This paper describes and defends a novel and distinctively egalitarian conception of the rule of law. Official behavior is to be governed by preexisting, public rules that do not draw irrelevant distinctions between the subjects of law. If these demands are satisfied, a state achieves vertical equality between officials and ordinary people and horizontal legal equality among ordinary people.

The essays in Waldron’s Torture, Terror, and Trade-Offs have important implications for debates about the criminalization of terrorism and terrorism-related offences and its consequences for criminal law and criminal justice. His reflections on security speak directly to contemporary debates about the preventive role of the criminal law. And his analysis of inter-personal security trade-offs invites much closer attention to the costs of counter-terrorism policies, particularly those pursued outside the criminal process. But is Waldron right to speak of a ‘welcome the (...) return to the criminal justice model’? This article considers the arguments in favour of prioritizing the prosecution of terrorist suspects and asks if their prosecution can safely proceed without undue hazard to the criminal law and criminal process. (shrink)

The article deals with two consequentialist theories and their comparison in terms of promoting certain values and evaluation of moral agents’ actions and behaviour. A basic presupposition is their mutual compatibility based primarily on their consequentialist nature. The paper searches for possible evidence that presented theories might be denominated as hybrid theories based on their dynamic transformations and it also searches for possible mutual enrichment of these theories/approaches as their examined similar character might be a good starting point for such (...) goals. The nature of ethical values is questioned as well as the idea (supported by relevant argumentation) of not distinguishing ethical theories based on their implicit inclination towards usage of specific values. The paper confronts these traditional (classical) ideas of making such differentiation and thus strictly connecting specific moral values with specific ethical theories and not allowing possible productive associations. Ethics of social consequences and the theory of lesser evil are chosen as examples to prove that not limited approaches in terms of operation with only specific type of values might be productive. Their dynamic character predestines these theories to be hybrid ethical theories and thus compatible in their value structure and theory of right. (shrink)

This article critiques the idea of instrumental justification for violent means seen in Hannah Arendt's writings. A central element in Arendt's argument against theorists like Georges Sorel and Frantz Fanon in On Violence is the distinction between instrumental justifications and approaches emphasizing the `legitimacy' of violence or its intrinsic value. This doesn't really do the work Arendt needs it to in relation to rival theories. The true distinctiveness of Arendt's view is seen when we turn to On Revolution and resituate (...) the later arguments of On Violence in the context of her ideas about the separation between revolution and liberation. Arendt's commitment to the American discovery in revolutionary politics of a means that needs no further ends to justify it permits a rereading of her conception of liberation as an attempt to envisage a violence that, while tactically instrumental, is at the same time politically non-instrumental. But while Arendt's view is distinct, the article also highlights important thematic continuities with the writings of Sorel and Walter Benjamin. (shrink)

Abstract Noting that the use of modern instruments of war had unpredictable and revolutionary consequences, Morris Janowitz introduced the concept of a ?constabulary force? to show how a professional military in a liberal democratic state might use modern weapons and yet conserve the existing political order. This article explores the meaning of this concept in three ways. First, it examines the strategic assumptions underlying the concept to explain why Janowitz thought it offered an approach to containing the revolutionary consequences of (...) the use of force that was more promising than alternative concepts of military force. Second, it explores the moral implications of the concept (which Janowitz did not do), identifying key moral commitments a constabulary force must meet to sustain a liberal democratic order as it attempts to resolve dilemmas posed by the use of force. Third, it considers in what way these moral commitments are particular to a constabulary force, while yet preserving an approach to the use of force that could be applied across the spectrum of force by military structures of various kinds. (shrink)

In this paper, we explore the role of reciprocity in the employment of restrictive measures in contexts of contagion. Reciprocity should be understood as a substantive value that governs the use, level and extent of restrictive measures. We also argue that independent of the role reciprocity plays in the legitimisation the use of restrictive measures, reciprocity can also motivate support and compliance with legitimate restrictive measures. The importance of reciprocity has implications for how restrictive measures should be undertaken when preparing (...) and evaluating public health responses to contagion. (shrink)

