Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.

Despite the bad press that retributivism often receives, the basic assumptions on which this theory of punishment rests are generally regarded as being attractive and compelling. First of these is the assumption that persons are morally responsible agents and that social practices, such as criminal punishment, must acknowledge that fact. Additionally, retributivism is committed to the claim that punishment must be proportionate to the crime, and not determined by such utilitarian concerns as the welfare of society, or the hope of deterring other criminals.Jeffrie Murphy writes, “Even many people who do not like the name ‘retributivist’ are persuaded by considerations that are clearly retributive in nature. Suppose it was suggested that we punish negligent vehicular homicide with life imprisonment and first degree murder with a couple of years in jail, and suppose this suggestion was justified with the following utilitarian reason: Conduct of the first sort is much more common and dangerous than conduct of the latter sort (we are much more likely to be killed by a negligent driver than by someone who kills us with the primary object of killing us), and thus we should use the most severe deterrents against those who are genuinely dangerous. If we object to this suggestion, as most of us would want to, that this would be unjust or unfair because it would not be apportioning punishment to fault or desert, we should be making a retributive argument. Thus even if the label ‘retributivist’ repels most people, many of the actual doctrines of the theory do not.” Jeffrie Murphy, Retribution, Justice, And Therapy 230 (1979). Because the most commonly discussed version of retributivism is developed from Kant’s moral and legal theory, I will refer to it as Kantian Retributivism.This interpretation of Kant’s theory of punishment has been developed by Herbert Morris, Persons and Punishment, 52 Monist 475 (1968), and Murphy, supra note 1. Despite its appeal, Kantian Retributivism cannot provide a satisfactory response to a kind of case that is receiving increasingly serious consideration in philosophical literature. The case is this: Many crimes are committed by individuals profoundly disadvantaged by unjust social institutions, such as racism, classism, and/or sexism. If such individuals commit crimes, the retributivist is placed in a very difficult position: Either she must claim that the individual has willfully committed a crime and for that reason deserves punishment, seeming to ignore entirely the social background of the individual, or she can claim that the individual—in virtue of being disadvantaged by social injustices(s)—does not deserve punishment because such punishment would be unfair.Murphy comes to the conclusion that the punishment of such individuals is unfair and, therefore, unwarranted. See Jeffrie Murphy, Marxism and Retribution, in Murphy, supra note 1, at 93–114. I have argued elsewhere that neither strategy is tenable.See Jami L. Anderson, Reciprocity as a Justification for Retributivism, 16 Crim. Just. Ethics 13–25(1997).

In H.L.A. Hart’s now famous Postscript to The Concept of Law,H.L.A. Hart, THE CONCEPT OF LAW 185–86 (2nd ed., 1994). Hereinafter referred to as CL. he embraced the Incorporation Thesis, according to which it is possible for a legal system to have a rule of recognition that incorporates moral criteria of validity.Nevertheless, Hart had some reservations about the Incorporation Thesis. Hart, a skeptic about moral objectivism, believed that the Incorporation Thesis presupposes that moral norms have an objective status and hence conditioned his acceptance of the Incorporation Thesis on the truth of moral objectivism. See Kenneth Einar Himma, Incorporationism and the Objectivity of Moral Norms, 5 LEGAL THEORY 415 (1999), for a discussion of Hart’s worries on this count. In such legal systems, a norm must satisfy certain moral conditions as either a necessary or a sufficient condition for it to be legally valid. According to the Incorporation Thesis, then, the criteria of validity need not consist exclusively of standards that define validity in terms of a norm’s source or pedigree.

In this reply, I seek to summarize fairly the criticisms advanced by each of my four critics, Jonathan Schaffer, Gideon Yaffe, John Gardner, and Carolina Sartorio. That there is so little overlap either in the aspects of the book on which they focus or in the arguments they advance about those issues has forced me to reply to each of them separately. Schaffer focuses much of his criticisms on my view that absences cannot serve as causal relata and argues that this commits me to the view that double preventions (such as beheadings) cannot be causal of events such as deaths. I deny that double preventions such as beheadings are not causal, while admitting that other double preventions are not causal but denying that this latter conclusion is unwelcome in its implications. Yaffe criticizes my view that a person substantially causing some harm H is sufficient for that person having performed the activity of H-ing, whereas I affirm that causing H is sufficient for doing the action of H-ing even if it is not sufficient for intentionally H-ing (Yaffe's definition of “activity”). Gardner takes issue with my “experiential argument” for the relevance of causation to moral blame; he urges that we cannot infer that we are more guilty (when we cause a harm than when we don't) from either the psychological fact that we feel more guilty or from the moral fact that it is virtuous to feel such heightened guilt, because it is viciously circular: we feel such guilt only because we have already judged that we are more guilty, and it is virtuous to feel such guilt only because we in fact are more guilty. I deny such circularity exists. Sartorio takes issue with my thesis that in omissive overdetermination cases (where each omission is sufficient to fail to prevent some harm, meaning neither is necessary) neither omitter is morally responsible for the harm. I trade intuitions with Sartorio about a range of related cases that we each think bears on the issue.

