This paper assesses employees’ moral agency within corporate capitalism from a politically liberal standpoint. While political liberalism has spelt out its key institutional implications at state level, it has neglected moral agency at work, assuming that a rights-based state that secures freedom of contract, free choice of occupation and a free labour market within a fair context would protect it sufficiently. Yet two features of corporate capitalism constrain employees’ moral agency: the relation of authority that forms part of the work (...) contract and organisations’ fragmented decision-making processes. Both seem at odds with the liberal ideal of allowing people to live by their own conception of the good. Consequently, this paper examines whether political liberalism should recommend greater safeguards for protecting workers’ moral agency. It proposes a criterion for assessing corporate capitalism: the ‘moral space’ defined as the socially shaped opportunities for action that can be enacted or endorsed from a comprehensive perspective. It argues that liberals should favour arrangements that widen workers’ moral space and suggests institutional designs that may achieve this while remaining within liberal boundaries. (shrink)

A theory of property needs to give an account of the whole life-cycle of a property right: how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and has almost completely neglected the question of the initiation and termination of property in normal production and consumption (not in some original state or in the transition from common to private property). The institutional mechanism for the normal initiation and termination of property is an invisible-hand function (...) of the market, the market mechanism of appropriation. Does this mechanism satisfy an appropriate normative principle? The standard normative juridical principle is to assign or impute legal responsibility according to de facto responsibility. It is given a historical tag of being "Lockean" but the basis is contemporary jurisprudence, not historical exegesis. Then the fundamental theorem of the property mechanism is proven which shows that if "Hume's conditions" (no transfers without consent and all contracts fulfilled) are satisfied, then the market automatically satisfies the Lockean responsibility principle, i.e., "Hume implies Locke." As a major application, the results in their contrapositive form, "Not Locke implies Not Hume," are applied to a market economy based on the employment contract. It is shown the production based on the employment contract violates the Lockean principle (all who work in an employment enterprise are de facto responsible for the positive and negative results) and thus Hume's conditions must also be violated in the marketplace (de facto responsible human action cannot be transferred from one person to another—as is readily recognized when and employer and employee together commit a crime). (shrink)

Devant le constat du déclin toujours plus rapide de la diversité biologique et les limites des res- sources disponibles pour l’enrayer, il est nécessaire de déterminer quels moyens devraient être engagés dans sa protection. Pour ce faire, une méthode efficace serait d’évaluer les bénéfices tirés de la biodiversité afin d’estimer rationnellement les coûts légitimes de sa protection. L’évaluation économique, qui se présente d’emblée sur un mode quantitatif, serait alors un outil précieux. Dans ce texte, nous présentons différentes méthodes d’évaluation économique (...) de la biodiversité ainsi que certaines de leurs limites méthodologiques. Par la suite, nous montrons qu’en dépit de ses avantages pratiques, l’évaluation économique échoue à représenter l’ensemble des valeurs en jeu dans la protection de la biodiversité. Nous décrivons alors trois types de valeurs incommen- surables avec des bénéfices économiques : la valeur de legs, qui renvoie aux obligations de trans- mission du patrimoine naturel dont nous avons hérité ; la valeur d’existence, qui renvoie à la considération morale d’intérêts autres que ceux des êtres humains ; la valeur de transformation, qui renvoie à la capacité d’examiner et de critiquer nos préférences et inclinaisons afin d’inclure celles-ci dans une vision du monde rationnelle et cohérente. Pour conclure, nous plaidons en faveur de l’élaboration de méthodes de concertation et d’évaluation participatives et pluralistes permettant de rendre compte de la diversité et de l’hétérogénéité des valeurs de la biodiversité. (shrink)

This paper argues that luck egalitarianism, especially in the guise of equality of opportunity for welfare, is in tension with the ideal of fair equality of opportunity in three ways. First, equal opportunity for welfare is compatible with a caste system in employment that is inconsistent with open competition for positions. Second, luck egalitarianism does not support hiring on the basis of qualifications. Third, amending luck egalitarianism to repair this problem requires abandoning fair access to qualifications. Insofar as luck egalitarianism (...) cannot support fair equality of opportunity, it cannot do justice to the claims of the disabled. Indeed, in the absence of fair equality of opportunity, disabled people are likely to be marginalized. (shrink)

