Many contemporary act consequentialists define facts about what we should do in terms of facts about what we should prefer. They claim that we should perform an action if and only if we should prefer its outcome to the outcome of any available alternative. Some of these theorists claim they can accommodate deontic constraints, such as a constraint against killing the innocent. I argue that they can’t. If there’s a constraint against killing, then when we can prevent five killings only (...) by killing one, we shouldn’t kill—but we should prefer the outcome where we do. (shrink)

Legal anti-positivism is widely believed to be a general theory of law that generates far too many false negatives. If anti-positivism is true, certain rules bearing all the hallmarks of legality are not in fact legal. This impression, fostered by both positivists and anti-positivists, stems from an overly narrow conception of the kinds of moral facts that ground legal facts: roughly, facts about what is morally optimific—morally best or morally justified or morally obligatory given our social practices. A less restrictive (...) view of the kinds of moral properties that ground legality results in a form of anti-positivism that can accommodate any legal rule consistent with positivism, including the alleged counter-examples. This form of “inclusive” anti-positivism is not just invulnerable to extensional challenges from the positivist. It is the only account that withstands extensional objections, while incorporating, on purely conceptual grounds, a large part of the content of morality into law. (shrink)