This article explores the necessary and jointly sufficient conditions for the recognition of a ground of unlawful discrimination. It is important not only to have a coherent understanding of the currently enumerated grounds, but also to have a theoretical framework that can assist in enumerating new grounds through the open-ended “other status” aspect of many legal frameworks. To that end, this article argues that personal characteristics that are generally morally irrelevant, and that are socially salient in that they carry with them a prevalence of inequality-laden attitudes, amount to necessary and jointly sufficient conditions for recognizing a ground of unlawful discrimination. Other conditions, such as immutability and the presence of relative group disadvantage, will be assessed and dismissed as contingent but not necessary conditions.

Every theory of justice requires a first-order theory specifying principles of justice, and a second-order view explaining why those principles constitute the correct principles of justice. According to John Rawls, political liberalism is committed to the two principles of justice specified in its first-order theory, “justice as fairness.” Justice as fairness, according to Rawls, in turn presupposes the second-order view that justice is a political conception. A political conception of justice treats the principles derived from the fundamental ideas in the public political culture as the correct principles of justice. Political liberalism, however, nowhere offers a defense of the view that justice is a political conception. Indeed, it even strives to avoid the admission that it presupposes that justice is a political conception by stating only that it uses a political conception of justice, while allowing that justice might not actually be a political conception. As to the truth of its second-order presupposition, political liberalism chooses to remain agnostic. Rawls claims that political liberalism has no choice at all. To do otherwise, he argues, would lead to an internal contradiction.

I. INTRODUCTION

The notion that the current descendants of slaves are owed compensation for slavery is one that receives widespread discussion and support. For example, in 1989, Representative John Conyers of Michigan proposed legislation that would create a commission to explore the effects of slavery on both African-Americans and the United States. More recently, Randall Robinson, in The Debt: What America Owes to Blacks, argued that an important step toward healing racial division and helping poor African-Americans is to compensate blacks for slavery.Randall Robinson, THE DEBT: WHAT AMERICA OWESTO BLACKS (2001). Also, a well-known group of civil-rights and class-action attorneys, including Harvard law professor Charles Ogletree and Johnnie Cochran, is putting together a lawsuit seeking reparations for the descendants of slaves.Reparations for Slavery, 1 (CBS News television broadcast, 2000), available from www.cbsnews. com/stories/2000/11/04/national/main246998.shtml. The debt on some estimates involves trillions of dollars.Larry Neal and James Marketti estimate that the value of unpaid income to slaves amounts to $1.4 trillion and $3.4 trillion respectively. Dinesh D’Souza, THE ENDOF RACISM 69 n.18 (1995) citing Richard F. America, ed., THE WEALTHOF RACES: THE PRESENT VALUEOF BENEFITSFROM PAST INJUSTICES (1990). In this paper, I argue that the descendants of slaves were not harmed by slavery since they owe their existence to slavery. I then recognize that they may have a claim to compensation based on their having inherited their ancestors’ (i.e., the slaves’) claim to compensation. I argue that the inheritance-based claim is defeated by a number of concerns, particularly doubt surrounding the existence and amount of this inheritance-based claim, concerns about offsets (sums that must be subtracted from compensation), and problems concerning the identity of any contemporary public or private entity that owes compensation. Note that in this essay I will not discuss harms that were not the result of enslavement and hence I set aside some of the claims put forth on behalf of current African-Americans.

This article engages with Jaffey's recent contribution on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of nonhuman conditions. The proposed approach also recognizes a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realization of risk.

Christopher Wellman is the strongest proponent of the natural-duty theory of political obligations and argues that his version of the theory can satisfy the key requirement of “particularity”; namely, justifying to members of a state the system of political obligations they share in. Critics argue that natural-duty theories like Wellman's actually require well-ordered states and/or their members to dedicate resources to providing the goods associated with political order to needy outsiders. The implication is that natural-duty approaches weaken the particularity requirement and cannot justify to citizens the systems of political obligation they share in. I argue that the critics’ diagnosis of natural-duty approaches is correct, whereas the proposed implication is false. I maintain that 1) only natural-duty approaches can justify political obligations, and that 2) weakening the particularity requirement contributes to the theory's ability to justify a range-limited system of political obligations among compatriots.

“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law.

In Michael Moore's important book Causation and Responsibility, he holds that causal contribution matters to responsibility independently of its relevance to action. We are responsible for our actions, according to Moore, because where there is action, we typically also find the kind of causal contribution that is crucial for responsibility. But it is causation, and not action, that bears the normative weight. This paper assesses this claim and argues that Moore's reasons for it are unconvincing. It is suggested that sometimes a person's responsibility for that to which he causally contributes depends on his recognition of an identity between himself and the protagonist of the event for which he is held responsible. Since this fact about identity is not captured by causal contribution, action matters to responsibility for reasons that are not exhausted by the fact that action involves causal contribution. The relevance of this idea for accomplice liability is also briefly discussed.

