My purpose in this essay is to give an account of the kind of robust social criticism that I associate with the very enterprise of theory and to explain why the liberal philosophy that prevails in the contemporary academy is averse to this sort of social criticism. My purpose, then, is both to explore a certain conception of radical socialtheory and to defend this conception against familiar objections posed by those who represent the dominant liberal political philosophy.

Bioethics as a field began some years before it was finally named in the early 1970s. In many ways, bioethics originated in response to urgent matters of the moment, including the controversy over disconnecting Karen Quinlan's respirator, the egregious paternalism of Donald Cowart's doctors in the famous “Dax” case, the abuse of research subjects in the notorious Tuskegee Syphilis Study, and the need to devise an intellectual framework for the development of federal regulations to protect human subjects of research. The phrase “new and unprecedented” became a common description of the topics and issues to which people who later came to be called “bioethicists” responded. It should come as no surprise that bioethics and its practitioners soon came to the self-understanding that their work was new and unprecedented, much as the innovations of biomedical science and their clinical applications were thought to be.

One of the main targets of Progressive constitutional critique was the system of separation of powers. Woodrow Wilson was especially critical of that feature of American constitutionalism. As has been noted by others, Wilson wanted to replace the separation of powers with the conceptual and institutional distinction between politics and administration. Wilson, however, had an extremely truncated and on the whole inaccurate view of the point and intended operation of separation of powers, as an examination of the doctrine in the philosophy of John Locke demonstrates.

Freedom of association holds an uneasy place in the pantheon of liberal freedoms. Whereas freedom of association and the abundant plurality of groups that accompany it have been embraced by modern and contemporary liberals, this was not always the case. Unlike more canonical freedoms of speech, press, property, petition, assembly, and religious conscience, the freedom of association was rarely extolled by classical liberal thinkers in the seventeenth and eighteenth centuries. Indeed Thomas Hobbes, David Hume, Adam Smith, and others seem to have regarded freedom of association with some trepidation because of the violent, irrational, and factional behavior of groups. This chapter illuminates these anti-associational assumptions in the writings of James Madison. Although Madison famously deplored political associations as sources of faction and civil dissension, he differed from other members of the Founding generation in his willingness to defend associational freedom. Madison's writings also shed light on the unenumerated status of the freedom of association in American constitutional law.

A more provocative subject than “lying in politics” is difficult to imagine. Everybody, from the proverbial “Joe Sixpack” to ivory-tower philosophers, can wax eloquently on the subject, if only because easy-to-find, shocking (and occasionally sexually “juicy”) examples abound. If moral outrage were judged an essential vitamin, then condemning dishonesty undoubtedly guarantees a daily megadose. Unfortunately, at least for those who crave self-indulgent outrage, the anti-lying case is less than 100 percent compelling. It is a quagmire of the first order, if only because those who cherish frankness also usually confess to lying. Hannah Arendt once suggested that lies are a necessary and justifiable tool of the statesman's trade. Formulating damnation criteria invites mind-boggling paradoxes, and strident defenders of truth-telling, with scant exception, admit that falsehoods are “sometimes” permitted for “good” reasons. And what might be these “good reasons”? Who can say for sure? Centuries of erudite scholarship on this point might be encapsulated as “Lying to me is bad, but I can consent to deceiving others for noble purposes, as artfully decided by myself.”

Lenin asked the question: what is to be done? A second question, which Lenin did not ask is: What is not to be done? A third question arises when answering the first and second yields incompatible directives. How are we to understand and respond to such situations, in which, as Machiavelli put it, the Prince must learn, “among so many who are not good,” how “to enter evil when necessity commands” for the good of the Republic? This is the Classical Problem of dirty hands. What, if anything, does Marxism have to say about it?

Suppose the prevailing distribution of property rights is unjust as determined by the relevant conception of distributive justice. You have far more than you should have under that theory and I have far less. Then I defraud you and in doing so reallocate resources so that our holdings ex post more closely approximate what distributive justice requires. Do I have a duty to return the property to you?

There are many good reasons for requiring me to return to you what I have taken. One is that while you may have no right in justice to all that you own, it does not follow that I do, or that I have a right to take it. Thus, requiring me to return the property to you is a way of recognizing that I had no right to take it from you in the first place.

Western visitors to those parts of the world that before 1991 were politically organized as the Soviet Union have been impressed by the attitudes of persons toward behavior in ordinary exchanges, attitudes that seem to be so different from those in Western economies. The essential elements of an “exchange culture” seem to be missing, and this absence, in itself, may be central to the effective functioning of market economies. Individual participants in ordinary exchange relationships in Western economies act as if they understand the simplest of all economic principles, namely, that there are mutual gains from trade, that the benefits are reciprocal, that exchange is a positive-sum game. This “as if” understanding, which remains perhaps below our level of consciousness in the West, is largely missing from the public attitudes of citizens of the former Soviet Union, who behave as if the gains from trade do not exist, or at least are one-sided rather than mutual.

