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Since his article, ‘Outline for a Decision Procedure in Ethics,’ John Rawls has advocated a coherentist moral epistemology according to which moral and political theories are justified on the basis of their coherence with our other beliefs, both moral and nonmoral (1951: 56, 61). A moral theory which is maximally coherent with our other beliefs is in a state which Rawls calls ‘reflective equilibrium’ (1971: 20). In A Theory of Justice Rawls advanced two principles of justice and claimed that they are in reflective equilibrium. He defended this claim by appeal to a hypothetical contract; he argued that parties in a position satisfying certain informational and motivational criteria, which he called ‘the original position,’ would choose the following two principles of justice to govern the basic structure of their society.
Anglo-American criminal law is broadly retributive in character, predicating blame and punishment on culpable or responsible wrongdoing. However, responsibility is scalar, and there is an important question of how criminal trials should handle cases of partial responsibility, especially in light of Blackstone’s belief that it is worse to overpunish than to underpunish. I examine four approaches: (1) a bivalent system with a comparatively low threshold for responsibility/excuse operative in American criminal law; (2) a trivalent system operative in some European criminal justice systems; (3) a tetravalent system, which rounds punishment downward in response to Blackstone’s asymmetry; and (4) a fully scalar analog system that aims at proportionate justice. A bivalent criminal justice system fails to deliver just deserts in significant ways. Proportionate justice is comparatively easy to understand in principle but potentially fragile in practice. Aiming at proportionate justice may minimize unjust deserts. However, if the difficulties of implementing proportionate justice are severe enough, we might prefer a discontinuous system that is more fine-grained than bivalence. Trivalent and tetravalent systems are alternatives worth exploring.
It would be hard to overstate the philosophical significance of John Rawls's TJ. It articulates and defends an egalitarian conception of liberalism and distributive justice that consists of two principles of justice: a principle of equal basic liberties and a principle that distributes social and economic goods and opportunities so as to be to the greatest benefit of the least advantaged. Rawls defends this liberal egalitarian conception of justice primarily as an alternative to utilitarianism. He situates his defense of this liberal egalitarian conception of justice within the social contract tradition by arguing that his principles of distributive justice would be preferred to utilitarianism and other rivals by parties to a social contract in which they were represented fairly, that is, as free and equal moral persons. This explains why Rawls calls his conception justice as fairness and the importance of the hypothetical original position as a way of modeling a fair initial position from which principles of justice might be selected. Rawls thinks not only that justice as fairness would be preferred to utilitarianism in a fair social contract but also that it provides a better reconstruction than utilitarianism of our considered views about individual rights and justice. Though Rawls's primary focus is on the justice of the basic structure of society, his critique of utilitarianism, his contractualist methodology, and his defense of equal basic rights have had much wider philosophical influence, extending to a variety of issues in ethical theory and normative ethics. In this way, the publication of TJ transformed and reinvigorated ethics as well as political philosophy.
Any assessment of justice as fairness must address the adequacy of Rawls's contractual argument for his two principles of justice and against utilitarian rivals. In this context it is worth noting that Rawls has two kinds of ambition. On the one hand, he has the substantial but comparatively modest ambition to defend a more egalitarian alternative to utilitarianism. He would succeed in this ambition insofar as parties in the original position would indeed prefer his two principles of justice to traditional utilitarian rivals. On the other hand, Rawls also has the more ambitious aim of showing his two principles of justice to be uniquely plausible, that is, to be superior to all reasonable alternatives.
This contribution reconstructs and assesses Yaffe's claims about what constitutes an attempt, what can count as evidence that an attempt has been made, whether abandonment is a genuine defense, and whether attempts should be punished less severely than completed crimes. I contrast Yaffe's account of being motivated by an intention and the completion of an attempt in terms of the truth of the completion counterfactual with an alternative picture of attempts as temporally extended decision trees that are complete insofar as the agent has progressed toward the final act in the tree. I suggest that this alternative scalar conception of attempt may provide a more plausible account of the defense of abandonment. I also raise questions about whether Yaffe has provided an adequate justification of his mix of luck skepticism about censure and luck realism about punishment.