Extending recent appropriations of Charles S. Peirce's work in political theory, we argue that the same epistemic norms that justify democracy offer a plausible basis for justifying multiculturalist policies aimed at protecting at-risk cultural groups. Because this epistemic argument is compatible with a full range of reasonable comprehensive doctrines, it fully accommodates the fact of reasonable pluralism, thereby skirting the Rawlsian objection to which the multiculturalisms of Charles Taylor and Will Kymlicka fall prey.

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting (...) for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases. (shrink)

In 1974, David Best rightly contrasted purposive sports (exemplified by most sports) with aesthetic sports; and recently I was careful to exempt the issues for aesthetic sports from my critique of the prospects for an all-embracing philosophy of officiating. While discretion plays a part in umpiring or refereeing in both kinds of sports, it is especially important for aesthetic sports (such as gymnastic vaulting, ice-skating or diving), where the manner of execution determines victory. Here, it is urged that the issue (...) of objectivity for judgements in aesthetic sports is not the most crucial aspect: we have reason to expect correct accounts from knowledgeable, sensitive and experienced judges or umpires. Impartiality remains a concern, of course, not least between the training for judges or umpires might tend to favour particular styles of performing key movements. So that many past rule-changes are explained as attempts to improve fairness, with competitors getting their ‘just deserts’. In doing so, they have implicitly contributed to what is then valued in the manner of execution in aesthetic sports. The term ‘aesthetic’ is generally applied in its positive valence, although one must recognize the negative valence also. But, for aesthetic sports, the rules provide guidance as to what will or will not be regarded positively in the context of competition. And rule-changes here will sometimes be best explained as attempting to modify what is rewarded in such sports, the manner of performance. Such changes might be expected to bear on the character of the sport (here exemplified through men’s ice-skating). (shrink)

In my paper I discuss the argument that the absence of the legal possibility to contract same-sex marriages is discriminatory. I argue that there is no analogy between the legal situation of same-sex couples and African-Americans, women or disabled persons in the nineteenth century. There are important natural differences between same-sex and different-sex couples that are good reasons for the legal disparities between them. The probability of having and raising children is one of them. Therefore, demanding that same-sex couples have (...) rights similar to those that married couples currently have in Poland and justifying that claim by alleged discrimination is neither correct nor fair. (shrink)

This paper argues that there is a tension between two central features of Dworkin’s partnership conception of democracy. The conception holds, on the one hand, that it is a necessary condition of the legitimacy of the decisions of a political majority that every member of the political community has a very robust right to publicly criticize those decisions. A plausible interpretation of this argument is that free political speech constitutes a normatively privileged vehicle for political minorities to become majorities, and (...) therefore in the absence of freedom of speech minorities could not be rightfully compelled to comply with majority decisions. On the other hand, the partnership conception holds that properly exercised constraints on majority rule do not incur any moral costs. The no-moral-costs thesis is argued for on the basis that nothing of significance is lost when individuals’ influence on political decisions is diminished. However, the legitimacy argument for free speech assumes the significance of individual political influence, which the no-moral-costs thesis denies. Hence the tension. (shrink)

From a pre-publication review by the late Austrian economist, Don Lavoie, of George Mason University: -/- "The book's radical re-interpretation of property and contract is, I think, among the most powerful critiques of mainstream economics ever developed. It undermines the neoclassical way of thinking about property by articulating a theory of inalienable rights, and constructs out of this perspective a "labor theory of property" which is as different from Marx's labor theory of value as it is from neoclassicism. It traces (...) roots of such ideas in some fascinating and largely forgotten strands of the history of economics. It draws attention to the question of "responsibility" which neoclassicism has utterly lost sight of. It is startlingly fresh in its overall approach, and unusually well written in its presentation. ... It constitutes a better case for its economic democracy viewpoint than anything else in the literature." . (shrink)

