At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many (...) private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

Over the last 25 years, there has been a concerted effort to settle questions about multiple realization by bringing detailed scientific evidence to bear. Ken Aizawa and Carl Gillett have pursued this scientific approach to multiple realization with a precise theory and applications. This paper reviews the application of the Dimensioned approach to human color vision, addressing objections that have appeared in the literature.

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminals, exacerbate mass incarceration, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's ‘illusionist’ response to responsibility skeptics – that even if responsibility skepticism is correct, society should maintain a responsibility‐realist/retributivist criminal justice (...) system – is generally compelling, it would not work if a majority of society were to convert, theoretically and psychologically, to responsibility skepticism. In this (highly improbable) scenario, and only in this (highly improbable) scenario, the criminal justice system would need to be reformed in such a way that it aligned with the majority's responsibility‐skeptical beliefs and attitudes. (shrink)

This invited entry offers a brief overview of criminal responsibility. -/- The first part starts with a question: is Clyde criminally responsible for killing his girlfriend Bonnie? The answer: it depends. Particular circumstances determine whether Clyde is guilty of murder, guilty of manslaughter, not guilty because he has a good excuse, or not guilty because he has a good justification. -/- The second part addresses the complicated relationship between criminal responsibility and moral responsibility. Until recently, both concepts were considered to (...) be more or less interchangeable. But there is a growing movement, which I refer to as "responsibility skepticism," which maintains that moral responsibility is either physically or metaphysically impossible. If the responsibility skeptics are right (that moral responsibility is impossible), then what are the implications for criminal responsibility and just criminal punishment? Should we abandon these as well? Or can they survive without moral responsibility? I try to answer these questions. -/- The third part addresses social causation. The criminal justice system tends to be "dispositionalist"; it tends, that is, to assume that criminal responsibility resides entirely within the defendant. Dispositionalism, however, overlooks the fact that who we are and what we do are significantly determined by environmental influences. I then try to show that this "situationist" alternative to dispositionalism should not radically alter our approach to criminal punishment. -/- The final part briefly discusses the difficulty in evaluating criminal responsibility when the defendant is both an offender and a victim - especially when the defendant is an offender *because* of his victimization. (shrink)

This paper proposes a radical re-examination of the foundations of modern aesthetics. It urges that we replace the tradition of eighteenth century aesthetics, with its insistence on disinterestedness and the separateness of the aesthetic, and its problematic oppositions, such as the separation of sense from cognition. In their place it appeals to a more process-oriented, pluralistic account, one that takes note of varying cultural traditions in aesthetics, that recognizes the aesthetic as a complex of many forces and factors, and that (...) considers the aesthetic as part of a complexity of values, including moral, practical, social, and political ones. It urges, further, an aesthetic-based criticism, not only of the arts, but of culture and knowledge. Central to this account is the idea of aesthetic engagement, which not only recognizes and extends the many connections of and in aesthetic experience, but invites our total involvement as active participants. (shrink)

I argue for two propositions. First, contrary to the common wisdom, we may justly punish individuals who are not morally responsible for their crimes. Psychopaths – individuals who lack the capacity to feel sympathy – help to prove this point. Scholars are increasingly arguing that psychopaths are not morally responsible for their behavior because they suffer from a neurological disorder that makes it impossible for them to understand, and therefore be motivated by, moral reasons. These same scholars then infer from (...) this conclusion that they must also lack criminal responsibility and therefore that our continuing to punish psychopaths for their crimes is unjust. My response is that this inference is entirely fallacious. -/- Criminal responsibility turns out to be quite distinct from moral responsibility. The two kinds of responsibility require very different conditions to be satisfied. In particular, criminal responsibility, unlike moral responsibility, does not require an agent be able to grasp and follow moral reasons; it requires only that the individual be able to grasp and follow criminal laws. Once this point is recognized, it becomes much easier to accept my thesis: while the subset of psychopaths who commit crimes are not morally responsible for their criminal behavior because they cannot understand moral reasons, they are still criminally responsible because they can understand what the consequences will be if they get caught. For this reason, even though I concede that psychopaths are not morally responsible for the crimes that they commit, our practice of punishing them for these crimes is still just. -/- Second, I argue that psychopathy is a mental illness and should be recognized as such. One reason that it should be recognized as a mental illness is simply because it is; it satisfies the main criteria for inclusion in the DSM-IV, the “bible” of mental disorders. The other reason is more practical than conceptual. It starts with two facts: the U.S. Supreme Court has decided that the preventive detention of any individual who is not a criminal suspect is not constitutional unless the individual is not only dangerous but also mentally ill; and psychopathy is not currently considered to be a mental illness. So, as things now stand, we cannot preventively commit dangerous psychopaths – that is, psychopaths who have clearly indicated that they will be committing serious crimes. Instead, we must wait for them to commit the crimes before we can lock them up. Unfortunately, this incarceration always comes too late for the victims. It would therefore be better if we could lock them up before they actually inflict any harm. Once again, then, I propose that the legal and psychological communities classify psychopathy as a mental illness. (shrink)

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: the psychological factors that motivate the individual’s behavior are environmentally determined and her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted. -/- To get to this conclusion, I will proceed in four steps. In (...) Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption ultimately because we sympathize with agents who lack responsibility for their actions. -/- Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former. -/- Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility. -/- Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299, I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge. (shrink)

I argue that the three strongest arguments against metaphysical libertarianism—the randomness objection, the constitutive luck objection, and the physicalist objection—are actually unsuccessful and therefore that metaphysical libertarianism is more plausible than the common philosophical wisdom allows. My more positive thesis, what I will refer to as “Agent Exceptionalism,” is that, when making decisions and performing actions, human beings can indeed satisfy the four conditions of metaphysical libertarianism: the control condition, the rationality condition, the ultimacy condition, and the physicalism condition.