The situationist literature in psychology claims that conduct is not determined by character and reflects the operation of the agent's situation or environment. For instance, due to situational factors, compassionate behavior is much less common than we might have expected from people we believe to be compassionate. This article focuses on whether situationism should revise our beliefs about moral responsibility. It assesses the implications of situationism against the backdrop of a conception of responsibility that is grounded in norms about the fair opportunity to avoid wrongdoing that require that agents to be normatively competent and possess situational control. Despite the low incidence of compassionate behavior revealed in situationist studies, situationism threatens neither situational control nor normative competence. Nonetheless situationism may force revision of our views about responsibility in particular contexts, such as wartime wrongdoing. Whereas a good case can be made that the heat of battle can create situational pressures that significantly impair normative competence and thus sometimes provide a full or partial excuse, there is reason to be skeptical of attempts to generalize this excuse to other contexts of wartime wrongdoing. If so, moral responsibility can take situationism on board without capsizing the boat.
Consequentialism is often criticized for failing to accommodate impersonal constraints and personal options. A common consequentialist response is to acknowledge the anticonsequentialist intuitions but to argue either that the consequentialist can, after all, accommodate the allegedly recalcitrant intuitions or that, where accommodation is impossible, the recalcitrant intuition can be dismissed for want of an adequate philosophical rationale. Whereas these consequentialist responses have some plausibility, associational duties represent a somewhat different challenge to consequentialism, inasmuch as they embody neither impersonal constraints nor personal options, but rather personal constraints. Our intuitions about associational duties resist capture within the intellectual net of consequentialism, and such duties do admit of a philosophical rationale at least as plausible as anything the consequentialist has to offer.
Chapter 11 of On Liberty contains John Stuart Mill's now classic defense of freedom of expression. This defense of expressive liberties has proved extremely influential and finds important echoes in First Amendment jurisprudence within United States constitutional law. Though important in its own right, Mill's defense of freedom of expression also plays an important, though sometimes overlooked, role in his more general defense of individual liberties. Mill turns to freedom of expression immediately after his introductory chapter in the belief that there is general agreement on the importance of freedom of expression and that, once the grounds for expressive liberties are understood, this agreement can be exploited to support a more general defense of individual liberties.
It will be convenient for the argument if, instead of at once entering upon the general thesis [the defense of various individual liberties], we confine ourselves in the first instance to a single branch of it on which the principle here stated is, if not fully, yet to a certain point, recognized by the current opinions. This one branch is the Liberty of Thought, from which it is impossible to separate the cognate liberty of speaking and writing. Although these liberties … form part of the political morality of all countries which profess religious toleration and free institutions, the grounds, both philosophical and practical, on which they rest are perhaps not so familiar to the general mind … Those grounds, when rightly understood, are of much wider application than to only one division of the subject, and a thorough consideration of this part of the question will be found the best introduction to the remainder.
Our commitment to the objectivity of ethics is a deep one. Ethics is objective just in case there are facts or truths about what is good or bad and right or wrong that obtain independently of the moral beliefs or attitudes of appraisers. A commitment to objectivity is part of a commitment to the normativity of ethics. Moral judgments express normative claims about what we should do and care about. As such, they presuppose standards of behavior and concern that purport to be correct, that could and should guide conduct and concern, and that we might fail to accept or live up to. Normativity, therefore, presupposes fallibility, and fallibility implies objectivity.1 Of course, this presupposition could be mistaken. There might be no objective moral standards. Our moral thinking and discourse might be systematically mistaken.2 But this would be a revisionary conclusion, to be accepted only as the result of extended and compelling argument that the commitments of ethical objectivity are unsustainable. In the meantime, we should treat the objectivity of ethics as a kind of default assumption or working hypothesis.