Notwithstanding an ongoing concern about the low representation of certain groups in higher education, there is reluctance on the part of politicians and policy makers to adopt positive discrimination as an appropriate means of widening participation. This article offers an account of the different objections to positive discrimination and, thereafter, clarifies and criticises the view that universities ought to select those applicants who are expected to be most successful as students. It distinguishes arguments from meritocracy, desert, respect, and productivity and (...) shows how these arguments are compatible with the use of positive discrimination in higher education. (shrink)

Can outcome equality (say, in welfare) ever be unjust? Despite the extensive inquiry into the nature of luck egalitarianism in recent years, this question is curiously under-explored. Leading luck egalitarians pay little attention to the issue of unjust equalities, and when they do, they appear not to speak in one voice. To facilitate the inquiry into the potential injustice of equalities, the paper introduces two rival interpretations of egalitarianism: the responsibility view, which may condemn equalities as unjust (when they reflect (...) unequal levels of personal responsibility); and, the non-responsibility view, which does not. It then teases out the implications of these two views, in the hope of establishing that the latter is at least as plausible as the former. The paper thus establishes that the egalitarian ideal can be plausibly formulated in a way that condemns only (certain) inequalities but never equalities, and that this formulation is both coherent and attractive. (shrink)

In the late 1990s, the Internet seemed a perfect medium for business: a facilitator of unlimited economical propositions to people without any regulatory limitations. Cases such as that of Yahoo! mark the beginning of the end of that illusion. They demonstrate that Internet service providers (ISPs) have to respect domestic state legislation in order to avoid legal risks. Yahoo! was wrong to ignore French national laws and the plea to remove Nazi memorabilia from its auction site. Its legal struggle proved (...) futile and may have harmed its business. This essay argues for the adoption of standards of corporate social responsibility (CSR). CSR considerations may trump some forms of antisocial, highly offensive expression. (shrink)

Robust technological enhancement of core cognitive capacities is now a realistic possibility. From the perspective of neutralism, the view that justifications for public policy should be neutral between reasonable conceptions of the good, only members of a subset of the ethical concerns serve as legitimate justifications for public policy regarding robust technological enhancement. This paper provides a framework for the legitimate use of ethical concerns in justifying public policy decisions regarding these enhancement technologies by evaluating the ethical concerns that arise (...) in the context of testing such technologies on nonhuman animals. Traditional issues in bioethics, as well as novel concerns such as the possibility of moral status enhancement, are evaluated from the perspective of neutralism. (shrink)

Oppression can be unjust from a luck egalitarian point of view even when it is the consequence of choices for which it is reasonable to hold persons responsible. This is for two reasons. First, people who have not been oppressed are unlikely to anticipate the ways in which their choices may lead them into oppressive conditions. Facts about systematic phenomena (like oppression) are often beyond the epistemic reach of persons who are not currently subject to such conditions, even when they (...) possess adequate information about the particular consequences of their choices. Second, people may be (much) less responsible for remaining in oppressive conditions, even if they are responsible for entering circumstances of oppression. Oppression that results from a person’s choice may cause or contribute to dramatic changes in that person, and these changes may be sufficient to undermine the person’s responsibility for the results of her earlier choice. (shrink)

No one who cares about equal opportunity can derive much comfort from the present occupational distribution of working women. In the various industrial societies of the West, women comprise between one quarter and one-half of the national labor force. However, they tend to clustered in employment sectors – especially clerical, sales, and service J occupations – which rank relatively low in remuneration, status, autonomy, and other perquisites. Meanwhile, the more prestigious and rewarding managerial and professional positions, as well as the (...) major categories of blue-collar labor, remain largely a male preserve. In the same societies the average income earned by full-time female workers is one-half to two- J thirds that of their male counterparts. Although this disparity owes much to i other factors, including lower pay for work similar or even identical to that r standardly done by men, much of it can be explained only by the concentration of working women in traditional female job ghettos. (shrink)

There are two principal philosophical conceptions of socialism, corresponding to two interpretations of the notion of a rational society. The first conception corresponds to an instrumental view of social rationality. Captured by the image of socialism as “one big workshop,” the instrumental view holds that social ownership of the means of production is rational because it promotes the optimal development of the productive forces. Social ownership is optimal because it eliminates the costs of coordination imposed by the conduct of economic (...) activities in formally independent enterprises, and, more generally, overcomes fetters on development that result from the control of resources by individuals whose particular interests imperfectly correspond to a general interest in productive advance. (shrink)

This chapter contains sections titled: Modern Legal Theory and the Impact of Realism Policy Science Legal Process References.

