It is a commonplace within philosophy that the ontology of institutions can be captured in terms of constitutive rules. What exactly such rules are, however, is not well understood. They are usually contrasted to regulative rules: constitutive rules (such as the rules of chess) make institutional actions possible, whereas regulative rules (such as the rules of etiquette) pertain to actions that can be performed independently of such rules. Some, however, maintain that the distinction between regulative and constitutive rules is merely (...) a linguistic one. In this paper I present the status account of constitutive rules in order to address this criticism. According to the status account constitutive rules pertain to institutional statuses and statuses are to be understood in terms of status rules. Status rules concern the enabling and constraining roles of institutions, and constitutive rules specify the preconditions that have to be met in order for them to play these roles. Even though I end up endorsing the claim that the distinction mentioned is a linguistic one, I go on to argue that there is an underlying reality that constitutive rules serve to make apparent. (shrink)

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts (...) that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes. (shrink)

The explanation of promising is fraught with problems. In particular the problem that promises can be valid even when nothing good comes of keeping the promise (the problem of ‘bare wrongings’), and the bootstrapping problem with explaining how the mere intention to put oneself under an obligation can create such an obligation have been recognized since Hume’s famous discussion of the topic. There are two influential accounts of promising, and promissory obligation, which attempt to solve the problems: The expectation account (...) and the practice account. While those accounts solve both the bootstrapping problem and the problem of bare wrongings, it turns out that they encounter numerous problems of their own. (shrink)

The explanation of promising is fraught with problems. In particular the problem that promises can be valid even when nothing good comes of keeping the promise (the problem of ‘bare wrongings’), and the bootstrapping problem with explaining how the mere intention to put oneself under an obligation can create such an obligation have been recognized since Hume’s famous discussion of the topic. There are two influential accounts of promising, and promissory obligation, which attempt to solve the problems: The expectation account (...) and the practice account. While those accounts solve both the bootstrapping problem and the problem of bare wrongings, it turns out that they encounter numerous problems of their own. (shrink)

This paper pursues a naturalist endeavor in social ontology by arguing that the Beliefs-Rules-Equilibrium account of institutions can help to advance the debate over the nature of social kinds. This account of institutions emerges from a growing number of works in economics that use game theory to study the role and the functioning of institutions in human societies. I intend to show how recent developments in the economic analysis of rules and institutions can help solve issues that are generally considered (...) constitutive of any ontological inquiry. I argue that the Beliefs-Rules-Equilibrium account of institutions can contribute to advancing the debate on an issue of particular importance, regarding the specific form of dependence characterizing the relation between institutions and individuals’ attitudes about them. I tackle this issue by taking Francesco Guala's claims about the nature of institutions made in his book “Understanding Institutions” as a point of departure. In particular, I reject Guala’s functionalism about institutions. On the basis of the Beliefs-Rules-Equilibrium account, I claim that it is futile to search for constitutive features of general institutions (money, property rights, family…) and that the best we can have is a knowledge of what are the rules within a specific institution, which the agents consider to be essential in their institutional practice. (shrink)

:Most game-theoretic accounts of institutions reduce institutions to behavioural patterns the players are incentivized to implement. An alternative account linking institutions to rule-following behaviour in a game-theoretic framework is developed on the basis of David Lewis’s and Ludwig Wittgenstein's respective accounts of conventions and language games. Institutions are formalized as epistemic games where the players share some forms of practical reasoning. An institution is a rule-governed game satisfying three conditions: common understanding, minimal awareness and minimal practical rationality. Common understanding has (...) a strong similarity with Ludwig Wittgenstein's concept of lebensform while minimal awareness and minimal practical rationality capture the idea that rule-following is community-based. (shrink)

This paper provides a conceptual exploration of the implication of Jeffrey’s rule of belief revision to account for rule-following behavior in a game-theoretic framework. Jeffrey’s rule reflects the fact that in many cases learning something new does not imply that one has full assurance about the true content of the information. In other words, the same information may be both perceived and interpreted in several different ways. I develop an account of rule-following behavior according to which, in the context of (...) strategic interactions, following a rule is defined by two conditions. First, that agents must frame the interaction in a sufficiently similar way and be aware of the same salient properties, i.e. they must have the same partition of the event. Second, they must ascribe to others the same revised probabilities to what they take to be the common partition. In a game-theoretic framework, this also indicates that rule-following behavior cannot be identified merely to the existence of a common prior. (shrink)