This article examines the post-9/11 policing of points of entry and transfer at US airports and the ways these points become “forbidden places” to those deemed undesirable, in order to expose the ambiguity of forbiddenness with respect to place. It uses Michel Foucault’s theory of biopolitics to argue that the War on Terror has created a class of expendable non-persons whose legal identities (citizenships) are not acknowledged and Giorgio Agamben’s analysis of “the camp” as a metaphor for the spaces in (...) airports that are neither entirely inside nor outside a national jurisdiction. This discussion takes place, in part, through the case study of suspected terrorist Maher Arar, arguing that his case shows the displacement of our sense of prohibition, away from spaces and onto persons. (shrink)

We are often faced with dilemmatic situations in which we must choose between alternative courses of action, both of which will have a bad outcome. It is commonly held that in such cases it is both uncontroversial and unproblematic that we have to choose the lesser evil. However, despite its frequent application in ethical decision-making, lesser evil reasoning is not well understood by most of its advocates and it thus occasions much misunderstanding and it presents a number of pitfalls. In (...) this paper I shall thus, first, analyse the concept of a lesser evil; second, offer a critical assessment of lesser evil reasoning; third, discuss the most common pitfalls writers tend to fall into; and finally, explore the application of lesser evil reasoning to choices under uncertainty. (shrink)

A surprising lack of consensus exists among contemporary Jewish scholars about Judaism's position vis-à-vis torture. Some claim that Judaism condones torture while others insist that Judaism condemns it. These diverging opinions on such a troubling practice suggest an ambivalence deep within the Judaic textual tradition about torturing bodies. This brief essay critiques both perspectives for twisting the textual tradition and offers some preliminary suggestions for a more robust Judaic approach to torture.

This essay makes three claims about preventive war, which is demarcated from preemptive war and is part of a broader class of ?anticipatory? wars. Anticipatory wars, but especially preventive war, are ?hard cases? for traditional Just War theory; other puzzles for this tradition include nuclear deterrence, humanitarian intervention, and provability a priori of the success of Tit-for-Tat. First, and despite strong assertions to the contrary, it is far from clear that preventive war is absolutely prohibited in traditional Just War Theory, (...) and it is also dubious that it is in all cases ?clearly illegal?. Second, the morality of both preemptive and preventive wars is shown to turn on epistemological considerations: on what degree and kind of justification the primary metaphysical facts of threat can be reasonably believed. Third, an argument is made that whatever epistemic threshold is held to be necessary, some preventive wars will exceed it, and that this is more likely with advancing technologies of information acquisition. Finally, the common argument that allowing all nations to follow policies of preventive war would result in more wars than barring such policies is shown to be mistaken by simulations in game theory. Suggestions are made about the derivation of traditional Just War criteria from more basic moral principles, and about their subtle failures as jointly necessary conditions for the morality of war. (shrink)

In his essay, ‘The Question of Machiavelli’, Isaiah Berlin notes the depth of Machiavelli's pluralism. Taking my cue from Berlin, I argue that much modern liberal political philosophy neglects this deep pluralism and, as a result, misunderstands modern political problems such as the phenomenon of religiously-motivated terrorism.

This paper is about Gandhi's critique of politics, of which his ambivalence towards democracy was a part. I argue that for Gandhi the ground of moral action is fearlessness, while that of political reason is security and self-defense. Gandhi sees the context of moral action in the mundane fabric of everyday life, in places such as the family and the village. For that reason he does not believe that moral action requires being supplemented by the particular kind of unity which (...) politics and the state call for and necessitate. (shrink)