I.

Often, I have a reason to φ and derived from it I have a reason to try to φ. But not always. A reason for me to try to φ derives from a reason for me to φ only if my trying to φ will contribute to my φing. In cases of two distinct types my trying to φ does not pass this test. In cases of the first type, I lack the ability to φ at all, so nothing that I do (including but not limited to my trying to φ) will contribute to my φing. I will never sing like Ella Fitzgerald whatever I do, so there’s nothing to be gained by trying. In cases of the second type, I have the ability to φ but lack the ability to φ-by-trying-to: trying to φ is counterproductive; it would be better, from the point of view of my φing, if I aimed at something else instead, possibly even at −φing. Trying to impress people, or trying to be funny, or trying to make oneself popular may all have the opposite effect. The funniest thing, indeed, is sometimes trying to be serious in the face of absurdity. On such an occasion a reason to be funny yields no reason to try to be funny, but it does yield a reason to try not to be funny.

David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticized by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy's risk–liability theory and that such an approach is a promising means both for understanding the moral basis of liability for negligence and for reasoning about possible reforms of the institution of negligence law.

In “Professional Detachment: The Executioner of Paris,” I concluded with the cheap and some would say libelous suggestion that lawyers might accurately be described as serial liars, because they repeatedly try to induce others to believe in the truth of propositions or in the validity of arguments that they believe to be false. Good lawyers have responded with some indignation that, in calling zealous advocacy “lying,” I have misdescribed the practice of law. I wish to explain why I believe that it is the practice of lawyering that engages in misdescription.

This article argues that there is a fundamental tension between Joel Feinberg's theory of the nature of rights and his account of what types of beings are potential right-holders. In explaining this tension, I argue that Feinberg actually adopts two competing concepts of rights. Clearly, Feinberg must choose between these two theories, but I suggest that both are attractive and that neither view can be selected as either “correct” or “incorrect” on the grounds of either logical consistency or even straightforward conceptual analysis. In the end, one's preference between these two concepts of rights depends upon competing values, values about which reasonable people can disagree.

In this essay, I argue that absent special circumstances, there are no moral, judicial procedural rights. I divide this essay into four main sections. First, I argue that there is no general moral right against double jeopardy. Next, I explain why punishing a criminal without first establishing her guilt via a fair trial does not necessarily violate her rights. In the third section, I respond to a number of possible objections. And finally, I consider the implications of my arguments for the human right to due process.

How much must we sacrifice in order to stop strangers from suffering serious losses, and does distance from them alter our obligations? When may we harm some people to help others? How can we best reason about these issues? These are three general questions—the first two are substantive ones, the third a methodological one—that Peter Unger discusses in his book Living High and Letting Die (hereinafter LHLD) and that I discuss in this article.1

According to the influential “expressive” argument for hate speech laws, legal restrictions on hate speech are justified, in significant part, because they powerfully express opposition to hate speech. Yet the expressive argument faces a challenge: why couldn't we communicate opposition to hate speech via counterspeech, rather than bans? I argue that the expressive argument cannot address this challenge satisfactorily. Specifically, I examine three considerations that purport to explain bans’ expressive distinctiveness: considerations of strength; considerations of directness; and considerations of complicity. These considerations either fail to establish that bans are expressively superior to counterspeech, or presuppose that bans successfully deter hate speech. This result severely undercuts the expressive argument's appeal. First, contrary to what its proponents suggest, this argument fails to circumvent the protracted empirical controversies surrounding bans’ effectiveness as deterrents. Second, the expressive argument appears redundant, because bans are expressively distinctive only insofar as hate speech is already suppressed.

This essay consolidates some fragments of the contemporary theory of expressive freedoms, bringing together scattered conceptual distinctions (e.g., hurting and harming, tolerating and legitimating) and moves (e.g., the need to rectify hateful speech and to constrain harmful actions legally) into an account that is sensitive to the needs of abused groups but faithful to the libertarian tradition associated with Mill's harm principle. Accepting this principle as the fundamental condition warranting legal control of action, we explore legislative responsibilities for protecting expressive freedoms through three additional presumptions. The chief of them is an expectation of epistemic rationality that limits occasions of harm requiring legal action. A presumption of enablement over punishment shows that criminal sanctions for hateful speech are almost never appropriate. A presumption of multiple responsibilities accepts that social sanctions may be appropriate where political coercion is not.

The right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, this article considers the “equal-weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal-weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This implies, this article concludes, that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This article further concludes, however, that jurors should not always be instructed to apply the equal-weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This article argues that while the equal-weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because it would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality.