Turkish Bu makalede bireylerin eylemlerine müdahale etmenin tek haklı gerekçesinin başkalarına zarar gelmesini önlemek olduğunu ifade eden ‘‘zarar ilkesine (Zİ)’’ getirilen üç eleştiriyi tartıştım. Öncelikle ilkeyi anlamlı kılabilecek bir zarar tarifinin bulunmadığı eleştirisini ele alarak bu eleştirinin, ilkenin ancak problemsiz bir zarar tanımı ile birlikte makul kabul edilebileceği varsayımına dayandığını tespit ettim. Zarar kavramına ilişkin var olan bilgi dağarcığımızı görmezden gelmesi ve zarara başvuran ilkeler haricindeki diğer birçok ilkeyi de kapsayan genel bir şüpheciliğin önünü açması nedeniyle ilgili varsayımı reddetmemiz gerektiğini (...) savundum. İkinci olarak, zarar vermenin yanlışlığının halihazırda yaygın olarak kabul ediliyor olmasından ötürü Zİ’nin bize yeni bir şey söylemediği, zararın türü/miktarı gibi güncel tartışmaların yoğunlaştığı noktalarda suskun kaldığı ve dolayısıyla artık işlevsiz olduğu eleştirisini değerlendirdim. Buna karşın hangi zarar tarifinin benimsendiğinden bağımsız olarak Zİ’nin, zararın varlığı kanıtlanmadıkça bireylerin eylemlerinde serbest bırakılmaları gerektiğini vurgulayan bir özgürlük karinesini temsil etme ve bazı eylemlerin zarar içermese dahi yasaklanabileceğini düşünen hukuki ahlakçılara yasak taleplerini gerekçelendirme yükümlülüklerini hatırlatma şeklinde iki önemli işleve halen sahip olduğunu iddia ettim. Son olarak Zİ'nin potansiyel kötüye kullanımlarına dair endişelere değindim. Bu endişelerin giderilmesi için yapılması gerekenin, zarar içeren eylemleri belirlemeye çalışmak değil, her eylemin bir miktar zarar içerme olasılığına sahip olduğunu kabul ederek hangi tür zararların hukuken düzenlenmesi gerektiği özelinde makul bir seçenek ortaya koymak olduğunu iddia ettim. Zİ’nin suiistimallerinin genellikle zarar kavramının geniş yorumlanmasının ürünü olduğunu düşünerek, cebir ve hile eylemlerinin neden olduğu birinci derece zararları esas alan, hukuki öngörülebilirliği artıracak bir hukuki çerçeve benimsemeyi tercih ettim. Kuşkusuz bu tercih yasaklanması gereken bazı zararlı eylemlere karşı hukuki koruma sağlayamama riskini içermektedir; ancak bu, özgürlüğü korumayı taahhüt eden genel bir ilke ortaya koymak için ödenmesi gereken bir bedeldir. Buradan hareketle, ele aldığım üç eleştiriden hiçbirinin Zİ’nin reddedilmesini gerektirmediği sonucuna vardım. English In this article, I discuss three criticisms of ‘‘the harm principle (HP)’’, which states that the only justification for interfering with individual’s actions is to prevent harm to others. First, I address the criticism that there is no definition of harm that can make the principle reasonable, and I find that this criticism is based on the assumption that the principle can only be considered reasonable with an unproblematic definition of harm. I argue that we should reject this assumption because it ignores our existing knowledge of the concept of harm and opens the way for a general skepticism that extends to many principles other than those addressing harm. Secondly, I consider the criticism that, since the wrongfulness of causing harm is already widely accepted, the principle tells us nothing new, is silent on the points where current debates intensify, such as the type/amount of harm, and is therefore no longer functional. On the other hand, I argue that, regardless of the definition of harm adopted, the HP still serves two important functions: Representing a presumption of liberty that emphasizes that individuals should be free to act unless the existence of harm is proven, and reminding legal moralists who believe that some acts can be prohibited even if they do not involve harm of their obligation to justify such prohibitions. Finally, I address concerns about potential abuses of the HP. I argue that what is needed to address these concerns is not to try to identify acts that involve harm, but to recognize that every act has the potential to involve some level of harm, and to make a reasonable choice as to which types of harm should be regulated by law. Considering that abuse of HP often arises from a broad interpretation of the concept of harm, I prefer to adopt a legal framework that would increase legal predictability, based on the first-degree harms caused by acts of force and fraud. Undoubtedly, this choice entails the risk of failing to provide legal protection against certain harmful acts that should be prohibited, but this is a price that must be paid for a general principle that is committed to protecting liberty. Thus, I conclude that none of the three criticisms I discussed require the rejection of HP. (shrink)