This is a slightly revised text of Jeffrie G. Murphy’s Presidential Address delivered to the American Philosophical Association, Pacific Division, in March 2006. In the essay the author reconsiders two positions he had previously defended—the liberal attack on legal moralism and robust versions of the retributive theory of punishment—and now finds these positions much more vulnerable to legitimate attack than he had previously realized. In the first part of the essay, he argues that the use of Mill’s liberal harm principle (...) against legal moralism cannot be cabined in such a way as to leave intact other positions that many liberals want to defend—in particular, certain fundamental constitutional rights and character retributivism in criminal sentencing. In the second part of the essay, he expresses serious doubts—some inspired by Nietzsche—about the versions of character retributivism that he had once enthusiastically defended and now describes himself as no more than a reluctant retributivist. (shrink)

In recent work, Cheryl Misak has developed a novel justification of deliberative democracy rooted in Peircean epistemology. In this article, the author expands Misak's arguments to show that not only does Peircean pragmatism provide a justification for deliberative democracy that is more compelling than the justifications offered by competing liberal and discursivist views, but also fixes a specific conception of deliberative politics that is perfectionist rather than neutralist. The article concludes with a discussion of whether the `epistemic perfectionism' implied by (...) the pragmatist argument could be endorsed by liberal democrats. Key Words: deliberative democracy • epistemology • liberalism • Cheryl Misak • Charles Peirce • perfectionism • pragmatism • truth. (shrink)

In this article, I argue that the state has a prima facie obligation to help its citizens satisfy their autonomous preferences. I argue that this obligation is grounded in the state's obligation to respect its citizens as persons, and that part of what is involved in respecting someone as a person is helping her satisfy her autonomous preferences. I argue that that which makes preferences autonomous is also that which makes them, and not their non-autonomous counterparts, worthy of respect. In (...) addition, I reject other views of what makes preferences worthy of respect, in particular Ronald Dworkin's view that only preferences for one's own enjoyment of some goods or opportunities deserve political consideration. Finally, I consider the state's obligation towards immoral autonomous preferences, and I argue that the state's prima facie obligation to promote the satisfaction of autonomous preferences is quite strong. (shrink)

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on (...) two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

I argue that there is nothing wrong with perfect voyeurism , covert watching or listening that is neither discovered nor publicized. After a brief discussion of privacy I present attempts from Stanley Benn, Daniel Nathan, and James Moor to show that the act is wrong. I argue that these authors fail to make their case. However, I maintain that, if detected or publicized, voyeurism can do grave harm and to that extent should be severely punished. I conclude with some thoughts (...) on the stubborn intuition that perfect voyeurism is wrong despite the absence of harm. (shrink)

What is required for one thing to be a reason for another? Must the reason, more precisely, be or involve a principle? In this essay I target the idea that justification via reasons of one's beliefs (e.g., epistemic or moral) requires that the 'justifying reasons' be or involve (substantive and significant) principles. I identify and explore some potential sources of a principles requirement, and conclude that none of them (i.e., the normative function of reasons, the abstract structure of reasons, the (...) universalizability constraint on [moral] reasons, and even the pragmatic considerations that attenuate 'real-world' reason-giving) mandate that reasons be principles. I then explore implications of this conclusion, and note especially the resultant and paradoxical permissibility of justifying reasons that manage to be lawlike (a sine qua non for justifying reasons) even while consisting of highly-detailed and situation-specific proposition sets, e.g., novel-length narratives. (shrink)

