good candidate in order to properly talk of perceptually represented properties. My claim is that the neurophysiological states encoding action properties are perceptual processes and that these perceptual processes are representational processes. That is, in the case of those neurophysiological states involved in the detection of action properties, it is correct to speak of perceptual representational states, and hence, ipso facto, of perceptually represented properties. First, I describe a reasonable and widely agreed upon conception of perceptual representation in the philosophical literature. Then, I report evidence from vision and motor neuroscience concerning the perception of action properties, which is subserved by the ventro-dorsal stream, a portion of the dorsal visual system. Finally, I show that a strong connection can be found between the philosophical idea of perceptual representation I have reported before and the neuroscientific evidence concerning the activity of the ventro-dorsal stream, whose job is, as said, to detect action properties. (shrink)

This study examines 14,900 disciplinary actions by the professional licensing boards for attorneys, CPAs, and physicians in four states from 2008 through 2014. It was found that both attorneys and physicians are disciplined at a rate at least seven times that of CPAs. While the majority of disciplinary actions are for misconduct directly related to the professional practice, nearly 14% of sanctions were the result of “social crimes” such as failure to pay child support or student loans, driving under the (...) influence, and general unprofessional conduct. The severity of licensure sanctions varied with the cause for discipline, but was inconsistent both within and between jurisdictions. These results raise important questions about the purpose and performance of state licensing boards and possible reasons for inequitable treatment. Additionally, the widespread and severe sanctions for conduct not related to the professional practice suggest that moral turpitude clauses may violate both equal protection and prohibitions on excessive fines. (shrink)

Reforms in post-Mao China have led to the rise of social movements and collective action. The FalunGong movement, a semi-religious movement, in particular has caught worldwide attention. Indeed, social protests have become a norm in China.

Based on the Lotka–Volterra system, a pest-natural enemy model with nonlinear feedback control as well as nonlinear action threshold is introduced. The model characterizes the implementation of comprehensive prevention and control measures when the pest density reaches the nonlinear action threshold level depending on the pest density and its change rate. The mortality rate of the pest is a saturation function that strictly depends on their density while the release of natural enemies is also a nonlinear pulse term (...) depending on the density of real-time natural enemies. The exact impulsive and phase sets are given. The definition and properties of the Poincaré map corresponding to the pulse points on the phase set are provided. We investigate the existence and stability of boundary and interior order-1 periodic solution. The theoretical analysis developed in the present paper combined with nonlinear controlling measures as well as nonlinear action threshold methods and techniques laid the foundation for the establishment and analysis of other state-dependent feedback control models. (shrink)

This paper constructs a theory according to which an intention is not a mental state but an action at a certain developmental stage. I model intention on organic life, and thus intention stands to action as tadpole stands to frog. I then argue for this theory by showing how it overcomes three problems: intending while merely preparing, not taking any steps, and the action is impossible. The problems vanish when we see that not all actions are (...) mature. Just as some frogs are immature frogs, some actions are immature actions. (shrink)

Unlike most countries, the United States and Israel have employed the class action procedure for decades. This Article compares the two countries’ class action regimes and examines how the device has evolved in those countries. It examines the current procedures, as well as proposed reforms. It also compares class action statistics in the two countries relating to filings and outcomes. We demonstrate the many common features between the United States and Israeli class action procedures. As we (...) illustrate, these common features have led to robust class action practices in both countries. At the same time, there are profound differences between the types of class actions filed and their outcomes. Thus, while Israel has many more class actions than the United States on a per capita basis, the cases are much less consequential from a monetary and subject matter perspective. We explore possible explanations for these observations. Furthermore, this study identifies features — utilized by the United States and Israel — that can serve as models for other countries that are adopting or amending their own class action regimes. (shrink)