This paper gives an overview of Pierre Bayle’s theory of toleration and derives a normative principle of toleration from it that is meant to compete with other normative principles of toleration such as the Harm principle.

Contemporary philosophical debates surrounding toleration have revolved around three issues: What is toleration? Should we tolerate and, if so, why? What should be tolerated? These questions are of central importance to social and political thought.

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might (...) stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in. (shrink)

When and why do socially constructed norms—including the laws of the land, norms of etiquette, and informal customs—generate moral obligations? I argue that the answer lies in the duty to respect others, specifically to give them what I call “agency respect.” This is the kind of respect that people are owed in light of how they exercise their agency. My central thesis is this: To the extent that (i) existing norms are underpinned by people’s commitments as agents and (ii) they (...) do not conflict with morality, they place moral demands on us on agency-respect grounds. This view of the moral force of socially constructed norms, I suggest, is superior to views that deny the moral force of such norms, and it elegantly explains certain instances of wrongdoing that would otherwise remain unaccounted for. (shrink)

This paper analyzes the inconsistency of Mill’s utilitarianism in moral philosophy and his liberalism in political philosophy, the efforts of Ten and Dworkin for their consistency and the distinction that Leob and Driver use for reconciling them‌. The distinction is between decision-procedure and criterion of evaluation or the metaphysics and epistemology of right‌. In the next step, it shows a new inconsistency between Mill’s moral and political philosophy‌. It seems that Mill cannot accept the non-consequentialist ‘doing/allowing harm’ distinction in moral (...) philosophy because he himself is a consequentialist‌. The rejection of this distinction makes it inconsistent with his harm principle and his main distinction in political philosophy: the distinction between ‘self-regarding’ and ‘other-regarding’ actions‌. These criticisms show the difficulty of reconciling Mill’s utilitarianism with his liberalism and his moral philosophy with his political philosophy in the framework of the classic triple in normative ethics‌. Therefore, in order to solve this problem, I combined the classic triple with the modern triple in normative ethics. In this way, we can regard Mill as a consistent utilitarian who regards liberty as the essential condition for personal development and maximization of the good, and tries to raise a moderate and sophisticated version of utilitarianism by decreasing its pervasiveness‌‌. (shrink)

What is the moral law and what role does it and should it play in political theory and political practice? In this entry we will try to answer these important questions by first examining what the moral law is, before investigating the different ways in which the relationship between morality and politics can be conceptualized.

Gerald Dworkin’s overlooked defense of legal moralism attempts to undermine the traditional liberal case for a principled distinction between behavior that is immoral and criminal and behavior that is immoral but not criminal. According to Dworkin, his argument for legal moralism “depends upon a plausible idea of what making moral judgments involves.” The idea Dworkin has in mind here is a metaethical principle that many have connected to morality/reasons internalism. I agree with Dworkin that this is a plausible principle, but (...) I argue that some of the best reasons for accepting it actually work against his enforcement thesis. I propose a principled distinction between the immoral-and-criminal and the immoral-but-not-criminal, and argue that a principle at least very much like it must be correct if the metaethical principle Dworkin avows is correct. (shrink)