In this contribution, I defend a robust model of political idealism, making the case for such an approach to both the theory and practice of politics. On this view, not only in framing a political philosophy but also in putting forward policy proposals and institutional designs, we need not think about feasibility as an overriding, make-or-break criterion for evaluating the soundness of that theory or proposal, neither of which loses its point simply because it is deemed to be unlikely to (...) be implemented. Feasibility, in other terms, cannot be taken as the only standard, or even as the main standard, on which basis to assess the practical worth of a political strategy. (shrink)

To what extent are authors morally culpable for harms caused by their published work? Can authors be culpable even if their ideas are misused, perhaps because they failed to take precautions to prevent harmful misinterpretations? Might authors be culpable even if they do take precautions—if, for example, they publish ideas that others can be reasonably expected to put to harmful uses, precautions notwithstanding? Although complete answers to these questions depend upon controversial views about the right to free speech, this paper (...) argues that five notions from philosophy of law and legal practice—liability, burden of proof, legal causation, mens rea, and reasoning by precedent—can be adapted to provide an attractive moral framework for determining whether an author’s work causes harm, whether and how culpable the author is for causing such harm, steps authors may take to immunize themselves from culpability, and how to responsibly develop new rules for publishing ethics. (shrink)

According to Ronald Dworkin's mature views on jurisprudence, legal normativity depends on judges’ views about political morality. Plato's own mature views on this subject seem to take the contrary position as he claims that the law is expected to be authoritative in order to preserve a given state of affairs. Therefore, in Plato's view judges are not expected to interpret the law ubiquitously according to their own standards of political morality. In what follows, the discussion starts off by offering a (...) brief account of Dworkin's interpretivism and some of its shortcomings. We shall then move on to Plato's account of legal normativity, especially his views on the authority of law, law as preservation, and finally the politics of law in the light of the debate between conservatism and progressivism. (shrink)

My article is about legal interpretation, but not about the question: how to interpret the law. Rather its aim is to make us consider seriously the question: Why is interpretation central to legal practices? After all not all normative practices assign interpretation such a central role. In this regard the law contrasts with morality. The reason for the contrast has to do with the status of sources in the law. There are no “moral sources” while legal sources are central to (...) the law. Legal interpretation is primarily—I will suggest—the interpretation not of the law, but of its sources. To understand why interpretation is central to legal practices requires understanding the role of sources in the law: the reasons for having them, and hence also the ways in which they should be treated. I will show how reflections about these topics connect with some traditional jurisprudential puzzles, such as the relations between law and morality. Are there gaps in the law? Is the law or its interpretation objective or subjective? (shrink)

A growing body of literature in feminist philosophy exposes the way in which occupying a particular group identity inhibits an affected agent’s ability to engage in communicative exchange effectively. These accounts reveal a fault in standard liberal defences of free speech, showing how, if free speech is a goal worth pursuing, then it must involve both a concern about the legitimate limits of state interference and of the effect of social norms on an agent’s communicative capacities. Building on the emergence (...) of a ‘critical’ branch of neo-republicanism, this article argues that such speech-related injustices are best understood as a feature of structural domination that threatens the agency of those affected. Recalibrating our understanding of free speech along critical republican lines thus secures discursive agency in our communicative exchanges in a way that both ensures democratic legitimacy and realises equal status for all. (shrink)

Ronald Dworkin is one of the most frequently cited legal philosophers. His work, notably his attack on H. L. A. Hart's positivist theory of law, has received considerable attention, earning him praise as well as trenchant criticism. Instead of discussing the analytical validity of Dworkin's claims, though, we propose an alternative reading of his jurisprudential writings that emphasises their rhetorical nature. After delineating the rhetorical context of his work, we provide several illustrations of his use of rhetorical strategies and, with (...) the help of sentiment‐analysis techniques, emotional language. While resorting to classical rhetorical tactics, Dworkin's rhetoric, we argue, appealed to the emotional power of rights talk at a time when the notion of rights enjoyed greater resonance with his audience. (shrink)

