In this article, I offer an account of what one of the short-term political aims of proponents of greater equality ought to be. I claim that the strengthening of reflective capacity—citizens’ ability to impose a temporary level of distance from their commitments, to consider alternatives to them, and to evaluate their origins and validity—ought to be one key aim of egalitarian politics under present political conditions. I then propose activist-led education programs as one desirable means to deliver this end of (...) strengthened reflective capacity. Where activist-led education provides plentiful informational resources and opportunities to practice deploying one’s reflective capacity, and also emphasizes and encourages intellectual humility, it seems well placed to help bring about this aim. Activist-led education programs are commonly subject to what I term the indoctrination worry, but I try to show that there are not good grounds for concluding in advance of further study that the delicate balancing of ends that permissible activist-led education requires is either categorically unachievable, or avoidable in the way these objectors often press. The argument thus provides presumptive grounds for considering the proliferation of suitably organized activist-led education programs an important component of a broader strategy of egalitarian social change. (shrink)

Gregory Kavka's 'Toxin Puzzle' suggests that I cannot intend to perform a counter-preferential action A even if I have a strong self-interested reason to form this intention. The 'Rationalist Solution,' however, suggests that I can form this intention. For even though it is counter-preferential, A-ing is actually rational given that the intention behind it is rational. Two arguments are offered for this proposition that the rationality of the intention to A transfers to A-ing itself: the 'Self-Promise Argument' and David Gauthier's (...) 'Rational Self-Interest Argument.' But both arguments – and therefore the Rationalist Solution – fail. The Self-Promise Argument fails because my intention to A does not constitute a promise to myself that I am obligated to honor. And Gauthier's Rational Self-Interest Argument fails to rule out the possibility of rational irrationality. (shrink)

Many philosophers accept with certainty that we are morally responsible but take it to be an open question whether determinism holds. They treat determinism as epistemically compatible with responsibility. Should one who accepts this form of epistemic compatibilism also hold that determinism is metaphysically compatible with responsibility—that it is metaphysically possible for determinism and responsibility to coexist? John Martin Fischer gives two arguments that appear to favor an affirmative answer to this question. He argues that accounts of responsibility, such as (...) his, that are neutral with respect to whether responsible actions are determined have a "resiliency" that counts in their favor. Furthermore, he criticizes libertarians who argue on a priori grounds that determinism cannot coexist with responsibility and who admit that they would retract their argument if determinism were shown to hold; this "metaphysical flip-flopping" is said to render their positions implausible. I assess the merits of these arguments. (shrink)

Recent debates about the most appropriate political agents for realising social justice have largely focused on the potential value of national political parties on the one hand, and trade unions on the other. Drawing on the thought of Murray Bookchin, this article suggests that democratic municipalist agents – democratic associations of local residents that build and empower neighbourhood assemblies and improve the municipal provision of basic goods and services – can often also make valuable contributions to projects of just social (...) change. I identify a long-term and a more short-term argument for the value of democratic municipalist agency in Bookchin's thought and claim that the latter provides a compelling case for the valuable contributions this form of action can make to the achievement of a wide variety of visions of social justice. This provides a useful partial corrective to recent political theorising about the nature of the partisanship and trade unionism necessary to secure social justice. (shrink)

ABSTRACT This paper explores the role of aesthetic judgements in mathematics by focussing on the relationship between the epistemic and aesthetic criteria employed in such judgements, and on the nature of the psychological experiences underpinning them. I claim that aesthetic judgements in mathematics are plausibly understood as expressions of what I will call ‘aesthetic-epistemic feelings’ that serve a genuine cognitive and epistemic function. I will then propose a naturalistic account of these feelings in terms of sub-personal processes of representing and (...) assessing the relation between cognitive processes and certain properties of the stimuli at which they are directed. (shrink)

Suppose we wish to decide which of a pair of actions has better consequences in a case in which both actions result in infinite utility. Peter Vallentyne and others have proposed that one action has better consequences than a second if there is a time after which the cumulative utility of the first action always outstrips the cumulative utility of the second. I argue against this principle, in particular I show how cases may arise in which up to any point (...) of time action a1 produces more utility than action a2, yet for each individual involved a2 produces more utility. (shrink)

This essay reframes salient issues in discussions of free will using conceptual apparatus developed in the works of Saul Kripke, with particular attention paid to his little-discussed technical notion of a prejudice. I begin by focusing on how various forms of modality (metaphysical, epistemic, and conceptual) underlie alternate forms of compatibilism and discuss why it is important to avoid conflating these forms of compatibilism. The concept of a prejudice is then introduced. We consider the semantic role of prejudices, in particular (...) conditions in which prejudices turn out to express metaphysically necessary truths. With that as background, I discuss a set of prejudices involving the notion of choice. We consider the role these prejudices might play, should they turn out to be true, in determining the answer to various compatibility questions concerning the nature of moral responsibility and choice. (shrink)

I EXPLORE ONE WAY IN WHICH THE THEORY OF RELATIVE IDENTITY (DEVELOPED ALONG LINES SUGGESTED BY GEACH’S WRITINGS) CAN BE USED TO UNDERSTAND THE WAY LANGUAGE FUNCTIONS IN TRINITARIAN DOCTRINE. THIS INCLUDES A DISCUSSION OF REDUPLICATIVE PROPOSITIONS.