This article is about ‘role responsibility’ as understood by H. L. A. Hart in his taxonomy of responsibility concepts in his book, Punishment and Responsibility. More particularly, it focuses on what I call ‘public, institutional role responsibility’. The main arguments are that such role responsibility is based on authority and power rather than physical and mental capacity; and the foundation of role responsibility in authority has significant implications for what Hart referred to as ‘liability–responsibility’, which I unpack in terms of (...) ‘attribution’, ‘accountability’ and ‘liability’. The article addresses possible objections to the authority-based analysis of role responsibility based on the concept of ‘moral’ responsibility, and on understandings of what types of question are ‘philosophical.’. (shrink)

After its review of the Human Fertilization and Embryology Act of 1990, the Department of Health concluded that the British Parliament ought to outlaw sex selection for any but the most serious of medical reasons. This paper reviews the most frequently expressed objections to social sex selection and concludes that there is simply no moral justification for prohibiting parents from using sex selection technology to balance their families.

This thesis in an invistigation into the concept of "harm" and its moral relevance. A common view is that an analysis of harm should include a counterfactual condition: an act harms a person iff it makes that person worse off. A common objection to the moral relevance of harm, thus understood, is the non-identity problem. -/- This thesis criticises the counterfactual condition, argues for an alternative analysis and that harm plays two important normative roles. -/- The main ground for rejecting (...) the counterfactual condition is that it has unacceptable consequences in cases of overdetermination and pre-emption. Several modifications to the condition are considered but all fail to solve this problem. -/- According to the alternative analysis to do harm is to perform an act which is responsible for the obtaining of a state of affairs which makes a person’s life go worse. It is argued that should be understood in terms of counterfactual dependence. This claim is defended against counterexamples based on redundant causation. An analysis of is also provided using the notion of a well-being function. It is argued that by introducing this notion it is possible to analyse contributive value without making use of counterfactual comparisons and to solve the non-identity problem. -/- Regarding the normative importance of harm, a popular intuition is that there is an asymmetry in our obligations to future people: that a person would have a life worth living were she to exist is not a reason in favour of creating that person while that a person would have a life not worth living is a reason against creating that person. It is argued that the asymmetry can be classified as a moral option grounded in autonomy. Central to this defence is the suggestion that harm is relevant to understanding autonomy. Autonomy involves partly the freedom to pursue one’s own aims as long as one does no harm. (shrink)

This chapter concerns the normativity of the concepts of paternalism and libertarian paternalism. The first concept is central in evaluating public health policy, but its meaning is controversial. The second concept is equally controversial and has received much attention recently. It may or may not shape the future evaluation of public health policy. In order to facilitate honest and fruitful debate, I consider three approaches to these concepts, in terms of their normativity. Concepts, I claim, may be considered nonnormative, normatively (...) charged, or normative in that they involve more complex relationships between values or duties. While the last approach is often best, other approaches may be appropriate depending on the context and purpose of discussion. The chapter’s conceptual investigation is illustrated by application to two public health policies: a tax on the consumption of fat and the encouragement of health-promoting food displays in restaurants and supermarkets. (shrink)

Mill argues that, apart from the principle of utility, his utilitarianism is incompatible with absolutes. Yet in On Liberty he introduces an exceptionless anti-paternalism principle—his liberty principle. In this paper I address ‘the absolutism problem,’ that is, whether Mill's utilitarianism can accommodate an exceptionless principle. Mill's absolute claim is not a mere bit of rhetoric. But the four main solutions to the absolutism problem are also not supported by the relevant texts. I defend a fifth solution—the competence view—that turns on (...) his attention to decision-making structures and, in particular, on the role of expertise considerations in his account. (shrink)