It is often claimed that libertarianism offers an unattractive conception of free will and moral responsibility because it renders free agency inexplicable and irrational. This essay aims, first, to show that the soundness of these objections turns on more basic disagreements concerning the ideals of free agency and, second, to develop and motivate a truly libertarian conception of the ideals of free agency. The central contention of the essay is that the heart of libertarians’ ideal of free agency is the ideal of agential fundamentality.

Lockeans regard taxation as a—perhaps sometimes permissible—infringement of moral property entitlements. This essay discusses whether, or in what form, this charge is defensible. In doing so, it will explore the truth and the limits of the conventionalist reply of Murphy and Nagel to Lockean challenges to taxation. It argues that there is a moral rationale for property conventions that is independent of the question whether and how one can acquire natural, pre-conventional property rights in the state of nature, that this rationale sets a moral standard for how good property conventions are and whether they are justifiable at all, and that once property conventions are in place, people’s moral property entitlements are at least partly determined by these conventions, sometimes even by unjustifiable ones that ought to be reformed. Because taxation can be a part of property conventions, taxation as such is not an infringement of moral property entitlements. But the essay will also argue that some taxation—excessive taxation—does infringe on moral property entitlements. This is because the moral rationale for property conventions sets some standards for what owners should be entitled to, and so excessive taxation will infringe upon moral entitlements that are partly not convention-based.

This essay aims at establishing that the word “free” (eleutheros) and related terms are used by Plato in the Laws in two main senses. There is, first, the constitutional meaning of “freedom” which is put to work in book 3 in order to analyze moderately good and degenerate forms of historical constitutions. Strikingly enough, this meaning does not play any subsequent role in the shaping of the Platonic constitution itself—a fact which requires some kind of explanation. There is, then, scattered throughout the work, the behavioral meaning of “freedom” according to which the citizens of Magnesia, who are free in the sense that they are free men, are supposed to behave as such and to be educated accordingly, that is as “gentlemen.” One important aspect here is that a free education will appeal to rationality. The philosophically interesting fact, however, is that there appears to be no intrinsic link for Plato between freedom and rationality, as we might expect on the basis of modern philosophical assumptions whereby freedom is grounded on rationality. Rather, freedom is the condition for exercising rationality, because this exercise takes time. True, there is in the Laws a unique occurrence of yet another conception of “freedom” according to which one is free when one's reason masters one's desires. One might speculate why Plato did not develop this specific conception of freedom, which is in some sense closer to some modern views about liberty, as is shown, for example, from I. Berlin's concept of “positive liberty.”

A small puzzle: the terms ‘capitalism’ and ‘socialism’ initially present themselves as contraries, the one affirming what the other rejects. However, once removed from the dictionary, they function otherwise. The theory of capitalism is very much contained within the science of economics. The positive theory of capitalistic institutions, but also its normative superstructure, rest most easily within the language and methodology of the economist. What distinguishes the free market? It is efficient; allocation of factors of production are optimized; individuals maximize their utility; and so on. These are the terms with which justifications of capitalistic production typically begin – begin, and often end.

1. The portrait and the man – each is unique. “Here is the only portrait of a man, painted exactly from nature and completely true to it.” And this man, “it will be myself…. Myself alone…. I am different.” And yet this unique portrait of this unique man, “may be used as the first comparative work in the study of man, which is certainly yet to be begun.”

Libertarians believe certain things about rights and responsibilities, about when one person is to be held responsible for invading the rights of another. Libertarians also believe certain things about consent, about when someone should be held to a contract he has entered into. What they don't realize is that the first set of beliefs doesn't mix well with the second set of beliefs—that their intuitions about rights and responsibilities quite simply don't square with their intuitions about consent. Or so I shall be trying to show in this essay.

This is an essay on the limits of the Criminal Law. In particular, it is about what principles, if any, determine whether it is legitimate for the state to criminalize certain conduct. Joel Feinberg in his great work on the moral limits of the criminal law argues that we need only two principles. One is a principle regulating harm to other people and the other is an offense principle regulating certain kinds of offensive conduct. I explore various aspects of his argument. In particular I concentrate on his use of the Volenti Principle: He who consents cannot be wrongfully harmed by conduct to which he has fully consented. Feinberg uses the principle to argue that certain kinds of consensual conduct cannot be forbidden unless we adopt some kind of legal moralism, i.e., conduct can be forbidden on the grounds that it is immoral even though the conduct harms no other person. I explore the possibility of avoiding legal moralism by limiting the use of the Volenti Principle.