This Article falls into three general parts. The first part starts with an important question: is the insanity defense constitutionally required? The United States Supreme Court will finally try to answer this question next term in the case of Kahler v. Kansas. -/- I say “finally” because the Court refused to answer this question in 2012 when it denied certiorari to an appeal brought by John Joseph Delling, a severely mentally ill defendant who was sentenced to life in prison three (...) years earlier for two murders. Delling never had the opportunity to plead the insanity defense because his home state, Idaho, had abolished it in 1982. -/- By depriving Delling of the right to plead insanity, Idaho violated Delling’s Fourteenth Amendment right to due process and his Eighth Amendment right against “cruel and unusual” punishment. Naturally, the same is true for many other mentally ill and disabled defendants who have been prosecuted in Idaho and in the other three states that have abolished the insanity defense: Kansas, Montana, and Utah. -/- The second general part of this Article notes an insight that I stumbled upon in the course of researching the first part: the insanity defense and the mistake of law defense both require ignorance of the law, what I refer to as “normative ignorance.” Indeed, normative ignorance is what makes both of these defenses exculpatory in the first place. -/- Given this critical connection, there is a way for Idaho, Kansas, Montana, and Utah to resume compliance with the Constitution. Instead of reinstating the insanity defense per se, which might be politically unpopular, they should just broaden their mistake of law defense to include normative ignorance caused by cognitive incapacity that is itself caused by mental illness or disability. -/- Still, this Article is not merely directed at these four western states. It is directed at the other forty-six states as well. Because they already have an insanity defense, they need not incorporate it into their mistake of law defense. But in the third general part, I will argue that they should still expand their mistake of law defense to cover defendants who either lack a reasonable opportunity to learn the law or reasonably but mistakenly infer from widely accepted norms or ethics that their conduct is lawful. (shrink)

Sometimes neuroscientists discover distinct realizations for a single psychological property. In considering such cases, some philosophers have maintained that scientists will abandon the single multiply realized psychological property in favor of one or more uniquely realized psychological properties. In this paper, we build on the Dimensioned theory of realization and a companion theory of multiple realization to argue that this is not the case. Whether scientists postulate unique realizations or multiple realizations is not determined by the neuroscience alone, but by (...) the psychological theory under examination. Thus, one might say that, in the splitting or non-splitting of properties, psychology enjoys a kind of autonomy from neuroscience. (shrink)

The Pessimistic Induction over the history of science argues that because most past theories considered empirically successful in their time turn out to be not even approximately true, most present ones probably aren’t approximately true either. But why did past scientists accept those incorrect theories? Kyle Stanford’s ‘Problem of Unconceived Alternatives’ is one answer to that question: scientists are bad at exhausting the space of plausible hypotheses to explain the evidence available to them. Here, I offer another answer, which I (...) call the ‘Problem of Misleading Evidence.’ I argue that this proposal is, in important respects, superior to Stanford’s. (shrink)

The Blockage Argument is designed to improve upon Harry Frankfurt’s famous argument against the Principle of Alternative Possibilities by removing the counterfactual intervener altogether. If the argument worked, then it would prove in a way that Frankfurt’s argument does not that moral responsibility does not require any alternative possibilities whatsoever, not even the weakest “flicker of freedom”. -/- Some philosophers have rejected the Blockage Argument solely on the basis of their intuition that the inability to do otherwise is incompatible with (...) moral responsibility. I will argue, however, that it is not merely the inability to do otherwise by itself but rather the inability to do otherwise in combination with the absence of a counterfactual intervener that is incompatible with moral responsibility. If I cannot do otherwise and it is not because of a counterfactual intervener, then it must be the case that I am being forced to choose and therefore act as I do, in which case I cannot be morally responsible for this action. -/- Because the Blockage Argument fails, and because it was really the only way to establish that moral responsibility does not require any alternative possibilities whatsoever, it follows that moral responsibility does indeed require at least one alternative possibility in any given situation. But it turns out that this conclusion does not tip the balance in favor of incompatibilism over compatibilism. It would have if blockage and determinism were equivalent. But they are not. Unlike blockage, determinism is compatible with certain counterfactuals that compatibilists traditionally believed the ability to do otherwise reduces to. So even though moral responsibility is incompatible with blockage, it does not necessarily follow that moral responsibility is incompatible with determinism. (shrink)