One of the features of John Locke’s moral philosophy is the idea that morality is based on our beliefs concerning the future good. In An Essay Concerning Human Understanding II, xxi, §70, Locke argues that we have to decide between the probability of afterlife and our present temptations. In itself, this kind of decision model is not rare in Early Modern philosophy. Blaise Pascal’s Wager is a famous example of a similar idea of balancing between available options which Marcelo Dascal (...) has discussed in his important 2005 article “The Balance of Reason”. -/- Leibniz, however, was not always satisfied with this kind of simple balancing. In his commentary to Locke’s Essay, Nouveaux essais sur l’entendement humain, II, xxi, §66, he presented an alternative model which is based on an idea of plural, mutually conflicting inclinations. This kind of model, called as vectorial theory of rational decision by Simo Knuuttila, fits well with Leibniz’s theory of the soul where volitions are formed as a kind of compromise between different inclinations to different goods. -/- I will present these two models and show how they illustrate the practical rationality of Locke and Leibniz and how their moral philosophies differ, although being similar in certain respects. The topics include Leibniz’s criticism of Lockean hedonism and the discussion of akratic behaviour in II, xxi of Essay and Nouveaux essais. (shrink)

Legal restrictions of the right to self-determination increasingly pretend to be compatible with the liberal concept of autonomy: they act upon a ‘soft’ or autonomy-orientated paternalistic rationale. Conventional liberal critique of paternalism turns out to be insensitive to the intricate normative problems following from ‘soft’ or ‘libertarian’ paternalism. In fact, these autonomy-oriented forms of paternalism could actually be even more problematic and may infringe liberty rights even more intensely than hard paternalistic regulation. This paper contributes to the systematic differentiation of (...) soft and hard paternalism by discussing the (legal) concept of autonomy and elaborates the moral and legal limits of autonomy-orientated paternalism. (shrink)

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission . When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. (...) Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons. (shrink)

There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for (...) manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization. (shrink)

The aim of this paper is to critically discuss the plausibility of legal moralism with an emphasis on some central and recent versions. First, this paper puts forward and defends the thesis that recently developed varieties of legal moralism promoted by Robert P. George, John Kekes and Michael Moore are more plausible than Lord Devlin's traditional account. The main argument for this thesis is that in its more modern versions legal moralism is immune to some of the forceful challenges made (...) to Devlin by Hart, Dworkin and Feinberg among others. Second, however, the paper challenges the new generation of legal moralists and suggests some areas for further development. Although Devlin's position has been scrutinized thoroughly in the literature on the philosophy of law, there has, to my knowledge, been no comparable, systematic critique of these different proponents of legal moralism. (shrink)

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range (...) of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in and conduct that might well be criminalized. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights. (shrink)

Some philosophers think that the challenge of justifying punishment can be met by a theory that emphasizes the expressive character of punishment. A particular type of theories of this sort - call it Expressive Retributivism [ER] - combines retributivist and expressivist considerations. These theories are retributivist since they justify punishment as an intrinsically appropriate response to wrongdoing, as something wrongdoers deserve, but the expressivist element in these theories seeks to correct for the traditional obscurity of retributivism. Retributivists often rely on (...) appeals to controversial intuitions involving obscure concepts. While retributive intuitions can be compelling, some worry that the justificatory challenge cannot be met merely by appealing to them. ER tries to enhance the clarity and justificatory power of these intuitions and the concepts they invoke by appealing to an expressive conception of punishment. I argue that these theories fail to justify punishment and that there is reason to think that they cannot, in principle, justify punishment. (shrink)

According to the Harm Principle, roughly, the state may coerce a person only if it can thereby prevent harm to others. Clearly, this principle depends crucially on what we understand by harm. Thus, if any sort of negative effect on a person may count as a harm, the Harm Principle will fail to sufficiently protect individual liberty. Therefore, a more subtle concept of harm is needed. I consider various possible conceptions and argue that none gives rise to a plausible version (...) of the Harm Principle. Whether we focus on welfare, quantities of welfare or qualities of welfare, we do not arrive at a plausible version of this principle. Instead, the concept of harm may be moralized. I consider various ways this may be done as well as possible rationales for the resulting versions of the Harm Principle. Again, no plausible version of the principle turns up. I also consider the prospect of including the Harm Principle in a decision-procedure rather than in a criterion of rightness. Finally, in light of my negative appraisal, I briefly discuss why this principle has seemed so appealing to liberals. (shrink)