The prospects for moral realism and ethical naturalism have been important parts of recent debates within metaethics. As a first approximation, moral realism is the claim that there are facts or truths about moral matters that are objective in the sense that they obtain independently of the moral beliefs or attitudes of appraisers. Ethical naturalism is the claim that moral properties of people, actions, and institutions are natural, rather than occult or supernatural, features of the world. Though these metaethical debates remain unsettled, several people, myself included, have tried to defend the plausibility of both moral realism and ethical naturalism. I, among others, have appealed to recent work in the philosophy of language–in particular, to so-called theories of “direct reference” – to defend ethical naturalism against a variety of semantic worries, including G. E. Moore's “open question argument.” In response to these arguments, critics have expressed doubts about the compatibility of moral realism and direct reference. In this essay, I explain these doubts, and then sketch the beginnings of an answer–but understanding both the doubts and my answer requires some intellectual background.
In Principia Ethica, G. E. Moore used the open question argument (OQA) to deny that moral properties, such as Tightness or goodness, are natural or metaphysical (that is, supernatural) properties. Moral properties, on his view, are nonnatural and sui generis. The OQA attempts to establish this ontological or metaphysical thesis by semantic means. The OQA assumes that if moral properties are natural properties, then moral predicates can be defined in terms of natural predicates, which Moore apparently understood as nonmoral predicates drawn from the natural and social sciences (broadly construed).
The prospects for moral realism and ethical naturalism have been important parts of recent debates within metaethics. As a first approximation, moral realism is the claim that there are facts or truths about moral matters that are objective in the sense that they obtain independently of the moral beliefs or attitudes of appraisers. Ethical naturalism is the claim that moral properties of people, actions, and institutions are natural, rather than occult or supernatural, features of the world. Though these metaethical debates remain unsettled, several people, myself included, have tried to defend the plausibility of both moral realism and ethical naturalism. I, among others, have appealed to recent work in the philosophy of language—in particular, to so-called theories of “direct reference” —to defend ethical naturalism against a variety of semantic worries, including G. E. Moore's “open question argument.” In response to these arguments, critics have expressed doubts about the compatibility of moral realism and direct reference. In this essay, I explain these doubts, and then sketch the beginnings of an answer—but understanding both the doubts and my answer requires some intellectual background.
Hate speech employs discriminatory epithets to insult and stigmatize others on the basis of their race, gender, sexual orientation, or other forms of group membership. The regulation of hate speech is deservedly controversial, in part because debates over hate speech seem to have teased apart libertarian and egalitarian strands within the liberal tradition. In the civil rights movements of the 1960s, libertarian concerns with freedom of movement and association and equal opportunity pointed in the same direction as egalitarian concerns with eradicating racial discrimination and the social and economic inequalities that this discrimination maintained. But debates over hate speech regulation seem to force one to give priority to equality or to liberty. On the one hand, egalitarian concerns may seem to require restricting freedom of expression. Hate speech is an expression of discriminatory attitudes that have a long, ugly, and sometimes violent history. As such, hate speech is deeply offensive to its victims and socially divisive. Though one might well be reluctant to restrict speech, it might seem that the correct response to hate speech, as with other forms of discrimination, is regulation. On the other hand, libertarian concerns may seem to constrain the pursuit of equality. Though one may abhor hate speech and its effects, the cure might seem at least as bad as the disease. Freedoms of expression are among our most fundamental liberties. Offensive ideas are part of the price one must pay to protect these constitutional rights.
Much of traditional analytical jurisprudence concerns the nature of law and the relation between law and morality. One traditional debate about the nature of law concerns its objectivity or determinacy. A conception of law can be understood to be objective insofar as it represents the law in actual or hypothetical controversies as determining a uniquely correct outcome; it can be understood as skeptical insofar as it represents the law as indeterminate. Extreme skepticism would claim that the law is rarely, if ever, determinate, whereas complete objectivity would claim that the law is never indeterminate. By contrast, a more moderate skepticism maintains that the law is indeterminate when it is especially controversial what the law requires. Here, as elsewhere, extreme views may be difficult to accept. Few endorse complete objectivity; some strands in Legal Realism and in Critical Legal Studies appear to endorse extreme skepticism about the law; but moderate skepticism is probably the view more congenial to common sense.