In this paper we show that being blameworthy for not blaming and being blameworthy for victim blaming are structurally similar. Each involve the two traditional contours of moral responsibility: a knowledge condition and a control condition. But interestingly, in these cases knowledge and control are importantly interrelated. Being in a relationship with another person affords us varying degrees of knowledge about them. This knowledge in turn affords agents in relationships varying degrees of influence over one another. Cases where an agent (...) is especially blameworthy for failing to blame a friend, a close colleague, or a spouse highlight this. The interdependence of these two conditions in interpersonal relationships sheds (partial) light on why victim blaming is morally wrong. We argue that victim blamers suffer from a kind of moral myopia by only focusing on what the victim could do, in virtue of their being in a relationship of some sort with their abuser, to avoid abuse. We focus specifically on cases where such moral myopia is fueled by misogynistic and hierarchical gender schema and scripts. (shrink)

Prof. Cohen and I answer six questions: (1) Why do we lock people up? (2) How can involuntary civil commitment be reconciled with people's constitutional right to liberty? (3) Why don't we treat homicide as a public health threat? (4) What is the difference between legal and medical approaches to mental illness? (5) Why is mental illness required for involuntary commitment? (6) Where are we in our efforts to understand the causes of mental illness?

Consider the reaction of Trayvon Martin’s family to the jury verdict. They were devastated that George Zimmerman, the defendant, was found not guilty of manslaughter or murder. Whatever the merits of this outcome, what does the Martin family’s emotional reaction mean? What does it say about criminal punishment – especially the reasons why we punish? Why did the Martin family want to see George Zimmerman go to jail? And why were – and are – they so upset that he didn’t? (...) -/- This Article will argue for three points. First, what fuels this kind of outrage is vengeance: the desire to see defendants like George Zimmerman be forced to “pay” for the harms that they needlessly and culpably inflict on others. While this point may seem obvious, it isn’t. Most people repudiate revenge and therefore the notion that it plays any role in the criminal justice system. -/- Second, this attitude toward revenge is misguided and needs to change. We need to recognize that vengeance not only does but should play a significant role in motivating criminal punishment. Our vengeful reactions to harmful crimes are not ugly or shameful; on the contrary, they manifest a deep valuation of victims and a bitter denunciation of individuals who actively renounce this valuation through their criminal behavior. -/- Third, these two points have significant implications for the two main theories of criminal punishment: “retributivism,” which says that criminals should be punished in order to give them their “just deserts,” and “consequentialism,” which says that criminals should be punished in order to bring about such good consequences as deterrence, incapacitation, and rehabilitation. Traditionally, these two theories have been at war with one another. But I will show how recognizing revenge as a motivation and justification for punishment can help to end this war and bring these two theories together. (shrink)

In the progress of globalisation, the human being is exposed to effects of cultural dominance. For the individual, this exposure can be the stronger, the more autonomous his or her culture of origin used to be before the confrontation. Global consent with regard to behaviour patterns and cogni¬tive styles leads to the obliteration of traditional knowledge and behaviour upon which identity has been defined. The loss of identity in favour of belonging to the global society brings about a number of (...) problems, which can be demonstrated in functional models. These models, in turn, may sup¬port the planning of interventional strategies and rescue work. (shrink)

Imagine that you and a duplicate of yourself are lying unconscious, next to each other, about to undergo a complete step-by-step exchange of bits of your bodies. It certainly seems that at no stage in this exchange of bits will you have thereby switched places with your duplicate. Yet it also seems that the end-result, with all the bits exchanged, will be essentially that of the two of you having switched places. Where will you awaken? I claim that one and (...) the same person possesses both bodies, occupies both places and will experience both awakenings, just as a person whose brain has been bisected must at once experience both of the unconnected fields of awareness, even though each of these will falsely appear to him as the entirety of his experience. I also claim that the more usual apparent boundaries of persons are as illusory as those in brain bisection; personal identity remains unchanged through any variation or multiplication of body or mind. In all conscious life there is only one person - I - whose existence depends merely on the presence of a quality that is inherent in all experience - its quality of being mine, the simple immediacy of it for whatever is having experience. One powerful argument for this is statistical: on the ordinary view of personhood it is an incredible coincidence for you (though not for others) that out of 200,000,000 sperm cells the very one required on each occasion for your future existence was first to the egg in each of the begettings of yourself and all your ancestors. The only view that does not make your existence incredible, and that is not therefore (from your perspective) an incredible view, is that any conscious being would necessarily have been you anyway. It is a consequence that self-interest should extend to all conscious organisms. (shrink)

I critically examine Nietzsche’s argument in The Will to Power that all the detailed events of the world are repeating infinite times (on account of the merely finite possible arrangements of forces that constitute the world and the inevitability with which any arrangement of force must bring about its successors). Nietzsche celebrated this recurrence because of the power of belief in it to bring about a revaluation of values focused wholly on the value of one’s endlessly repeating life. Belief in (...) recurrence would bring joy to those who had achieved excellence in this life and crush those who had not. I point out, however, that this significance of recurrence must be spoiled by the consideration that within each of the long cycles of recurrence there would have to be, as well, countless variations of this life. And I consider the issue of personal identity within such recurrences. Is it the same person or merely resembling but distinct persons in the recurrences or the variations? If it is the same person in precise recurrences, should the subjectively identical experience be thought of as really additional for that person? (shrink)