Despite the relative ease and regularity with which it is used by policymakers and the functional role that it often plays in the policy development process, the concept of reasonableness has essentially been overlooked by public policy scholars in their analysis of the factors influencing the development of public policy. However, the maintenance of the analytical status quo is likely to prove increasingly difficult. As the issues that governments must address become increasingly complicated and controversial and it becomes correspondingly more (...) difficult to identify easily or clearly the most appropriate response to associated problems, policymakers will inevitably be forced to place greater reliance on the concept of reasonableness as the final court of appeal when seeking to determine the attractiveness and acceptability of policy decisions. Accordingly, it seems ‘reasonable’ to suggest that greater, explicit consideration be given to the concept of reasonableness and the role it does and should play in the development of public policy. This article simultaneously offers both a brief overview of the current situation with respect to the meaningful consideration of the concept of reasonableness by public policy scholars and practitioners and a preliminary argument for a reconsideration of the analytical status quo. (shrink)

Nombrar al mal: soberanía, seguridad y guerra ilegal Este artículo defiende la importancia fundamental del "nombrar al mal" como operación constitutiva del discurso político moderno. Para lograr este objetivo, el artículo llama primero la atención sobre cómo los discursos institucionales y públicos globales, y aparentemente consensuados, han definido al Estado Islámico de Irak y Siria como una forma contemporánea del "mal" y cómo la comunidad internacional ha concebido su posicionamiento de cara a esta entidad. Basándose en este análisis y en (...) la historia de las luchas de los primeros tiempos de la modernidad contra los piratas y los "enemigos de la humanidad", el artículo muestra que la modernidad política no ha logrado borrar la práctica "arcaica" de nombrar al mal, sino que se ha apoyado constantemente en ella. Para fundar esta afirmación, el artículo identifica los patrones discursivos y los efectos prácticos de la nominación del mal, y destaca la relación ambivalente entre la nominación del mal y la soberanía y la seguridad como piedras angulares de la modernidad política. El artículo concluye abordando la cuestión de si, y hasta qué punto, el concepto del mal puede ser criticado y descartado, como han argumentado algunos estudiosos. (shrink)

On Michael Walzer's influential account, "dirty hands" characterizes the political leader's choice between absolutist moral demands (to abstain from torture) and consequentialist political reasoning (to do what is necessary to prevent the loss of innocent lives). The impulse to torture a "ticking bomb terrorist" is therefore at least partly pragmatic, straining against morality, while the desire to uphold a ban on torture is purely and properly a moral one. I challenge this Machiavellian view by reinterpreting the dilemma in the framework (...) of the Humean theory of justice and moral sentiment. By interpreting the ticking bomb scenario as a dramatic narrative, I argue that it appeals to properly moral sensibilities, which speak in favour of the use of force against the terrorist. The absolute ban on torture, by contrast, is an artificial virtue and a product of political prudence. On this account, the ticking bomb terrorist dilemma therefore imposes a different burden on the political leader from Walzer's version: an ethic of political responsibility demands that the political leader be prepared to sacrifice her moral soul by upholding the law against moral but politically imprudent demands to break it; while the ticking bomb romance appeals to her feelings of compassionate moral concern towards particular individuals. She dirties her hands morally, not by authorizing torture, but by allowing the terrorist's bomb to detonate and take the lives of the innocent. (shrink)

This article describes findings from a survey of high school students in New Jersey, Pennsylvania, and Florida, regarding their views of war and wartime policy. The survey is drawn from, and correlated to, elements of the Just War doctrine, a philosophical framework which forms the basis of most international law, treaties, and conventions. The survey results indicate that students tend to adhere to traditional moral norms regarding the conditions for engaging in war, but have considerable divergences from internationally-held principles regarding (...) how a war is waged. The findings indicate that social studies instructors face impediments in helping students acquire high-level, meaningful conceptions of war as a topic of study. The article describes the necessity of moral and critical inquiry in social studies education and the value of the Just War doctrine as pedagogical tool towards that end. (shrink)