Robots are becoming more visible parts of our life, a situation which prompts questions about their place in our society. One group of issues that is widely discussed is connected with robots’ moral and legal status as well as their potential rights. The question of granting robots rights is polarizing. Some positions accept the possibility of granting them human rights whereas others reject the notion that robots can be considered potential rights holders. In this paper, I claim that robots will (...) never have all human rights, even if we accept that they are morally equal to humans. I focus on the role of embodiment in the content of the law. I claim that even relatively small differences in the ontologies of entities could lead to the need to create new sets of rights. I use the example of Neanderthals to illustrate that entities similar to us might have required different legal statuses. Then, I discuss the potential legal status of human-like robots. (shrink)

This thesis is an attempt to constructively interpret and critically evaluate the liberal doctrine that we may not limit a person’s liberty for her own good, and to discuss its implications and alternatives in some concrete areas of public health policy. The thesis starts theoretical and goes ever more practical. The first paper is devoted to positive interpretation of anti-paternalism with special focus on the reason component – personal good. A novel generic definition of paternalism is proposed, intended to capture, (...) in a generous fashion, the object of traditional liberal resistance to paternalism – the invocation of personal good reasons for limiting of or interfering with a person’s liberty. In the second paper, the normative aspect of this resistance is given a somewhat technical interpretation in terms of invalidation of reasons – the blocking of reasons from influencing the moral status of actions according to their strength. It is then argued that normative anti-paternalism so understood is unreasonable, on three grounds: 1) Since the doctrine only applies to sufficiently voluntary action, voluntariness determines validity of reasons, which is unwarranted and leads to wrong answers to moral questions. 2) Since voluntariness comes in degrees, a threshold must be set where personal good reasons are invalidated, leading to peculiar jumps in the justifiability of actions. 3) Anti-paternalism imposes an untenable and unhelpful distinction between the value of respecting choices that are sufficiently voluntary and choices that are not. The third paper adds to this critique the fourth argument that none of the action types typically proposed to specify the action component of paternalism is such that performing an action of that type out of benevolence is essentially morally problematic. The fourth paper ignores the critique in the second and third papers and proposes, in an anti-paternalistic spirit, a series of rules for the justification of option-restricting policies aimed at groups where some members consent to the policy and some do not. Such policies present the liberal with a dilemma where the value of not restricting people’s options without their consent conflicts with the value of allowing people to shape their lives according to their own wishes. The fifth paper applies the understanding of anti-paternalism developed in the earlier papers to product safety regulation, as an example of a public health policy area. The sixth paper explores in more detail a specific public health policy, namely that of mandatory alcohol interlocks in all cars, proposed by the former Swedish government and supported by the Swedish National Road Administration. The policy is evaluated for cost-effectiveness, for possible diffusion of individual responsibility, and for paternalistic treatment of drivers. The seventh paper argues for a liberal policy in the area of dissemination of information about uncertain threats to public health. The argument against paternalism is based on common sense consequentialist considerations, avoiding any appeal to the normative anti-paternalism rejected earlier in the thesis. (shrink)

Whatever else liberalism involves, it involves the idea that it is objectionable, and often wrong, for the state, or anyone else, to intervene, in certain ways, in certain choices. This article aims to evaluate different possible sources of support for this core liberal idea. The result is a pluralistic view. It defends, but also stresses the limits of, some familiar elements: that some illiberal interventions impair valuable activities and that some violate rights against certain kinds of invasion. More speculatively, it (...) points to two further sources of support for liberalism, each of which represents a certain kind of social standing: a self-sovereignty compromised simply by being subject to certain kinds of commands and a relational equality compromised by the condemnation of choices with which one’s group is identified. (shrink)