This paper provides an account of social practices that reveals how they are constitutive of social agency, enable coordination around things of value, and are a site for social intervention. The social world, on this account, does not begin when psychologically sophisticated individuals interact to share knowledge or make plans. Instead, culture shapes agents to interpret and respond both to each other and the physical world around us. Practices shape us as we shape them. This provides resources for understanding why (...) social practices tend to be stable, but also reveals sites and opportunities for change. (shrink)

This article advances two views on the role of evaluative judgment in clinical assessments of decision-making capacity. The first is that it is rationally impossible for such assessments to exclude judgments of the values a patient uses to motivate their decision-making. Predictably, and second, attempting to exclude such judgments sometimes yields outcomes that contain intractable dilemmas that harm patients. These arguments count against the prevailing model of assessment in common law countries—the four abilities model—which is often incorrectly advertised as being (...) value-neutral in respect of patient decision-making both by its proponents and in statute. A straightforward evaluative model of capacity assessment which wears its values on its sleeves and is biased against what are called ‘serious prudential mistakes’ avoids these rational and practical problems. (shrink)

Why should we obey the rules that constitute a code of conduct? If a rule is justified by conclusive moral reasons, then those reasons are sufficient, from a rational point of view (rather than, sa...

The purpose of this paper is to show how some of the controversial questions concerning utilitarianism can be clarified by the modelling techniques and the other analytical tools of decision theory (and, sometimes, of game theory). It is suggested that the moral rules of utilitarian ethics have a logical status similar to that of the normative rules (theorems) of such formal normative disciplines as decision theory and game theory.The paper argues that social utility should be defined, not in hedonistic or (...) in ideal-utilitarian terms, but rather in terms of individual preferences, in accordance with the author's equiprobability model of moral value judgments. (shrink)

We can observe in the progression of the work of Thomas Hobbes through David Hume to John Rawls a development from a focus on severe disorder to order under law and then to concern with distribution. This striking development is not due simply to changes of normative views, but is in large part about the technical or virtually technological capacities of government. There are also non-normative theoretical and significant developments in their theories. Hence, much of the difference between these philosophers, (...) who superficially appear to disagree deeply, is essentially social scientific. If so, they should all be willing to revise conclusions to fit better social science. This is not the whole story, perhaps, or if it is, then we have to conclude that all of them make big scientific mistakes that vitiate their theories. On this view, Hume comes closest to having the theory right in his time and his account is more compelling as a social scientific account of our issues than are the accounts of Hobbes or Rawls. Key Words: Hobbes • Hume • Rawls • social science • order • justice • technology. (shrink)

(1986). Deterrence and Moral Theory. Canadian Journal of Philosophy: Vol. 16, Supplementary Volume 12: Nuclear Weapons, Deterrence and Disarmament, pp. 161-193.

IntroductionIssues in public policy have been challenging and remaking moral theory for two centuries. Such issues force us to question fundamental principles of ethics while they cast doubt on our ability to generalize from traditional intuitions. No issue poses more remarkable difficulties for moral theory than nuclear weapons policy. Because the consequences of their deployment and therefore possible use could be grievous beyond those of any previously conceivable human action, these weapons frame the conflict between outcome-based, especially utilitarian, and action-based (...) deontological moral theories more acutely than perhaps any other we have faced. Just because nuclear weapons may bring about the most grievous outcome imaginable, they elevate concern with outcomes over concern with actions. More generally, they wreak havoc with the focus on the morality of individual choices and actions, set limits to the notion of intention and the doctrine of double effect, call into question the so-called just-war theory, and overwhelm the intuitionist basis of much of ethical reasoning. (shrink)

The aim of this paper is to present a solution to a problem that arises from the fact that people who commit crimes under the influence of serious mental disorders may still have a capacity to refuse treatment. Several ethicists have argued that the present legislation concerning involuntary treatment of people with mental disorder is discriminatory and should change to the effect that psychiatric patients can refuse care on the same grounds as patients in somatic care. However, people with mental (...) disorders who have committed crimes and been exempted from criminal responsibility would then fall outside the scope of criminal justice as well as that of the psychiatric institutions if they were to refuse care. In this paper, I present and develop a solution to how society should deal with this group of people, called Advance criminal responsibility. The basic idea being that if a person with a potentially responsibility exempting psychiatric condition refuses care, that person is responsible for any future criminal acts which are due to the mental disorder. (shrink)

According to deterrence justifications of legal punishment, legal punishment is justified at least in part because it deters offenses. These justifications rely on important empirical assumptions, e.g., that non-punitive enforcement can't deter or that it can't deter enough. I’ll challenge these assumptions and argue that extant deterrence justifications of legal punishment fail. In the process, I examine contemporary deterrence research and argue that it provides no support for these justifications.

This article characterizes politics, philosophy, and economics as a substantive research programme as a flexible and analytic debate on the relations between the individual and society that incorporates both positive and normative analyses. This, in contrast to a view of PPE as a series of interdisciplinary or multidisciplinary topics. To this end, I sketch the general shape of the research programme, it boundaries and its features, before offering a slightly more detailed account of some aspects of the PPE programme. I (...) also defend the claim that there is some value in recognizing PPE as a research programme, and after discussing the conditions required for the programme to thrive, suggest that there is some reason to be concerned for its future. (shrink)

This article argues that it is possible to hold autonomous agents themselves, and not only their makers, users or owners, responsible for the acts of these agents. In this connection autonomous systems are computer programs that interact with the outside world without human interference. They include such systems as ‘intelligent’ weapons and self-driving cars. The argument is based on an analogy between human beings and autonomous agents and its main element asserts that if humans can be held responsible, so can, (...) in principle, autonomous agents, as humans are more like autonomous agents than is often assumed. (shrink)

Current debates in social ontology are dominated by approaches that view institutions either as rules or as equilibria of strategic games. We argue that these two approaches can be unified within an encompassing theory based on the notion of correlated equilibrium. We show that in a correlated equilibrium each player follows a regulative rule of the form ‘if X then do Y’. We then criticize Searle's claim that constitutive rules of the form ‘X counts as Y in C’ are fundamental (...) building blocks for institutions, showing that such rules can be derived from regulative rules by introducing new institutional terms. Institutional terms are introduced for economy of thought, but are not necessary for the creation of social reality. (shrink)

In general, we think that when it comes to the good of another, we respect that person’s will by acting in accordance with what he wills because he wills it. I argue that this is not necessarily true. When it comes to the good of another person, it is possible to disrespect that person’s will while acting in accordance with what he wills because he wills it. Seeing how this is so, I argue, enables us to clarify the distinct roles (...) that the wills of competent and incompetent people should play in third-party deliberations about their welfare. (shrink)

Empirically minded philosophers have raised questions about judgments and theories based on moral intuitions such as Rawls’s method of reflective equilibrium. But they work from the notion of intuitions assumed in empirical work, according to which intuitions are immediate assessments, as in psychologist Jonathan Haidt’s definition. Haidt himself regards such intuitions as an appropriate basis for moral judgment, arguing that normal agents do not reason prior to forming a judgment and afterwards just “confabulate” reasons in its defense. I argue, first, (...) that the notion of “considered intuitive judgment” that Rawls spells out when he first presents his method is pre-theoretical, but not at all pre-reflective, in the way Haidt’s definition supposes; it may rest on various forms of reasoning short of systematic derivation from theoretical principles. I go on to take issue with Haidt’s dismissal of ex post facto moral reasoning, arguing that it can play both a causal role in an individual’s later intuitions or judgments and a legitimate normative role, as required by moral competence in judging non-taboo cases. I suggest that the move from intuition to judgment and thence to ex post facto reasoning makes sense as a justificatory version of Peircean abduction, or what is now mainly called “inference to the best explanation.”. (shrink)