The aim of this paper is to study and analyse the Charlie Hebdo attacks from a methodological and an ethical perspective, concentrating generally, though in some cases indirectly, on the consequences of our actions and the motives behind them. The analysis examines the issues of liberties, freedoms and responsibilities in general and further applies these values to the phenomenon of terrorism in contemporary society. The primary goal of this study is to use the Thomas Aquinas doctrine of double effect and (...) Michael Ignatieff’s lesser evil theory to appraise specific acts of terrorism. The article suggests that certain freedoms should be limited in democratic societies and thus ensure safety. (shrink)

Residents with dementia in long-term care facilities (LTCFs) often receive antipsychotic (AP) medications without clear clinical indications. One non-clinical factor influencing the use of APs in LTCFs is low staff levels. Often, using APs is viewed and rationalised by healthcare professionals in LTCFs as a lesser evil option to manage low staff levels. This paper investigates the ethical plausibility of using APs as a lesser of two evils in resource-constrained LTCFs. I examine the practice vis-à-vis the three frequently invoked conditions (...) of lesser evil justifications as specified in the wider philosophical literature. These conditions include (1) the necessity condition, (2) the condition of sensitivity to both deontic (ie, constraint-based) and non-deontic (ie, outcome-based) considerations and (3) the commensurability condition. I argue that there are considerable difficulties in demonstrating that the practice in question satisfies the conditions of lesser evil justifications. In particular, there are major difficulties in satisfying the condition of sensitivity to deontic and outcome-based considerations, and the commensurability condition. I also argue that the current philosophical debate on lesser-evil justifications is not straightforwardly applicable to the practice of using APs for non-clinical purposes in LTCFs. I contend that caregivers are not so-called ‘generic’ agents, and the assumed rarity of lesser evil cases is questionable. I conclude that until further work is done to resolve these issues, the lesser evil reasoning cannot be, at least routinely, used to formulate robust moral justifications for the practice in question. (shrink)

In "The Law of Peoples" John Rawls casts his proposals as an argument against what he calls "political realism." Here, I contend that a certain version of "Christian political realism" survives Rawls's polemic against political realism sans phrase and that Rawls overstates his case against political realism writ large. Specifically, I argue that Rawls's dismissal of "empirical political realism" is underdetermined by the evidence he marshals in support of the dismissal and that his rejection of "normative political realism" is in (...) tension with his own normative concessions to political reality as expressed in "The Law of Peoples." That is, I contend that Rawls, himself, needs some form of political realism to render persuasive the full range of normative claims constituting the argument of that work. (shrink)

Recent years have seen a revival of interest in Michael Walzer's doctrine of ‘supreme emergency’. Simply put, the doctrine holds that, when a state confronts an opponent who threatens annihilation, it can be morally legitimate to violate one of the cardinal rules of the war convention – the principle of non-combatant immunity. Walzer cites the case of Britain's decision to bomb German cities in 1940 as a case in point. Although the theory of supreme emergency has been scrutinised, the historical (...) case that Walzer refers to has not been looked at in depth. This article seeks to remedy this problem by asking whether the principle actors involved in the decision to bomb German cities understood themselves to be in a supreme emergency. It argues that the British leadership never openly admitted that they were in fact targeting German civilians, and that the principle reason for this was a widespread belief that the British and American publics would not support such a campaign. As a result, throughout the war, the British government publicly maintained the fiction that the devastation of German cities was a collateral product of attacks on its industrial infrastructure. This, in turn, suggests that liberal societies – even those facing imminent destruction – do not tend to support a relaxing of the rules of non-combatant immunity, suggesting that the prohibition on deliberately killing non-combatants may be more embedded than has hitherto been thought. (shrink)

During the past few decades, Michael Moore has written incisively on an array of matters concerning the relationships between law and morality. While reflecting on those relationships, he has plumbed the nature of morality itself in impressive depth. Among the topics which he has addressed, the problem of torture has been prominent and controversial. It is a problem, moreover, that has led to some of his most searching enquiries into the character of moral obligations. In the present essay I take (...) issue not only with many of Moore's conclusions about torture, but also with some of his more far‐reaching claims about the domain of morality. (shrink)