Faced with a choice between escaping without consequences and submitting to a democratic decision, Socrates chooses the latter. So immense is Socrates’ duty to obey law, we are led to believe, that even the threat of death is insufficient to abrogate it. Crito proposes several arguments purporting to ground Socrates’ strong duty to obey, with the appeal to the Athenian system’s democratic credentials carrying most of the normative weight. A careful reading of the dialogue, in conjunction with the ‘Apology’, reveals, (...) however, a more complex picture. If Crito sets the conditions that render a regime legitimate, and therefore warranting of obedience, the Apology reveals a legal system’s shortcomings that justify disobedience. This article substantiates this position by delineating circumstances that can justify resistance. Contemporary forms of political resistance can also rely on similar conditions. Plato’s texts anticipate the current democratic turn of civil disobedience. (shrink)

This article presents two rejoinders to Frankfurt’s arguments against egalitarianism. In developing the first, I introduce a novel relational view of justice: relational sufficiency. This is the view that justice requires us to relate to one another as people with sufficient, but not necessarily equal, standing. I argue that if Frankfurt’s objections to distributive equality are sound, so are analogous objections to relational equality. However, in a range of cases involving comparative justice (punishment, equal pay, and family relations) we should (...) be relational egalitarians, not relational sufficientarians, and that we must therefore reject Frankfurt’s objections to distributive equality. The second rejoinder takes the form of a demonstration that all of Frankfurt’s objections to distributive equality (and relational equality) are unsound. In effect, the article rehabilitates the ideal of distributive equality in the face of Frankfurt’s objections. (shrink)

This chapter begins with an empirical analysis of attitudes towards the law, which, in turn, inspires a philosophical re-examination of the moral status of the rule of law. In Section 2, we empirically analyse relevant survey data from the US. Although the survey, and the completion of our study, preceded the recent anti-police brutality protests sparked by the killing of George Floyd, the relevance of our observations extends to this recent development and its likely reverberations. Consistently with prior studies, we (...) find that people’s ascriptions of legitimacy to the legal system are predicted strongly by their perceptions of the procedural justice and lawfulness of police and court officials’ action. Two factors emerge as significant predictors of people’s compliance with the law: (i) their belief that they have a (content-independent, moral) duty to obey the law (which is one element of legitimacy, as defined here); and (ii) their moral assessment of the content of specific legal requirements (‘perceived moral content of laws’). We also observe an interactive relationship between these two factors. At higher levels of perceived moral content of laws, felt duty to obey is a better predictor of compliance. And, similarly, perceived moral content of laws is a better predictor of compliance at higher levels of felt duty to obey. This suggests that the moral content incorporated in specific laws interacts with the normative force people ascribe to legal authorities by virtue of other qualities, specifically here procedural justice and lawfulness. In Section 3, the focus shifts to a philosophical analysis, whereby we identify a parallel (similarly interactive) modality in the way that form and content mutually affect the value of the rule of law. We advocate a distinctive alternative to two rival approaches in jurisprudential discourse, the first of which claims that Lon Fuller’s eight precepts of legality embody moral qualities not contingent on the law’s content, while the second denies any independent moral value in these eight precepts, viewing them as entirely subservient to the law’s substantive goals. In contrast, on the view put forward here, Fuller’s principles possess (inter alia) an expressive moral quality, but their expressive effect does not materialise in isolation from other, contextual factors. In particular, the extent to which it materialises is partly sensitive to the moral quality of the law’s content. (shrink)

Suppose the present generation leaves future ones with a world depleted of all the natural resources required for many valuable human pursuits. Has the present generation acted unjustly? According to contemporary theories of liberal egalitarian intragenerational and intergenerational justice, the answer, it appears, is no. The explanation for this verdict lies in the liberal commitment to remaining neutral between different ways of life: many value-laden environ- mental sites and species are not an all-purpose means to any reasonable human end and (...) so their existence is not directly relevant in an assessment of whether justice obtains. Against this view, I argue that a commitment to neutrality and its underlying justification – the idea that individuals should be equipped to live lives of their own design – in fact supports the opposite conclusion. If justice requires that citizens can pursue whatever way of life they do or might value, then it will also demand the continued existence of the natural resources necessary for those pursuits. (shrink)