Con objeto de establecer las bases de un castigo penal justo, H.L.A. Hart propone una visión alternativa a las versiones tradicionales. El planteamiento de Hart muestra que los enfoques principales no han superado problemas de incuestionable importancia: la justificación moral del castigo penal y su aplicación justa. En este sentido, el trabajo de Hart se sitúa entre el consecuencialismo y el retribucionismo. De esta manera, si un castigo está justificado debe tener buenas consecuencias para la sociedad castigando sólo a quien (...) lo merece. Finalmente, la propuesta de Hart conectará con su concepción del Derecho dando a los individuos las capacidades de guiar su propia vida con previsión, confianza, seguridad y libertad. In order to establish the basis of a fair criminal punishment, H.L.A. Hart proposes an alternative view to the traditional versions. Hart’s approach shows that the main approaches have not overcome problems of unquestionable importance: the moral justification of criminal punishment and its fair application. In this sense, Hart’s work is between consequentialism and retributivism. In this way if a punishment is to be justified must have good consequences on society punishing only those who deserve it. Finally, Hart’s approach will connect with his own conception of law giving individuals the capacities to guide their own life with foresight, confidence, security and freedom. (shrink)

ABSTRACT AIDS raises the moral problem of confidentiality because those in sexual contact with the patient may contract a life‐threatening and incurable disease. Medicine has a tradition in which a patient's condition is regarded as confidential information held by the doctor alone. In this case there is a clear moral inclination to inform those at risk from the disease. In most cases no problem will arise but when it does the moral justification for a violation of confidentiality comes into question. (...) Confidentiality is important because of our respect for certain human values and their importance to our patient. Where that patient acts so as to disregard the welfare of others with whom they are in close relationship, those values are lacking. This lack warrants a departure from our normal canons and provokes a suspension of normal moral privileges. The contention that any transgression, however slight, could be held to justify such a response posits a slope down which we, in fact, have no tendency to slide. (shrink)

Luck egalitarianism has come under a lot of criticism for its apparent harshness towards negligent victims of voluntary actions (the harshness objection) and its inability to respond to morally-acceptable voluntary acts that lead to disadvantage (the discrimination objection). This paper surveys a series of responses in the luck egalitarian literature, showing that for the most part each one is unable to respond, on its own, to the crux of the objections. These responses often face a dilemma: Either they must bite (...) the bullet on the objections to retain their luck egalitarian commitments, or they must propose a reply to the objection that diverges from their core luck egalitarian principles. In this paper, I advance a preliminary framework for grounding luck egalitarian theories of justice based upon a two-level model and what I shall call the Fact of Inherent Normativity. Two-level luck egalitarianism makes fundamental rights and basic needs de facto insensitive to responsibility at the first level, while retaining the scope for responsibility for the distribution of second-level goods. The account remains distinctly luck egalitarian, while leaving scope for the consideration of rights, respect, and a host of other morally relevant considerations within the luck egalitarian framework. Luck egalitarianism, properly understood as a two-level theory, can successfully respond to objections against its harshness and propensity to discriminate. (shrink)

Normative theories can be useful in developing descriptive theories, as when normative subjective expected utility theory is used to develop descriptive rational choice theory and behavioral game theory. “Ought” questions are also the essence of theories of moral reasoning, a domain of higher mental processing that could not survive without normative considerations.

Abstract:I argue that, since the legal order is a public good, an act of legal punishment may be viewed as the imposition of a kind of tax, which I label ‘a quasi-tax’. Once punishment is viewed as a quasi-tax, the traditionally opposed approaches to punishment may be reconciled, as both utility and retribution jointly justify an act of legal punishment. I discuss objections to my argument and I reply to them.