The recent outbreak of Ebola in West Africa has killed thousands of people, including healthcare workers. African responses have been varied and largely ineffective. The WHO and the international community’s belated responses have yet to quell the epidemic. The crisis is characteristic of a failure to properly comply with the International Health Regulations 2005. More generally, it stems from a failure of international health justice as articulated by a range of legal institutions and instruments, and it should prompt us to (...) question the state and direction of approaches to the governance of global public health. This paper queries what might be done to lift global public health as a policy arena to the place of prominence that it deserves. It argues that there are at least two critical reasons for the past, present and easily anticipated future failings of the global public health regime. After exploring those, it then articulates a new way forward, identifying three courses of action that might be adopted in realising better health outcomes and global health justice, namely value, institutional and legal reform. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

In their excellent monograph, Crimes, Harms and Wrongs, Andrew Simester and Andreas von Hirsch argue for an account of legitimate criminalisation based on wrongfulness, the Harm Principle and the Offence Principle, while they reject an independent anti-paternalism principle. To put it at its simplest my aim in the present paper is to examine the relationship between ‘the harms’ and ‘the wrongs’ of the authors’ title. I begin by comparing the authors’ version of the Harm and Offence Principle with some other (...) influential accounts. After examining the role wrongfulness plays in their work, I ask what there is left for their Harm and Offence Principles to do. In the light of the understanding and foundations of the Harm and Offence Principles proposed by the authors, I suggest that the answer is little or nothing. The wrongfulness constraint the authors place on their Offence Principle comes close to swallowing it up entirely. Furthermore the part of their Offence Principle that is not thus swallowed by wrongfulness leaves the account with a commitment that is probably best dropped. As far as their Harm Principle is concerned I suggest that the authors’ account of ‘harm’ is so broad that it lacks the resources to distinguish harm-based reasons from wrongfulness- or immorality-based reasons in any principled way. Among other things, I ask in this context, first, whether one can be harmed as one’s character deteriorates and, secondly, whether one is harmed by virtue of the serious wrong one does to another. What really drives the authors’ account of legitimate criminalisation, I believe, is wrongfulness together with an important, amorphous set of potential defeating conditions. They themselves accept such a picture so far as paternalism is concerned. I conclude that their account, which I think has considerable force, would lose little of any significance were their Harm and Offence Principles simply excised. More generally I suspect that a strong role for wrongfulness in an account of legitimate criminalisation is likely to put into serious question the plausibility of an independent principled role for harm and offence. (shrink)

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes (...) many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law (...) to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

In this Introduction, I situate the underlying project “Autonomy and Mental Disorder” with reference to current debates on autonomy in moral and political philosophy, and the philosophy of action. I then offer an overview of the individual contributions. More specifically, I begin by identifying three points of convergence in the debates at issue, stating that autonomy is: 1) a fundamentally liberal concept; 2) an agency concept and; 3) incompatible with (severe) mental disorder. Next, I explore, in the context of decisional (...) capacity assessments, the difficulties to reconcile 1) and 2) with 3) which they at the same time seem to imply. Having clarified the centrality of a cogent notion of mental disorder for addressing these difficulties, I comment on three promising lines of inquiry about the nature and scope of autonomy that emerge from the following chapters. (shrink)

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)

Journal Name: SATS Issue: Ahead of print.

In this paper I argue that Joel Feinberg was wrong to suppose that liberals must oppose any criminalization of “harmless immorality”. The problem with a theory that permits criminalization only on the basis of his harm and offense principles is that it is underinclusive, ruling out laws that most liberals believe are justified. One objection (Arthur Ripstein’s) is that Feinberg’s theory is unable to account for the criminalization of harmless personal grievances. Another (Larry Alexander’s and Robert George’s) is that it (...) cannot account for public decency laws. I shall reject both of these underinclusiveness objections in favor of one that focuses on the “free floating evil” of corpse desecration. Liberals need “pure” legal moralism (PLM) to explain their support for a criminal ban on mistreatment of the dead. I also argue that while deterrence is plausibly regarded as the primary rationale for criminalizing and punishing wrongs like murder or rape, it is not plausibly regarded as any part of the rationale for criminalizing free floating evils. The point of punishing corpse desecrators has to be either retribution or the promotion of virtue/discouraging of vice. Finally, I consider Feinberg’s reason for rejecting all PLM, namely, that competent adults have a right to personal sovereignty or autonomy, and the state’s duty to respect that right trumps the desirability of punishing or reducing the vice associated with harmless immorality. I argue that Feinberg’s argument here fails because it exaggerates the right’s strength and scope. (shrink)