Many oppose the use of profile evidence against defendants at trial, even when the statistical correlations are reliable and the jury is free from prejudice. The literature has struggled to justify this opposition. We argue that admitting profile evidence is objectionable because it violates what we call “equal protection”—that is, a right of innocent defendants not to be exposed to higher ex ante risks of mistaken conviction compared to other innocent defendants facing similar charges. We also show why admitting other (...) forms of evidence, such as eyewitness, trace, and motive evidence, does not violate equal protection. (shrink)

Where does the impetus towards ethical theory come from? What drives humans to make values explicit, consistent, and discursively justifiable? This paper situates the demand for ethical theory in human life by identifying the practical needs that give rise to it. Such a practical derivation puts the demand in its place: while finding a home for it in the public decision-making of modern societies, it also imposes limitations on the demand by presenting it as scalable and context-sensitive. This differentiates strong (...) forms of the demand calling for theory from weaker forms calling for less, and contexts where it has a place from contexts where it is out of place. In light of this, subjecting personal deliberation to the demand turns out to involve a trade-off. (shrink)

In this paper, I show how a novel treatment of speech acts can be combined with a well-known liberal argument for multiculturalism in a way that will justify claims about the preservation, protection, or accommodation of minority languages. The key to the paper is the claim that every language makes a distinctive range of speech acts possible, acts that cannot be realized by means of any other language. As a result, when a language disappears, so does a class of speech (...) acts. If we accept that our social identities are in large part constituted by the decisions we make about how to speak, language loss, then, will amount to a substantial infringement on our autonomy in a particularly important domain. (shrink)

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding (...) fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

Just institutions have claims on us. There are two reasons for thinking that such claims are warranted. First, one may believe that we are under a natural duty of justice to support and further just institutions. If one believes that it matters whether institutions are just, one also has a reason, almost as a matter of consistency, to support and further just institutions. Second, one may believe that by enjoying the benefits brought about by cooperation through just institutions, one incurs (...) an obligation to support these institutions. Those who accept and enjoy the benefits brought about by cooperation through a just scheme are under an obligation of fairness to reciprocate. But what happens to these reasons to support and comply with an institution if the scheme of cooperation is less than fully just? There is hardly a real-world institution, policy, or scheme of social cooperation that would qualify as fully just. However, questions about obligations of fairness and duties of justice under conditions of injustice have hitherto suffered relative neglect. I shall outline an overall framework for thinking about these questions by asking what the victims of injustice owe to moderately unjust institutions. (shrink)

Ovaj rad propituje status nasilja unutar građanskog neposluha. Naime, pitanje je može li građanski neposluh biti nasilan, a istovremeno opravdan? Ako nadiđemo pojam nasilja kao isključivo fizičkog čina, onda teorija prema kojoj je građanski neposluh opravdan, a nasilje nije, postaje teško obranjiva. U radu zastupam stajalište prema kojem je prisila ponekad opravdana jer prima facie prava nisu apsolutna prava već stoje za prava koja mogu biti nadjačana snažnijom, moralnom obavezom. No to stajalište otvara potencijalno problematično područje morala i neminovno se (...) postavlja pitanje: što s građanskim neposluhom grupa koje se pozivaju na vrijednosti poput slobode i jednakosti, no čiji se zahtjevi temelje na kršenju prava određenih skupina u društvu? (shrink)

Suppose one hundred prisoners are in a yard under the supervision of a guard, and at some point, ninety-nine of them collectively kill the guard. If, after the fact, a prisoner is picked at random and tried, the probability of his guilt is 99%. But despite the high probability, the statistical chances, by themselves, seem insufficient to justify a conviction. The question is why. Two arguments are offered. The first, decision-theoretic argument shows that a conviction solely based on the statistics (...) in the prisoner scenario is unacceptable so long as the goal of expected utility maximization is combined with fairness constraints. The second, risk-based argument shows that a conviction solely based on the statistics in the prisoner scenario lets the risk of mistaken conviction surge potentially too high. The same, by contrast, cannot be said of convictions solely based on DNA evidence or eyewitness testimony. A noteworthy feature of the two arguments in the paper is that they are not confined to criminal trials and can in fact be extended to civil trials. (shrink)