Scriven’s paradox of predictability arises from the combination of two ideas: first, that everything in a deterministic universe is, in principle, predictable; second, that it is possible to create a system that falsifies any prediction that is made of it. Recently, the paradox has been used by Rummens and Cuypers to argue that there is a fundamental difference between embedded and external predictors; and by Ismael to argue against a governing conception of laws. The present paper defends a new diagnosis (...) of the roots of the paradox. First, it is argued that the unpredictability has to be understood in the light of Turing’s famous results about computability, in particular his proof that there is no solution to the ‘halting problem.’ This allows us to see that previous analyses of the paradox were either mistaken or not fully adequate. Second, the sense of paradox that nevertheless remains is traced to the idea that rational behaviour is not dependent on contingent environmental circumstances: that it is always up to us to engage in activities such as rational prediction or rational belief. The paradox of predictability teaches us that this idea, natural though it may be, is mistaken. (shrink)

David lyons has recently argued that mill's ethics is an alternative to both act and rule utilitarianism. In the first part of this paper I argue that lyons makes mill out to be far too much of a rule utilitarian. The second part of the article then provides an account of mill's theory of moral rules based on an analysis of the four functions rules serve in his ethics. On this reading mill's theory is a hybrid of act and rule (...) utilitarianism: violation of a moral rule is a necessary but not a sufficient condition for wrongdoing. (shrink)

In this article I articulate two pairs of theses about the relationship between the right and the good and I sketch an account of morality that systematically vindicates all four theses, despite a nearly universal consensus that they are not all true. In the first half I elucidate and motivate the theses and explain why leading ethical theorists maintain that at least one of them is false; in the second half I present the outlines of an account of the relationship (...) between the right and the good satisfying all four theses. (shrink)

This article addresses the theoretical difficulty of justifying the use of penal coercion in circumstances of marked, unjustified social inequality. The intuitive belief behind the text is that in such a context—that of an indecent State—justifying penal coercion becomes very problematic, particularly when directed against the most disfavored members of society.

In this paper I provide a new account of linguistic presuppositions, on which they are ancillary speech acts defined by constitutive norms. After providing an initial intuitive characterization of the phenomenon, I present a normative speech act account of presupposition in parallel with Williamson’s analogous account of assertion. I explain how it deals well with the problem of informative presuppositions, and how it relates to accounts for the Triggering and Projection Problems for presuppositions. I conclude with a brief discussion of (...) the consequences of the proposal for the adequacy of Williamson’s account of assertion. (shrink)

The paper distinguishes between two conceptions of kinds defined by constitutive rules, the one suggested by Searle, and the one invoked by Williamson to define assertion. Against recent arguments to the contrary by Maitra, Johnson and others, it argues for the superiority of the latter in the first place as an account of games. On this basis, the paper argues that the alleged disanalogies between real games and language games suggested in the literature in fact don’t exist. The paper relies (...) on Rawls’s distinction between types of practices and institutions defined by constitutive rules, and those among them that are actually in force, and hence are truly normative; it defends along Rawlsian lines that a plurality of norms apply to actual instances of rule-constituted practices, and uses this Rawlsian line to block the examples that Maitra, Johnson and others provide to sustain their case. (shrink)

Descriptive semantic theories purport to characterize the meanings of the expressions of languages in whatever complexity they might have. Foundational semantics purports to identify the kind of considerations relevant to establish that a given descriptive semantics accurately characterizes the language used by a given individual or community. Foundational Semantics I presents three contrasting approaches to the foundational matters, and the main considerations relevant to appraise their merits. These approaches contend that we should look at the contents of speakers’ intuitions; at (...) the deep psychology of users and its evolutionary history, as revealed by our best empirical theories; or at the personal‐level rational psychology of those subjects. Foundational Semantics II examines a fourth view, according to which we should look instead at norms enforced among speakers. The two papers aim to determine in addition the extent to which the approaches are really rival, or rather complementary. (shrink)

Philosophical discussions of legal ethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legal ethics is based on a solution to the generative problem. On the generative method , theories of legal ethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent theories of legal ethics, finding that (...) none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legal ethics. Philosophically, it moves theoretical debates about legal ethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legal ethics that have, to date, largely been conjectured. (shrink)