Suppose one believes that the historical record of discarded scientific theories provides good evidence against scientific realism. Should one adopt Kyle Stanford’s specific version of this view, based on the Problem of Unconceived Alternatives? I present reasons for answering this question in the negative. In particular, Stanford’s challenge cannot use many of the prima facie strongest pieces of historical evidence against realism, namely: superseded theories whose successors were explicitly conceived, and superseded theories that were not the result of elimination-of-alternatives inferences. (...) Attempts to accommodate and within Stanford’s framework are incompatible with other commitments Stanford holds, such as anti-realism being piecemeal instead of global. As separate lines of criticism, I argue that there are problems with Stanford’s claim that the PUA is the most important challenge to realism, and with his view of instrumentalist theory endorsement. (shrink)

An epistemology of art has seemed problematic mainly because of arguments claiming that an essential element of a theory of knowledge, truth, has no place in aesthetic contexts. For, if it is objectively true that something is beautiful, it seems to follow that the predicate “is beautiful” expresses a property – a view asserted by Plato but denied by Hume and Kant. But then, if the belief that something is beautiful is not objectively true, we cannot be said to know (...) that something is beautiful and the path to an epistemology of art is effectively blocked. The article places the existence aesthetic properties in the proper context; presents a logically correct argument for the existence of such properties; identifies strategies for responding to this argument; explains why objections by Hume, Kant, and several other philosophers fail; and sketches a realization account of beauty influenced by Hogarth. (shrink)

Disclosure of true but reputation-damaging information is generally legal. But threats to disclose true but reputation-damaging information unless payment is made are generally criminal. Many scholars think that this situation is paradoxical because it seems to involve illegality mysteriously arising out of legality, a criminal act mysteriously arising out of an independently legal threat to disclose conjoined with an independently legal demand for money. -/- But this formulation is not quite right. The real paradox raised by the different legal statuses (...) of blackmail threats to disclose and disclosure itself involves a contradiction between our strong intuition that blackmail threats should be criminal and some equally strong arguments, all of which depend on the fact that disclosure is legal, that blackmail threats should be legal. So an adequate solution to the real Blackmail Paradox requires us either to drop the intuition or to refute the pro-legalization arguments. -/- This Article will adopt the latter approach. It will explain why the six main arguments for legalizing blackmail threats all fail. In the course of refuting one of these arguments, it will also offer a novel positive justification for criminalizing blackmail threats: they should be criminal for the same reason that menacing, harassment, and stalking are criminal--namely, because they involve the reasonable likelihood, and usually the intent, of putting the victim into a state of especially great fear and anxiety. -/- Of course, one might object that disclosure itself is likely to have the same effect, if not malicious purpose. Yet, again, it is still legal. But this point shows only that we as a society value freedom of speech more than we value freedom from infliction of emotional injury. It does not show that we do not value freedom from infliction of emotional injury sufficiently to protect it when competing moral or institutional interests such as freedom of speech are not at stake. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are (...) you guilty now? -/- Probably. You might argue that your scopophiliac ambition was impossible to satisfy given that you were peeping into a squash court, not a locker room. But this “Impossibility Defense” would fail because most jurisdictions follow the very influential Model Penal Code (MPC), which says that what is important about attempt is not the likelihood of success but rather what was going on in your head. You tried to peer into a locker room with the intention of seeing some nudity; that is enough for culpability. The fact that you were mistaken about the location does not exonerate you. -/- But now suppose that the particular jurisdiction you are in does not criminalize voyeurism. While most people think that voyeurism is just plain wrong, if not disgusting, the legislature just never got around to drafting a statute against it. Are you guilty now? The answer is no. But you might just be out of luck and convicted anyway. -/- The reason for this strange conclusion is that most jurisdictions have followed the Model Penal Code in yet another respect: along with the MPC’s “subjectivist” emphasis on what is in your head, they have followed the MPC’s lead in abolishing the Impossibility Defense entirely. As a result, people who believe that they are breaking laws when they really are not may still be subject to arrest, prosecution, and conviction respectively by police, prosecutors, and judges/juries merely if all three parties regard your conduct — especially your trying to violate a law that you mistakenly believed in — as morally reprehensible. The best, if not only, defense against this charge is the Impossibility Defense, but — again — most jurisdictions have decided to make this defense unavailable to defendants. -/- Depriving eligible defendants of the Impossibility Defense is unjust. It violates one of the most basic principles of criminal justice: the legality principle. The legality principle says that there cannot be just punishment without a crime, and there should not be a crime without an explicit law designating it as such. So you cannot be charged with, and convicted of, attempted voyeurism if voyeurism, reprehensible as it may be, was not explicitly prohibited at the time that you made the attempt. -/- If we believe in the legality principle, then we must restore the Impossibility Defense. Without the latter, too many defendants are being — and will continue to be — punished for attempts to perform acts that were not themselves illegal but which various parties in the criminal justice system (except the legislature) thought should be illegal based on their extralegal, moral prejudices. -/- In addition to the MPC, the principal obstacle to resurrecting the Impossibility Defense is a good deal of conceptual confusion that permeates relevant cases and scholarship. Too many courts and academics have conflated “factual impossibility” with “legal impossibility” and have fallaciously inferred “hybrid impossibility” from “hybrid mistakes” (that is, legal mistakes that derive from factual mistakes). One of the principal goals of this Article, then, is to clear up all of this confusion. I will explicate in the simplest possible terms (a) the difference between factual impossibility and legal impossibility, (b) why only legal impossibility qualifies as exculpatory, and (c) why hybrid impossibility simply does not exist. (shrink)