How are general relations of law and morality typically conceived in an environment of Anglo-saxon common law? This paper considers some classical common law methods and traditions as these have confronted and been overlaid with modern ideas of legal positivism. While classical common law treated a community and its morality as the cultural foundation of law, legal positivism's analytical separation of law and morals, allied with liberal approaches to legal regulation, have made the relationship of legal and moral principles more (...) complex and contested. Using ideas from Durkheim's and Weber's sociology, I argue that the traditional common law emphasis on an inductive, empirical treatment of moral practices has continuing merit, but in contemporary conditions the vague idea of community embedded in classical common law thought must be replaced with a much more precise conceptualisation of coexisting communities, whose moral bonds are diverse and require a corresponding diversity of forms of legal recognition or protection. (shrink)

Una de las cuestiones a que se enfrenta la teoría de la argumentación jurídica, y a la que se dedica este trabajo, es poner de relieve el papel que las valoraciones tienen en el proceso de aplicación del derecho. Las razones valorativas juegan un papel más importante que el que la concepción positivista del derecho suele advertir. En muchos casos las decisiones judiciales no pueden justificarse en el propio derecho, sino en valoraciones ajenas al mismo. Esto no debe significar que, (...) en este ámbito, aquellas sean necesariamente arbitrarias, pero sí discrecionales, lo que conlleva que deben establecerse algunos criterios de racionalidad; criterios que no son ya jurídicos, sino de carácter moral o ético. (shrink)

Several liberal philosophers and penal theorists have argued that the state has a reason to prohibit acts that harm individuals. But what is harm? According to one specification of harm, a person P is harmed by an act (or an event) a iff, as a result of a, P is made worse off in terms of well-being. One central question here involves the baseline against which we assess whether someone is ‘worse off’. In other words, when a person is harmed (...) he is worse off, certainly—but what is worse off a variation from? A central part of the paper critically discusses different answers to this question based on versions of what we can call: the temporal baseline, the baseline from mankind and the counterfactual baseline. Essentially, it will be argued that the counterfactual baseline leaves us with a better understanding of harming than the other baselines discussed. The final part of the paper will describe some of the implications of our investigation for the application and evaluation of the view that harm matters in the justification of which type of acts should be criminalized by the state. The overall conclusion of the paper is that adherents of a view like the harm principle face a dilemma. Either they can accept the counterfactual baseline but then, they can do without the harm principle. Or they can reject the counterfactual baseline—but then they will have to formulate an alternative baseline which, as will be shown in the paper, is no easy task. (shrink)

Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and (...) the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)

An objection frequently brought against critical or satirical expressions, especially when these target religions, is that they are ‘offensive’. In this article, I indicate why the existence of diverse and conflicting beliefs gives people an incentive to formulate their complaints in the language of offence. But I also cast doubt on whether people, in saying they are offended really mean to present that as the foundation of their complaint and, if they do, whether their complaint should weigh with us. These (...) doubts do not apply to everything we might find offensive; in particular, they do not apply to simple cases of ‘sensory offence’; but they do apply to ‘belief-based offence’. Relying on offence also implies, inequitably, that different faiths should be differently protected depending on their susceptibility to offence; and the faithful themselves should worry about the flimsiness of claims based on ‘bare knowledge’ offence. I propose a principle of respect for beliefs as a differently grounded and more plausible reason for curbing our treatment of others’ beliefs. However, that principle has a limited compass and is hemmed in by the claims of free expression. It is also less suited to dictating the content of law than to influencing our conduct within the law. (shrink)