When Peter Strawson subtitled the most celebrated book in ordinary language philosophy, Individuals, ‘An essay in descriptive metaphysics’, he shocked mainly for having reintroduced ‘metaphysics’ into intellectually respectable English a quarter-century after A.J. Ayer had consigned it to the logical positivists' index of forbidden philosophical words . Few at the time appreciated the import of the modifiers ‘descriptive’ and its opposite, ‘revisionary’. Now, another half century on, philosophers have come around to Bertrand Russell's original view that both the ordinary language (...) philosophy Strawson championed and the ideal scientific language philosophy Ayer championed offer alternative metaphysical visions. The remaining question of philosophical interest is what hangs in the balance between a descriptive and revisionary approach to metaphysics – or, for that matter, any branch of philosophy. This paper critically examines the currently dominant descriptive approach from a revisionary standpoint, initially relying on the terms Strawson uses to frame the distinction, and then moving outward to consider its implications for our understanding of the history of modern philosophy, especially the ‘naturalist’ sensibility that has been especially influential in analytic social epistemology. (shrink)

This paper offers an account of the social foundations of a theory of democracy. It purports to show that a social ontology of democracy is the necessary counterpart of a political theory of democracy. It notably contends that decisions concerning basic social ontological assumptions are relevant not only for empirical research, but bear a significant impact also on normative theorizing. The paper then explains why interactionist rather than substantialist social ontologies provide the most promising starting point for building a social (...) ontology of democracy. It then introduces and examines the three notions of habits, patterns of interaction, and forms of social organization, conceived as the main pillars of an interactionist social ontology of democracy and briefly discusses some major implications of this approach for democratic theory. (shrink)

This paper aims to develop a new understanding of normativity based upon the priority of the ordinary. By relying upon diverse sociological and philosophical traditions, the paper seeks to emphasize the ordinary tacit assumptions which provide the basic structure of our experience of the world and its normative features. The general argument is that, whereas sociological traditions of social interactionism shed new light upon the “empirical fact of normativity”, ordinary language philosophy and pragmatism offer a theoretical account of normativity which (...) is consistent with the picture of normativity which emerges out of these empirical descriptions. The paper synthesizes the main achievements of these traditions into a unified account of normativity. (shrink)

Instead of the question, ‘do we have an obligation to obey the law?,’ we should first ask the more modest question, ‘do we have reasons to obey the law?’ This paper offers a new account of the notion of the content-independence of legal reasons in terms of the grounding relation. That account is then used to mount a defense of the claim that we do indeed have content-independent moral reasons to obey the law (because it is the law), and that (...) these reasons, very plausibly, often amount to an obligation to so act. (shrink)

Researchers studying at-risk and socially disenfranchised child and adolescent populations are facing ethical dilemmas not previously encountered in the laboratory or the clinic. One such set of ethical challenges involves whether to: (a) share with guardians research derived information regarding participant risk, (b) provide participants with service referrals, or (c) report to local authorities problems uncovered during the course of investigation. The articles assembled for this special section address the complex issues of deciding if, when, and how to report or (...) provide referrals for research participants who are minors (referred to hereafter as minor research participants). This paper focuses on two factors underlying these decisions: the validity of risk estimates and meta-ethical positions on scientific responsibility. It is suggested that, before sharing information about minor research participants investigators should do the following: critically examine the diagnostic validity of developmental measures, include the scope and limitations of information sharing in informed consent procedures, and become familiar with state reporting laws. I discuss the impact of the traditionally accepted act utilitarian meta-ethical position on the investigator-participant relationship, and I recommend consideration of alternative positions as a step toward developing a research ethic of scientific responsibility and care. (shrink)

Retributivism is often portrayed as a rights-respecting alternative to consequentialist justifications of punishment. However, I argue that the political legitimacy of retribution is doubtful precisely because retribution privileges a controversial conception of the good over citizens’ rights and more widely shared, publicly accessible interests. First, even if retribution is valuable, the best accounts of its value fail to show that it can override or partially nullify offenders’ rights to the fundamental forms of liberty of which criminal punishment paradigmatically deprives them. (...) Second, the importance of publicly justifying basic forms of coercion on the basis of broadly shared values is a good reason to think that the state should not punish for retribution even those citizens whose actions have created a state interest in punishing them that overrides or partially nullifies their presumptive rights. (shrink)