Analytic philosophers of religion typically take God to be ‘the personal omniGod’ – a person who is omnipotent, omniscient and omnibenevolent, and who creates and sustains all else that exists. Analytic philosophers also tend to assume that the personal omniGod is the God of ‘classical’ theism. Arguably, this is a mistake. To be consistent, a classical theist or her supporter must deny that God is literally a person. They need not, however, deny the aptness of using personal language, or of (...) thinking of God as a person or personal at the level of religious psychology. (shrink)

Since anonymous agents can spread misinformation with impunity, many people advocate for greater accountability for internet speech. This paper provides a veritistic argument that accountability mechanisms can cause significant epistemic problems for internet encyclopedias and social media communities. I show that accountability mechanisms can undermine both the dissemination of true beliefs and the detection of error. Drawing on social psychology and behavioral economics, I suggest alternative mechanisms for increasing the trustworthiness of internet communication.

En 2007, la Declaración sobre los Derechos de los Pueblos Indígenas fue adoptada por la Asamblea General con la mayoría de los estados miembros de las Naciones Unidas. La declaración tiene relevancia para cualquiera que esté al mando o en contacto con los pueblos indígenas. Un efecto central de la dominancia de la cultura globalizada sobre culturas indígenas es la asimetría de la percepción e influencia mutua. Debido a los efectos de la presión social externa de la globalización los pueblos (...) indígenas tienen poca libertad de elección. Ejercer su derecho a una autonomía cultural en educación y estilo de vida es muy difícil para los indígenas. Por parte de gobiernos, problemas con los derechos sobre la tierra son un obstáculo para reconocer la autonomía de los pueblos indígenas. Algunos artículos de la declaración de derechos indígenas son presentados que tienen relevancia para personas externas, como investigadores o turistas, en contacto con personas indígenas. -/- The Declaration on the Rights of Indigenous peoples is an instrument to combat inequalities on an international level. However, the implementation is still a matter of disregard and conflict, as states are reluctant to give up their privileges. Yet, with the Declaration, a foundation has been laid to claim acceptance and respect of indigenous lifestyles, the use of their territories by themselves, the passing-on of culturally specific knowledge to the next generations, and other aspects. The new situation of International Law also brought along consequences for any external person contacting an indigenous culture, be it scientists, tourists or others. (shrink)

Culture is a key resource for tourism. Any destabilisation of a local culture makes a destination less attractive for visitors. It is therefore in the interest of tour providers to protect and re-stabilise culture. There is great need for such efforts with regard to indigenous cultures, which are endangered worldwide. In this chapter, it is being elaborated why tourism needs to employ policies that ensure the maintenance of indigenous cultures. In their idiosyn-cratic physical appearance, which, in tropical areas, is often (...) unclothed, indigenous persons would have a slim chance to be acknowledged as citizens. This situation contrasts sharply with some basic claims of the global culture. (shrink)

This paper examines the Kalam Cosmological Argument, as expounded by,William Lane Craig, insofar as it pertains to the premise that it is metaphysically impossible for an infinite set of real entities to exist. Craig contends that this premise is justified because the application of the Cantorian theory to the real world generates counterintuitive absurdities. This paper shows that Craig’s contention fails because it is possible to apply Cantorian theory to the real world without thereby generating counterintuitive absurdities, provided one avoids (...) positing that an infinite set of real entities is technically a set within the meaning of such theory. Accordingly, this paper proposes an alternative version of the application of Cantorian theory to the real world thereby replacing the standard version of such application so thoroughly criticized by Craig. (shrink)

Experimental results on the Ellsberg paradox typically reveal behavior that is commonly interpreted as ambiguity aversion. The experiments reported in the current paper find the objective probabilities for drawing a red ball that make subjects indifferent between various risky and uncertain Ellsberg bets. They allow us to examine the predictive power of alternative principles of choice under uncertainty, including the objective maximin and Hurwicz criteria, the sure-thing principle, and the principle of insufficient reason. Contrary to our expectations, the principle of (...) insufficient reason performed substantially better than rival theories in our experiment, with ambiguity aversion appearing only as a secondary phenomenon. (shrink)