La democracia, como forma de gobierno, admite su escisión en al menos dos momentos distintos: la democracia de los antiguos y la de los modernos. Un rasgo distintivo de esta última variante –aquella identificada como democracia representativa– es la existencia de representantes elegidos por votación popular. Dado esto, se ha sostenido generalmente que el voto y la regla de mayoría son mecanismos “típicamente democráticos”. Sin embargo, ni voto ni regla de mayoría son exclusivos de los sistemas democráticos, de modo que (...) definir la forma que éstos han de tener cuando operan en un sistema democrático constituye uno de los problemas principales de la teoría de la democracia y de ésta en relación con los de- rechos fundamentales. Este trabajo aborda los problemas invocados por estos planteamientos a partir, sobre todo, de la obra de Norberto Bobbio. (shrink)

In recent years, the National Crime Records Bureau recommendation is that the growth rate of crime against women has skyrocketed in India, even higher than the population growth rate. According to lawyer, Kamlesh Vaswani, the commercial exploitation of coital activity paramount in pornography is the result of crimes against women, and fills perverse traits in the roots of society. Following that, he filed a petition (2013) in the Honourable Supreme Court to blanket ban pornography with the aim of diluting the (...) subordination of women and the crimes against women in society. Taking this into consideration, I argue that the Vaswani petition draws back the issue of twentieth century Western political and philosophical debate on pornography which triggers one of the moot problems of moral legislation—whether the state should be neutral or not towards individuals’ preferences, merits, desires, and the status to live well. This article focuses on whether this discourse has any relevance in the Indian value system. In this article, through the comparison between Indian and Western values, I make an attempt to analyse the moot problem of moral legislation which is bridging the gap between public and private morality for the well-being of women as well as our society. (shrink)

Bioethics as an academic discipline comes into public discourse when real life “hard cases” receive media attention. Since cases of this sort increasingly often become the subject of litigation, the forum for debate can be a court of law, with judges as the final arbiters. Judges (unlike philosophers) are obliged to give final and definitive rulings in a constrained time period. Their training is in a type of discourse very different from moral philosophy, though still concerned with right and wrong. (...) This paper explores the differences between the tools and methods used in public legal debate and private academic discourse, and the different nature of the answers they produce. It attempts to suggest some ways in which bioethicists can better understand lawyers’ reasoning in cases of this sort, and how communication between bioethics and law might be improved. (shrink)

The emotions of shame and guilt have recently appeared in debates concerning legal punishment, in particular in the context of so called shaming and guilting penalties. The bulk of the discussion, however, has focussed on the justification of such penalties. The focus of this article is broader than that. My aim is to offer an analysis of the concept of legal punishment that sheds light on the possible connections between punishing practices such as shaming and guilting penalties, on the one (...) hand, and emotions such as guilt, shame, and perhaps humiliation, on the other. I␣contend that this analysis enhances our understanding of the various theories of punishment that populate this part of criminal law theory and thereby sharpens the critical tools needed to assess them. My general conclusion is that, in different ways, all of the theories we encounter in this area can benefit from paying renewed attention to the nature of the connection between the state’s act of punishing and its expected or perceived emotional effect on the individual. (shrink)

This paper aims to clarify the nature and contents of 'civil ethics' and the source of the binding force of its obligations. This ethics should provide the criteria for evaluating the moral validity of social, legal and morally valid law. The article starts with observing that in morally pluralist Western societies civil ethics already exists, and has gradually started to play the role of guiding the law. It is argued that civil ethics should not be conceived as 'civic morals' which (...) is in fact rather 'state ethics', nor as 'public ethics' which is said to reach its perfection when it becomes law, nor as ethics applicable primarily to the basic structure of a society, but instead as a citizens' ethics. Subsequently the paper attempts to show what the contents of this ethics are, and which ethical theory would be able to ground its obligations. (shrink)