Another traditional jurisprudential debate concerns the relation between law and morality. This debate is often cast between Legal Positivism and Natural Law. Whereas Natural Law theory asserts that there is some essential connection between law and morality, Legal Positivism denies this. In particular, Natural Law theory typically asserts that valid laws must have some significant moral content, without which they are not genuine legal norms.
It is common to regard love, friendship, and other associational ties to others as an important part of a happy or flourishing life. This would be easy enough to understand if we focused on friendships based on pleasure, or associations, such as business partnerships, predicated on mutual advantage. For then we could understand in a straightforward way how these interpersonal relationships would be valuable for someone involved in such relationships just insofar as they caused her pleasure or causally promoted her own independent interests. But many who regard love, friendship, and other associational ties as an important part of a happy or flourishing life suppose that in many sorts of associations— especially intimate associations—the proper attitude among associates is concern for the other for the other's own sake, not just for the pleasure or benefits one can extract from one's associates. It is fairly clear how having friends of this sort is beneficial. What is less clear is how being a friend of this sort might contribute to one's own happiness or well-being. Even if we can explain this, it looks as if the contribution that friendship makes to one's happiness could not be the reason one has to care for friends, for that would seem to make one's concern for others instrumental, not a concern for the other for her own sake.
It is common to regard love, friendship, and other associational ties to others as an important part of a happy or flourishing life. This would be easy enough to understand if we focused on friendships based on pleasure, or associations, such as business partnerships, predicated on mutual advantage. For then we could understand in a straightforward way how these interpersonal relationships would be valuable for someone involved in such relationships just insofar as they caused her pleasure or causally promoted her own independent interests. But many who regard love, friendship, and other associational ties as an important part of a happy or flourishing life suppose that in many sorts of associations—especially intimate associations—the proper attitude among associates is concern for the other for the other's own sake, not just for the pleasure or benefits one can extract from one's associates. It is fairly clear how having friends of this sort is beneficial. What is less clear is how being a friend of this sort might contribute to one's own happiness or well-being. Even if we can explain this, it looks as if the contribution that friendship makes to one's happiness could not be the reason one has to care for friends, for that would seem to make one's concern for others instrumental, not a concern for the other for her own sake.
Whether morality has rational authority is an open question insofar as we can seriously entertain conceptions of morality and practical reason according to which it need not be contrary to reason to fail to conform to moral requirements. Doubts about the authority of morality are especially likely to arise for those who hold a broadly prudential view of rationality. It is common to think of morality as including various other-regarding duties of cooperation, forbearance, and aid. Most of us also regard moral obligations as authoritative practical considerations. But heeding these obligations appears sometimes to constrain the agent's pursuit of his own interests or aims. If we think of rationality in prudential terms–as what would promote the agent's own interests–we may wonder whether moral conduct is always rationally justifiable. Indeed, we do not need to think of rationality in exclusively prudential terms to raise this worry. The worry can arise even if there are impartial reasons–that is, nonderivative reasons to promote the welfare of others.
What role, if any, should our moral intuitions play in moral epistemology? We make, or are prepared to make, moral judgments about a variety of actual and hypothetical situations. Some of these moral judgments are more informed, reflective, and stable than others (call these our considered moral judgments); some we make more confidently than others; and some, though not all, are judgments about which there is substantial consensus. What bearing do our moral judgments have on philosophical ethics and the search for first principles in ethics? Should these judgments constrain, or be constrained by, philosophical theorizing about morality? On the one hand, we might expect first principles to conform to our moral intuitions or at least to our considered moral judgments. After all, we begin the reflection that may lead to first principles from particular moral convictions. And some of our moral intuitions (e.g., that genocide is wrong) are more fixed and compelling than any putative first principle. If so, we might expect common moral beliefs to have an important evidential role in the construction and assessment of first principles. On the other hand, common moral beliefs often rest on poor information, reflect bias, or are otherwise mistaken. We often appeal to moral principles to justify our particular moral convictions or to resolve our disagreements. Insofar as this is true, we may expect first principles to provide a foundation on the basis of which to test common moral beliefs and, where necessary, form new moral convictions.