Peter Baumann uses the Monty Hall game to demonstrate that probabilities cannot be meaningfully applied to individual games. Baumann draws from this first conclusion a second: in a single game, it is not necessarily rational to switch from the door that I have initially chosen to the door that Monty Hall did not open. After challenging Baumann's particular arguments for these conclusions, I argue that there is a deeper problem with his position: it rests on the false assumption that what (...) justifies the switching strategy is its leading me to win a greater percentage of the time. In fact, what justifies the switching strategy is not any statistical result over the long run but rather the "causal structure" intrinsic to each individual game itself. Finally, I argue that an argument by Hilary Putnam will not help to save Baumann's second conclusion above. (shrink)

Many commentators on Alfred Tarski have, following Hartry Field, claimed that Tarski's truth-definition was motivated by physicalism—the doctrine that all facts, including semantic facts, must be reducible to physical facts. I claim, instead, that Tarski did not aim to reduce semantic facts to physical ones. Thus, Field's criticism that Tarski's truth-definition fails to fulfill physicalist ambitions does not reveal Tarski to be inconsistent, since Tarski's goal is not to vindicate physicalism. I argue that Tarski's only published remarks that speak approvingly (...) of physicalism were written in unusual circumstances: Tarski was likely attempting to appease an audience of physicalists that he viewed as hostile to his ideas. In later sections I develop positive accounts of: (1) Tarski's reduction of semantic concepts; (2) Tarski's motivation to develop formal semantics in the particular way he does; and (3) the role physicalism plays in Tarski's thought. (shrink)

I argue that Descartes' Second Causal Proof of God in the Third Meditation evidences, and commits him to, the belief that time is "strongly discontinuous" -- that is, that there is actually a gap between each consecutive moment of time. Much of my article attempts to reconcile this interpretation, the "received view," with Descartes' statements about time, space, and matter in his other writings, including his correspondence with various philosophers.

Language theorists have recently come to have an increasing appreciation for the fact that context contributes heavily in determining our interpretation of what is said. Indeed, it now seems clear that no complete understanding of a natural language is possible without some account of the way in which context affects our interpretation of discourse. In this paper, I will attempt to explore one facet of the language – context relationship, namely, the relation between conditionals and context. The first part of (...) the paper develops an account of truth for conditionals which allows them to depend on momentary features of the context in which they are uttered. In the second half of the paper, comparisons with other recent theories of the conditional will be considered. Particular attention will be given to the problem of whether the conditional really violates classical inferences such as Hypothetical Syllogism and Contraposition as has often been claimed in recent years. (shrink)

Many have tackled the question ‘What (if anything) is analytic philosophy?’ I will not attempt to answer this vexed question. Rather, I address a smaller, more manageable set of interrelated questions: first, when and how did people begin using the label ‘analytic philosophy’? Second, how did those who used this label understand it? Third, why did many philosophers we today classify as analytic initially resist being grouped together under the single category of ‘analytic philosophy’? Finally, for the first generation who (...) described themselves as analytic philosophers, what was their intended contrast class? Relatedly, when did ‘continental philosophy’ become the standard opposition? Some evidence I present justifies received answers to these questions; other evidence supports surprising and unorthodox answers to these questions. (shrink)

Some New Mechanists have proposed that claims of compositional relations are justified by combining the results of top-down and bottom-up interlevel interventions. But what do scientists do when they can perform, say, a cellular intervention, but not a subcellular detection? In such cases, paired interlevel interventions are unavailable. We propose that scientists use abduction and we illustrate its use through a case study of the ionic theory of resting and action potentials.

Confused terms appear to signify more than one entity. Carnap maintained that any putative name that is associated with more than one object in a relevant universe of discourse fails to be a genuine name. Although many philosophers have agreed with Carnap, they have not always agreed among themselves about the truth-values of atomic sentences containing such terms. Some hold that such atomic sentences are always false, and others claim they are always truth-valueless. Field maintained that confused terms can still (...) refer, albeit partially, and offered a supervaluational account of their semantic properties on which some atomic sentences with confused terms can be true. After outlining many of the most important theoretical considerations for and against various semantic theories for such terms, we report the results of a study designed to investigate which of these accounts best accords with the truth-value judgments of ordinary language users about sentences containing these terms. We found that naïve participants view confused names as capable of successfully referring to one or more objects. Thus, semantic theories that judge them to involve total reference failure do not comport well with patterns of ordinary usage. (shrink)

The underdetermination of theory by data obtains when, inescapably, evidence is insufficient to allow scientists to decide responsibly between rival theories. One response to would-be underdetermination is to deny that the rival theories are distinct theories at all, insisting instead that they are just different formulations of the same underlying theory; we call this the identical rivals response. An argument adapted from John Norton suggests that the response is presumptively always appropriate, while another from Larry Laudan and Jarrett Leplin suggests (...) that the response is never appropriate. Arguments from Einstein for the special and general theories of relativity may fruitfully be seen as instances of the identical rivals response; since Einstein’s arguments are generally accepted, the response is at least sometimes appropriate. But when is it appropriate? We attempt to steer a middle course between Norton’s view and that of Laudan and Leplin: the identical rivals response is appropriate when there is good reason for adopting a parsimonious ontology. Although in simple cases the identical rivals response need not involve any ontological difference between the theories, in actual scientific cases it typically requires treating apparent posits of the various theories as mere verbal ornaments or computational conveniences. Since these would-be posits are not now detectable, there is no perfectly reliable way to decide whether we should eliminate them or not. As such, there is no rule for deciding whether the identical rivals response is appropriate or not. Nevertheless, there are considerations that suggest for and against the response; we conclude by suggesting two of them. (shrink)

Strawson's view on punishment has been either neglected or recoiled from in contemporary scholarship on ‘Freedom and Resentment’ (FR). Strawson's alleged retributivism has made his view suspect and troublesome. In this article, we first argue, against the mainstream, that the punishment passage is an indispensable part of the main argument in FR (section 1) and elucidate in what sense Strawson can be called ‘a retributivist’ (section 2). We then elaborate our own hypothesis of symbolic retribution to explain the continuum between (...) moral reactive attitudes and punishment that Strawson only adumbrates (section 3). After this justification of the punitive response to wrongdoing, we compare and contrast our specific kind of retributivist hypothesis with other positions in the so-called ‘new retributivism’ (section 4). Our hypothesis differs from other subvarieties of expressive retributivism in putting centre stage the idea of punishment as taking up a reverential stance towards the victim. (shrink)

There is an ongoing debate on whether or to what degree computer simulations can be likened to experiments. Many philosophers are sceptical whether a strict separation between the two categories is possible and deny that the materiality of experiments makes a difference (Morrison 2009, Parker 2009, Winsberg 2010). Some also like to describe computer simulations as a “third way” between experimental and theoretical research (Rohrlich 1990, Axelrod 2003, Kueppers/Lenhard 2005). In this article I defend the view that computer simulations are (...) not experiments but that they are tools for evaluating the consequences of theories and theoretical assumptions. In order to do so the (alleged) similarities and differences between simulations and experiments are examined. It is found that three fundamental differences between simulations and experiments remain: 1) Only experiments can generate new empirical data. 2) Only Experiments can operate directly on the target system. 3) Experiments alone can be employed for testing fundamental hypotheses. As a consequence, experiments enjoy a distinct epistemic role in science that cannot completely be superseded by computer simulations. This finding in connection with a discussion of border cases such as hybrid methods that combine measurement with simulation shows that computer simulations can clearly be distinguished from empirical methods. It is important to understand that computer simulations are not experiments, because otherwise there is a danger of systematically underestimating the need for empirical validation of simulations. (shrink)

Definitions I presented in a previous article as part of a semantic approach in epistemology assumed that the concept of derivability from standard logic held across all mathematical and scientific disciplines. The present article argues that this assumption is not true for quantum mechanics (QM) by showing that concepts of validity applicable to proofs in mathematics and in classical mechanics are inapplicable to proofs in QM. Because semantic epistemology must include this important theory, revision is necessary. The one I propose (...) also extends semantic epistemology beyond the ‘hard’ sciences. The article ends by presenting and then refuting some responses QM theorists might make to my arguments. (shrink)

Mobile phones are part of a major growth industry in so-called Third World countries. As in other places, the use of this technology changes communication behaviour. The influence of these changes on indigenous social structures was investigated with a mixed-type questionnaire that targeted parameters such as: in-group vs. out-group communication, involvement with dominant industrial culture and the use of financial resources. Data was collected from indigenous representatives at the United Nations, as well as in Africa from subjects of various cultural (...) backgrounds, and from a control group in Berlin. The results reflect widespread use of mobile phones among indigenous persons, having a segregating effect within the indigenous community, but also enhancing ingroup communication and especially the use of the indigenous language. Mobile phones also facilitate moves from village to town, with the opportunity of frequently communicating with other in-group members. (shrink)

To investigate cultural lifestyle preferences in different cultural contexts, a forced-choice questionnaire was constructed, based on Thurstone's Law of Comparative Judgement, an almost forgotten statistical method of 1927, which is a useful tool for assessing groups. This study's questionnaire items targeted job and living conditions in the spectrum from traditional to globalised lifestyles. Subjects were indigenous representatives at the UNO in Geneva, and students in Nigeria, Cameroon, South Africa and Germany. The preferences ascertained reflect attitudes on a scale ranging from (...) very traditional to very globalised lifestyles. Although being an uncommon assessment tool, Thurstone's Comparative Judgement indicates to yield highly valid outcomes, as the results of the African university students, though from three different countries, resembled each other, but were complementary to the results of the indigenous representatives, which, in turn, mirrored the Berlin controls' profiles, according to expectations. Findings are discussed in light of the Symbolic Self-Completion Theory. (shrink)

Human beings define their identity primarily by the way they present, design and style their bodies. In doing so, individuals make statements about their affiliation to a social context. Globalisation implies a change of identity among the members of less industrialised cultures, as they are exposed to effects of cultural dominance. For the individual, this exposure can be the stronger, the more autonomous his or her culture of origin used to be before the confrontation. There is a bias of cultural (...) elements that are being transferred, so that the industrialised culture has a strong impact on other cultures. Global consent with regard to behaviour patterns, especially to bodily self-presentation and the related cognitive styles, leads to the obliteration of traditional knowledge, which is interwoven with the behaviour upon which identity had been defined previously. The cultural elements transferred are being used for the construction of globally standardised personal identities, whereat elements concerning the visual design of the human body are of major relevance for defining the self. The loss of variegated identities in favour of belonging to the global society brings about a number of problems, which can be demonstrated in functional models. These models, in turn, may support the planning of interventional strategies and rescue work. In this article, the role of the body within the destabilising effects of cultural change are analysed, and chances for intervention are discussed. (shrink)

In this paper Kant's "perpetual peace" is being interpreted as a realistic utopia. Kant's "perpetual peace" remains an utopia even today in the sense that the described perpetual world peace is still a long way to go from today's state of world politics. But Kant also tried to show that the utopian scenario is possible under realistic assumptions. Therefore this essay examines the question, if Kant's basic assumptions - such as for example the assumption that democracies are generally non aggressive (...) - are still valid in the light of the political experiences of the two centuries that have elapsed since the publication of the "perpetual peace" and how the realisation of Kant's utopia can best be promoted in today's situation. (shrink)

This article is a commentary on another article by Burkhard Stephan in "Erwägen Wissen Ethik" (16/2005 Issue 3). The question is examined, whether there exist analogies between (Darwinian) biological evolution cultural development processes. The topics discussed are: 1. Analogies to biological evolution on the cultural level. 2. Analogies to cultural processes on the biological level. 3. Features of the biological evolution of human nature that have direct consequences on the cultural level. 4. Ethical questions raised by the previous three points.

Hans Kelsens Critique of Eric Voegelins "New Science of Politics" has for a long time been very difficult to access, because Kelsen has published only parts of it in his life time and left other parts unpublished. This allowed Voegelin to spread the myth that Kelsen had refrained from publishing his criticism, because he had understood that he was wrong. This is nonsense. The reasons why Kelsen left part of his criticism unpublished are mostly accidental. At the same time Kelsens (...) criticism itself is a very sound rejection of Voegelin's hopelessly flawed theory of modernity as an age of Gnosticism. In this Nachwort to the Edition of Kelsen's Voegelin-criticism I summarize and comment the most important points of Kelsens criticism: 1. Kelsen's take on Voegelin's criticism of positivism. 2. Kelsen's rejection of Voegelin's "theory of representation" which is in fact a rejection of democratic representation in favor of an authoritarian and theocratic model of politics and 3. Kelsen's refuation of Voegelin's explanation of political disorder in the 20th century as a result of Gnostic heresy. My conclusion is that Kelen's criticism is successful (with only very minor qualifications) in all of these points and that thus it is an important contribution to the discussion of Voegelin's scholarship which has until recently been almost entirely apologetic. (shrink)

In order to protect indigenous cultures, their knowledge and their ways of living, it is necessary to analyse the mechanisms of cultural change, with a special focus on those factors that lead to the destabilisation, and even deletion, of formerly autonomous social systems. -/- Cultures consist of human beings, and the mechanisms and interactions within and between cultures consist of human behaviour. Generally, the mutual influences between cultures do not occur in a symmetrical way. Rather, one side is usually exposed (...) to effects of the cultural dominance, which the other side exercises upon it. Within the macrostructure of intercultural influences, cultural elements of indigenous cultures are deleted and replaced by the cultural elements of the dominant culture. In the progress of globalisation, consent among the participants with regard to behaviour patterns and cognitive styles leads to the obliteration of traditional knowledge and behaviour which until then had been characteristic for the respective cultural group. -/- Meanwhile, indigenous cultures are endangered worldwide, and the process of globalisation is determined predominantly by the industrial culture. The transfer of the dominant cultural elements does not only lead to the deletion of specific knowledge of indigenous cultures, but also of context-relevant behaviour patterns of those concerned, who then participate in the destruction of the environment with the further effects of erosion, loss of species, and climate change. Yet, a representation of those mechanisms in functional models helps to define effective methods of intervention. (shrink)

Scientific anti-realists who appeal to the pessimistic induction (PI) claim that the theoretical terms of past scientific theories often fail to refer to anything. But on standard views in philosophy of language, such reference failures prima facie lead to certain sentences being neither true nor false. Thus, if these standard views are correct, then the conclusion of the PI should be that significant chunks of current theories are truth-valueless. But that is semantic anti-realism about scientific discourse—a position most philosophers of (...) science, anti-realists included, consider anathema today. Therefore, proponents of the PI confront a dilemma: either accept semantic anti-realism or reject common semantic views. I examine strategies (with particular emphasis on supervaluations) for the PI proponent to either lessen the sting of this argument, or learn to live with it. 1 Introduction2 Designation Failure 2.1 Designation failure leads to truth-valueless sentences2.1.1 Direct reference theory2.1.2 Fregeanism2.1.3 Accounts of reference-fixing: why ‘phlogiston’ fails to designate 2.2 Objection: sentences exhibiting designation failure are false not truth-valueless 2.3 Avoiding truth-valuelessness via controversial semantic positions3 What to do? Closing the Gaps4 Conclusion. (shrink)