Many contributors to debates about professional conscience assume a basic, pre-professional right of conscientious refusal and proceed to address how to ‘balance’ this right against other goods. Here I argue that opponents of a right of conscientious refusal concede too much in assuming such a right, overlooking that the professions in which conscientious refusal is invoked nearly always operate as public cartels, enjoying various economic benefits, including protection from competition, made possible by governments exercising powers of coercion, regulation, and taxation. (...) To acknowledge a right of conscientious refusal is to license professionals to disrespect the profession’s clients, in opposition to liberal ideals of neutrality, and to engage in moral paternalism toward them; to permit them to violate duties of reciprocity they incur by virtue of being members of public cartels; and to compel those clients to provide material support for conceptions of the good they themselves reject. However, so long... (shrink)

The paper is focused on the criticisms that theorists of political constitutionalism raise against legal constitutionalism, especially with regard to the idea of representation and political sovereignty. At the same time, the intention is to reconstruct the debate between legal and political constitutionalism in contemporary liberalism, starting from the so-called counter-majoritarian difficulty. This debate concerns two different approaches: the political one rejects the idea of judicial review by the Supreme Court because it may establish a possible rule of the judges (...) (Michelman; Dworkin). It defends the role of Parliament in constitutional matters, in contrast with the role of the Supreme Court, inasmuch as – according to them – it is not open to political participation. Parliament is considered the only place in which we can exercise our constitutional power and in which our rights could be adequately protected (Bellamy; Waldron; Tushnet; Goldoni). On the other hand, legal constitutionalism upholds the idea of judicial review, defending the role of the Supreme Court as “exemplar of public reason” (Rawls 1993). This article tries to answer to three fundamental questions about constitutional democracy under the banner of political liberalism: 1. What do we mean by counter-majoritarian difficulty? 2. What is the answer that legal and political model of constitutionalism give to this question? 3. What is the role of constitutional courts in democratic regimes and what is their authority within the State? (shrink)

A frequent caveat in online dating profiles – “No fats, femmes, or Asians” – caused an LGBT activist to complain about the bias against Asians in the American gay community, which he called “racial looksism”. In response, he was asked that, if he himself would not date a fat person, why he should find others not dating Asians so upsetting. This response embodies a popular attitude that personal preferences or tastes are simply personal matters – they are not subject to (...) moral evaluation. In this paper, I argue, against this popular attitude, that a personal preference like racial looksism is indeed wrong. A preference like racial looksism is wrong because it is an overgeneralization that disrespects individuality by treating people as exchangeable tokens of one type, and such disrespect denies its objects appreciation that their dignity entitles them to. As it turns out, there is on my account a relevant moral difference between racial looksism and simple looksism. (shrink)

In its simplest form, the principle of fairness tells us the following. If a number of people are producing a public good that we benefit from, it is not morally acceptable to free ride on their backs, enjoying the benefits without paying the costs. We owe them our fair share of the costs of the production of that good. The principle of fairness, defended by Rawls in A Theory of Justice and widely discussed subsequently, is sometimes invoked in various areas (...) of applied ethics, such as environmental ethics, social ethics, etc.As it stands, the principle of fairness offers an account of a particular type of moral obligation that obtains if certain conditions are satisfied. For example, the good produced must be a particular type of good, the scheme in which it is produced must itself be fair, and so on. This account inspired a wave of discussions, which set the tone for the debate on the principle of fairness, about two decades ago. (shrink)

Many historical and recent forms of protest usually referred to as civil disobedience do not fit the standard philosophical definition of “civil disobedience”. The moral and political importance of this point is explained in section 1, and two theoretical lessons are drawn: one, we should broaden the concept of civil disobedience, and two, we should start thinking about uncivil disobedience. Section 2 is devoted to the main objections against, and theorists' defenses of, civil disobedience.