A good deal of contemporary moral nonconsequentialism assumes that agents have perfect knowledge about the various features and consequences of their options. This assumption is unrealistic. More often than not, moral agents can only assess with a certain degree of probability the factual circumstances that are morally relevant for their decision making. My aim in this essay is to discuss the problem of moral decisions under risk from the point of view of nonconsequentialism. Basically, I analyze how objective moral principles can be transformed into subjective, decisional prescriptions, and argue that the standard nonconsequentialist approach to moral decision making, which focuses on probability thresholds, is wrong. In accordance with the fundamental postulates of nonconsequentialism, I seek to solve the problem of risk in moral choice by proposing a theory about the marginal moral value of various options. Actions can vary along various dimensions, and each of these dimensions can offer a different moral value function. Nonconsequentialist marginalism can level the playing field with consequentialism. Whereas consequentialism can simply borrow the notion of expected utility from economics, nonconsequentialism must introduce the notion of expectational obligation to formulate a general principle of moral choice under risk. I finally suggest that further empirical work is needed to delineate the shape of various moral value functions that are critical for applying the general principle of moral decision making under risk to well-known cases.

Conservatives in the United States have grown increasingly critical of universities and their faculty, convinced that professors are ideologues from the political left. Universities, for their part, have increasingly adopted a mantra of diversity and inclusivity, but have shown little interest in diversifying the political and ideological profile of their faculties. This essay argues that the lack of political diversity among American university faculty hampers the ability of universities to fulfill their core mission of advancing and disseminating knowledge. The argument is advanced through a series of four questions: Is it true that university faculty are not ideologically diverse? Why might it be true? Does it matter? How might it be fixed.

Current debates about ideal theory and idealization in modern moral and political philosophy do not typically scrutinize the form of reflection itself. This is an unfortunate oversight: assumptions about the form of reflection shape the positions defended in those debates. I argue that the appropriate form of reflection on the nature and justification of standards of justice and morality is the form of practical reason. I further argue that the form of practical reason cannot support many of the idealizations typically deployed in modern moral and political philosophy.

Constitutions serve (at least) two central functions. One is to settle certain controversies by offering a definitive solution, such as adoption of a presidential or parliamentary system, a one-house or two-house legislature, or guaranteeing a certain term of years to judicial appointees. Not surprisingly, there is rarely litigation about such solutions, even if one finds them troublesome; instead, one can suggest amending the constitution or even replacing it. A second function is precisely to engender litigation by addressing certain issues—very often involving rights—that don't lend themselves to the kinds of definitive textual solutions similar to those involving structural features of a polity. If the first constitution can be described as a “constitution of settlement,” this second constitution is a “constitution of legal conversation” inasmuch as lawyers constantly dispute the meanings to be assigned such terms as “equal protection,” “human dignity,” and the like. But how does this apply to the preambles commonly, though not always, found in constitutions? Preambles often claim to evoke what binds together the society for whom the constitution is being drafted—religion, ethnicity, histories, languages, or commitments to norms, including universalistic ones. But to what extent are such claims of unity attempts by political elites to marginalize sectors of the society that do not in fact share the attributes in question? In any event, there is nothing “innocent” about constitutional preambles, and they are well worth taking seriously whether or not they are useful to lawyers engaged in litigation.

There is some irony, and perhaps a bit of gallows humor, in opening a paper in this volume with the claim that “applied ethics” is a misnomer. Yet that claim is true in the following sense. What we need for most of the issues that have sparked the contemporary resurgence of moral and political theory is not the application of ethics as we know it, but the revamping of ethics to make it relevant to the issues we face. It is in our concern with major policy programs that ethics and political philosophy are most commonly rejoined to become a unified enquiry after a nearly complete separation through most of this century. Yet, ethical theories may be shaken to their foundations by our effort to apply them to policy problems. I do not propose to revamp ethics here, but only to show that much ethical theory cannot readily be applied to major policy problems.

There are at least three important characteristics of major policy issues in general that may give traditional moral theories difficulties. First, such issues can generally be handled only by institutional intervention; they commonly cannot be resolved through uncoordinated individual action. Theories formulated at the individual level must therefore be recast to handle institutional actions and possibilities. Second, major policy issues typically have complicating strategic interactions between individuals at their bases. Third, they are inherently stochastic in the important sense that they affect large numbers with more or less determinable (or merely guessable) probabilities. C. H. Waddington calls such issues instances of “the problem of the ethics of stochastic processes.”