I will argue that the Kane-Widerker objection to Frankfurt examples is much weaker than is generally recognized. The Kane-Widerker objection holds that proponents of Frankfurt examples beg the question against incompatibilist accounts of free and responsible action by constructing examples that tacitly assume a compatibilist account of moral responsibility; that is, they assume that one can have non-derivative responsibility for choices that were not undetermined prior to their occurrence. The notion of an event, E, being ‘undetermined prior to its occurrence’ (...) is ambiguous. It can mean either (1) with respect to each time t prior to E’s occurrence, it is not the case that at t E’s occurrence is determined to take place, or it can mean (2) with respect to the whole collection of times prior to E’s occurrence, E’s occurrence is not determined to take place. Kane’s argument shows that (under certain constraints) if a choice is to be undetermined (in the second sense) prior to its occurrence, then a prior-sign Frankfurt example cannot be successful. But he fails to show that prior-sign Frankfurt examples cannot be constructed in which the choice is undetermined (in the first sense) prior to its occurrence, and he would need to do so in order to sustain his charge that those using Frankfurt examples beg the question against traditional incompatibilist accounts of responsibility. Widerker’s argument avoids the above problem, but at the cost of only applying to a rather restricted set of Frankfurt examples. (shrink)

This paper addresses the so-called paradox of fiction, the problem of explaining how we can have emotional responses towards fiction. I claim that no account has yet provided an adequate explanation of how we can respond with genuine emotions when we know that the objects of our responses are fictional. I argue that we should understand the role played by the imagination in our engagement with fiction as functionally equivalent to that which it plays under the guise of acceptance in (...) practical reasoning, suggesting that the same underlying cognitive-affective mechanisms are involved in both activities. As such, our imaginative engagement with fiction un-problematically arouses emotions, but only to the extent that we are not occurrently attending to our epistemic relation to the fiction i.e. fully attending to the fact that the object of our response is merely fictional. In order to illuminate this idea I examine a recent proposal that the phenomenology of attention is partially non-attributive, and I argue that emotional phenomenology too shares this characteristic. (shrink)

There is a conception of hell that holds that God punishes some people in a way that brings about endless suffering and unhappiness. An objection to this view holds that such punishment could not be just since it punishes finite sins with infinite suffering. In answer to this objection, it is shown that endless suffering, even intense suffering, is consistent with the suffering being finite. Another objection holds that such punishment is contrary to God's love. A possible response to this (...) objection is developed. (shrink)

In this paper I wish to defend a particular form of the traditional, and now almost wholly unfashionable, notion of an aesthetic attitude.

Contemporary accounts of the Trinity and Incarnation sometimes employ aspects of Peter Geach's theory of relative identity. Geach's theory provides an account not merely of identity predicates, but also proper names and restricted quantification. In a previous work I developed an account of the doctrines of the Trinity and Incarnation incorporating these three aspects of Geach's theory and tried to show how each might contribute to our understanding of the doctrines. Joseph Jedwab has recently argued that my account—or any that (...) employs Geach's treatment of restricted quantifiers—leads to serious doctrinal errors. I reply to his criticisms. (shrink)

Frankfurt examples are frequently used in arguments designed to show that agents lacking alternatives, or lacking ‘regulative control’ over their actions, can be morally responsible for what they do. I will maintain that Frankfurt examples can be constructed that undermine those very arguments when applied to actions for which the agent bears fundamental responsibility.

It is well known that the following features hold of AR + T under the strong Kleene scheme, regardless of the way the language is Gödel numbered: 1. There exist sentences that are neither paradoxical nor grounded. 2. There are 2ℵ0 fixed points. 3. In the minimal fixed point the weakly definable sets (i.e., sets definable as {n∣ A(n) is true in the minimal fixed point where A(x) is a formula of AR + T) are precisely the Π1 1 sets. (...) 4. In the minimal fixed point the totally defined sets (sets weakly defined by formulae all of whose instances are true or false) are precisely the ▵1 1 sets. 5. The closure ordinal for Kripke's construction of the minimal fixed point is ωCK 1. In contrast, we show that under the weak Kleene scheme, depending on the way the Gödel numbering is chosen: 1. There may or may not exist nonparadoxical, ungrounded sentences. 2. The number of fixed points may be any positive finite number, ℵ0, or 2ℵ0 . 3. In the minimal fixed point, the sets that are weakly definable may range from a subclass of the sets 1-1 reducible to the truth set of AR to the Π1 1 sets, including intermediate cases. 4. Similarly, the totally definable sets in the minimal fixed point range from precisely the arithmetical sets up to precisely the ▵1 1 sets. 5. The closure ordinal for the construction of the minimal fixed point may be ω, ωCK 1, or any successor limit ordinal in between. In addition we suggest how one may supplement AR + T with a function symbol interpreted by a certain primitive recursive function so that, irrespective of the choice of the Godel numbering, the resulting language based on the weak Kleene scheme has the five features noted above for the strong Kleene language. (shrink)

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)

Abstract: In the Philebus, Socrates constructs a dialectical argument in which he purports to explain to Protarchus why the pleasure that spectators feel when watching comedy is a mixture of pleasure and pain. To do this he brings in phthonos (malice or envy) as his prime example (47d-50e). I examine the argument and claim that Socrates implicitly challenges Protarchus’ beliefs about himself as moderate and self-knowing. I discuss two reasons to think that more is at stake in the argument than (...) the mixed pleasure and pain of comic malice. (shrink)

Frankfurt style examples (FSEs) have played an important role in the development of metaphysical accounts of moral agency. The legitimacy of this approach often requires that FSEs be metaphysically possible. I argue that, given our current knowledge of the nature of decision-making, we have no grounds to accept the metaphysical possibility of many standard FSEs involving a device that can be triggered to bring about a predetermined decision.

According to the free-will defence, the exercise of free will by creatures is of such value that God is willing to allow the existence of evil which comes from the misuse of free will. A well-known objection holds that the exercise of free will is compatible with determinism and thus, if God exists, God could have predetermined exactly how the will would be exercised; God could even have predetermined that free will would be exercised sinlessly. Thus, it is held, the (...) free-will defence cannot be used as a partial account of why God should have allowed evil to exist. I investigate this objection using Kripke's apparatus for treating modalities and natural kinds to explore the nature of the incompatibilism required by the free-will defence. I show why the objection fails even if the standard arguments for compatibilism are acceptable. This is because the modality involved in the incompatibilism needed by the free-will defence differs from the modality involved in the compatibilism that is supported by standard compatibilist arguments. Finally, an argument is sketched for a variety of incompatibilism of the kind needed by the free-will defence. (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)

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.

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)

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)

Classical utilitarianism attempts to reduce the moral significance of the individual to something more basic: the value of the individual is seen as fully grounded in considerations of utility maximization. This paper criticizes this aspect of utilitarianism and tries to do so through an appeal to considerations that would be acceptable to one who embraces utilitarianism. First, an example is developed in which (1) a pair of mutually exclusive actions each yield infinite utility; (2) neither action can be said to (...) yield more utility than the other, and (3) one of the actions is clearly preferable. This provides a case in which the moral significance of the individual cannot be fully reduced to considerations of utility maximizing features of the action. A second example, developed along the lines of the first example, involves only finite utilities. (shrink)

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)

P. T. Geach has argued that it is impossible to demonstrate that the doctrine of the Trinity is consistent. I try to show why -- on a common understanding of the notion of consistency -- his reasoning is flawed and why, on Geach’s own principles, one should expect that if the doctrine of the Trinity is true then it will be possible to prove that the doctrine is consistent, and it will be possible to do this in a way that (...) makes no appeal to the truth of any religious doctrine. (shrink)

A language in which we can express arithmetic and which contains its own satisfaction predicate (in the style of Kripke's theory of truth) can be formulated using just two nonlogical primitives: (the successor function) and Sat (a satisfaction predicate).

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)

The notion of computability is developed through the study of the behavior of a set of languages interpreted over the natural numbers which contain their own fully defined satisfaction predicate and whose only other vocabulary is limited to "0", individual variables, the successor function, the identity relation and operators for disjunction, conjunction, and existential quantification.

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 paper draws on Maurice Merleau-Ponty’s philosophy to sketch a phenomenological interpretation of the enactivist notion of sensorimotor understanding. I begin by situating Noë’s enactive theory of vision in relation to Husserlian phenomenology. I then raise three related objections to Noë’s treatment of sensorimotor understanding in terms of practical knowledge of possibilities for action. Finally, I appeal to Phenomenology of Perception to show how two of its major operative concepts – the ‘body schema’ and ‘sedimentation’ – can help to plug (...) the gaps in Noë’s account. (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.

In his paper "Why a Class Can't Change Its Members," Richard Sharvy appears to establish the impossibility of the existence of a variable class—that is, a class that at one time has a member that is not a member of it at another time. I first indicate the importance of Sharvy's argument for our understanding of the concept of identity in the contexts of time and modality, and I summarize his argument. Sharvy says that a class C that has one (...) (non-variable) group of members at t2 and another (nonvariable) group of members at t2 would be identical with both the class C1 that always has the first group as members and the class C2 that always has the second group as members. This is an impossibility, since in general, one thing cannot be identical with two.I then criticize Sharvy's argument by pointing out a weakness in the defense of the claim that C = C1 and C = C2. This weakness is due to an ambiguity in Sharvy's Principle of Extensionality. (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)

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.

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)

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)

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)

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)

Libertarians like Robert Kane believe that indeterminism is necessaryfor free will. They think this in part because they hold both (1) thatmy being the ultimate cause of at least part of myself is necessary forfree will and (2) that indeterminism is necessary for this ``ultimateself-causation''. But seductive and intuitive as this ``USCLibertarianism'' may sound, it is untenable. In the end, nometaphysically coherent (not to mention empirically valid) conception ofultimate self-causation is available. So the basic intuition motivatingthe USC Libertarian is ultimately (...) impossible to fulfill. (shrink)