One of Sidgwick's concerns in The Methods of Ethics is with the structure of individual rationality. Theories of rationality are concerned with the way in which benefits and harms rationally ought to be allocated among persons and across time.
Theories might be classified by what they say about whose welfare matters. Person-neutral theories say that it is of no rational significance on whom a benefit or harm falls; an agent has reason to promote value, whether this value accrues to the agent or others. By contrast, a Personrelative theory insists that whom a benefit or harm befalls is of great rational significance to the agent. The most common form of person relativity is agent relativity; a theory is agent-relative if it insists that a benefit or harm must befall the agent to be of rational significance to her.
Theories of rationality might also be classified by their attitudes toward the temporal location of benefits and harms. A theory is temporally neutral if it is indifferent when benefits and harms occur; it is temporally relative if the temporal location of a benefit or harm affects its rational significance.
Sidgwick is a friend of rational egoism, although, as we shall see (Section 1), there are different interpretations of the constancy of his friendship. Rational egoism claims that an agent has reason to do x just in case, and insofar as, x is in her own interest, welfare, or happiness.
In my article “Legal Theory, Legal Interpretation, and Judicial Review” I tried to do three main things. First, I tried to establish a link between familiar issues within legal theory about the nature and determinacy of the law and familiar issues within constitutional theory about the scope and record of judicial review via their common dependency on assumptions about the nature of legal interpretation. Second, I argued that a proper theory of interpretation has at least two important components: a theory of the semantics of legal terms and a theory about how best to characterize the purposes or intentions underlying legal provisions. Third, I sketched my own account of these two components of legal interpretation and then explored their implications for these familiar disputes within legal theory and constitutional theory. In particular, the semantic claims that I outlined require us (a) to distinguish between the meaning or reference of legal terms and people’s beliefs about the extension of those terms and (b) to rely on theoretical considerations, of various kinds, in ascertaining the extension of general terms occurring in legal provisions. The account of underlying purpose that I sketched requires legal interpreters to identify the purpose of a legal provision with the abstract values that the framers of that provision sought to implement, rather than with the specific activities that they sought to regulate, and then to determine the extension of these values (i.e., the activities that these provisions, properly understood, do regulate) by appeal to theoretical considerations about the nature of these principles and policies. These interpretive claims, I argued, tend to vindicate a belief in the determinacy of the law in hard cases and the style, if not the content, of the Court’s exercise of judicial review in cases concerning individual rights, against worries that in these cases it has exceeded the scope of legitimate judicial review.
In my article “Legal Positivism and Natural Law Reconsidered” I suggested that we might be able to effect an interesting reconciliation of legal positivism (LP) and natural law theory (NL) by distinguishing two possible LP-NL debates. In particular, I suggested that we should distinguish, within legal philosophy, between theories of legal validity – that is, accounts of the existence conditions for valid law and theories (as I now would put it) of legal interpretation – and theories of adjudication – that is, accounts of how judges should decide cases. We can use this distinction to formulate two possible LPNL debates, one involving legal validity (LP1-NL1) and one involving adjudication (LP2-NL2). NL1 asserts and LP1 denies that the existence conditions for valid law and the theory of legal interpretation ensure that legal standards satisfy true or sound political morality to some significant extent. NL2 asserts and LP2 denies that the content of the correct or justifiable judicial decision must satisfy true or sound political morality to some significant extent. I sketched my own view of the relevant details of the theories of legal validity and adjudication and argued that these claims seem to vindicate LP1 and NL2 and so to allow a kind of reconciliation of LP and NL.
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