Ever since the constitutional revolution of the 1930s, constitutional law and theory have been dominated by questions of civil rights. The expansion of rights under the Warren Court constituted a deep-seated shift in judicial attitudes that has proved remarkably stable over time. Despite protests in some quarters that the Burger Court (1969–1986) and the current Rehnquist Court have undermined civil rights recognized during the Warren Court era (1953–1969), the fact is that the changes have been surprisingly marginal. Even precedents that were widely believed to be endangered species a decade ago – such as Miranda and Roe v. Wade – continue in force, although they have indeed been pruned back. Despite their importance, however, these high-profile cases do not go to the core of the Supreme Court's agenda. The core is epitomized by Brown v. Board of Education on the one hand, representing an aggressive and interventionist attitude toward government discrimination against discrete minorities, and footnote four of the Carotene Products case, on the other hand, representing an extraordinarily deference to the political process with respect to economic regulation. The Rehnquist Court's commitment to this core agenda is not dramatically different than that of its predecessors, at least not when the broad sweep of constitutional law is taken into account.

“Das Adam Smith Problem” is the name given by eighteenth-century German scholars to the question of how to reconcile the role of self-interest in the Wealth of Nations with Smith’s advocacy of sympathy in Theory of Moral Sentiments. As the discipline of economics developed, it focused on the interaction of selfish agents, pursuing their private interests. However, behavioral economists have rediscovered the existence and importance of multiple motivations, and a new Das Adam Smith Problem has arisen, of how to accommodate self-regarding and pro-social motivations in a single system. This question is particularly important because of evidence of motivation crowding, where paying people can backfire, with payments achieving the opposite effects of those intended. Psychologists have proposed a mechanism for the crowding out of “intrinsic motivations” for doing a task, when payment is used to incentivize effort. However, they argue that pro-social motivations are different from these intrinsic motivations, implying that crowding out of pro-social motivations requires a different mechanism. In this essay I present an answer to the new Das Adam Smith problem, proposing a mechanism that can underpin the crowding out of both pro-social and intrinsic motivations, whereby motivations are prompted by frames and motivation crowding is underpinned by the crowding out of frames. I explore some of the implications of this mechanism for research and policy.

Imitation is said to be the sincerest form of flattery. Socially, the proposition may well be true. But in the world of ideas it is false: to the extent that two incompatible traditions use the same words or symbols to articulate different visions of legal or social organization, imitation begets confusion, not enlightenment. The effects of that confusion, moreover, are not confined to the world of ideas, but spill over into the world of politics and public affairs. Words are more than tools of description: they work also as tools of persuasion and transformation. Let a term have a favorable connotation in one context, and its imitative use can mislead people into thinking that a major departure from established practice is merely the extension or updating of an old principle to deal with new circumstances.

THE INAPPLICABILITY THESIS

There is a gap between the idea of distributive justice and the many factors that are morally relevant for decision making on economic issues. Only to a degree can this gap be attributed to the distance between “ideal reach” and “practical grasp,” to the legitimate difference in detail between an abstractly delineated economic scenario and a concrete set of circumstances, and to the disparate idioms and metaphors of theoretical and practical discourse. Rather, the gap indicates a fundamental problem with the concept of distributive justice. The problem, that is here termed the “inapplicability thesis,” is that even if distributive justice in abstract formulation were to be accepted as a value, its application in economic decision making is indeterminate.

In this essay, I distinguish two dimensions of responsibility: (i) responsibility for expressing the will (character, motives, and purposes) one has in action (voluntarily and without constraint) and (ii) responsibility for having the will one expresses in action. I argue that taking both of these dimensions into account is necessary to do full justice to our understanding of moral responsibility and our ordinary practices of holding persons responsible in moral and legal contexts. I further argue that the distinction between these dimensions of responsibility is importantly related to understanding age-old debates about the freedom of the will. For the first dimension of responsibility is historically related to the freedom of action—the power to freely express the will one already has in action. While the second dimension is historically related to the freedom of the will—the power to freely form or shape that will one may later express in action. And I argue that while the freedom of action so defined may be compatible with determinism, the freedom of will, and the deeper responsibility associated with it for forming one’s own will, which I call “ultimate responsibility,” are not compatible with a thoroughgoing determinism. In arguing throughout the essay for these claims and for the need to take into account both of these dimensions to do full justice to our understanding of moral responsibility, I consider ordinary practices of holding persons responsible in a variety of moral and legal contexts, discussing in the process H. L. A. Hart’s “fair opportunity to avoid wrongdoing” criterion for assessing responsibility and blame in legal and criminal contexts, the relevance of recent experimental studies about folk intuitions concerning assessments of responsibility and blame, Harry Frankfurt’s critique of the “principle of alternative possibilities,” the distinction between “will-settled” and “will-setting” actions, and contemporary critiques of the very possibility and intelligibility of an ultimate responsibility for forming one’s own will that would be incompatible with determinism.

It is widely believed that there is more freedom of speech in America today than there was at the time of the founding. Indeed, this view is shared by liberal commentators, as one would expect, as well as by leading conservatives, which is more surprising. “The body of law presently defining First Amendment liberties,” writes liberal law professor Archibald Cox, grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we enjoy a greater liberty [of speech] than ever before in our history.” This shared assessment is correct—from the point of view of the political theory of today's liberalism—but it is incorrect from the point of view of the political theory of the American founding.

Debates about libertarianism and redistribution often revolve around self-ownership. There are two main reasons for this: first, self-ownership is often featured in Lockean accounts of property that endow us with a claim to the resources that are up for redistribution. Second, self-ownership has sometimes been mustered as a way of resisting the additional labor that is said to be required by redistributive schemes. In this essay, I argue that these appeals to self-ownership are misguided. However, unlike most critics of these appeals, I don’t wish to claim that redistribution is therefore vindicated. On the contrary, my main goal is to show that there are alternatives to invoking self-ownership that are more effective and that better capture the core intuition behind libertarian objections to redistribution.

Early in the history of liberalism, its most important proponents were concerned with freedom of religion. As polities and individuals now accept a dizzying array of religions, this has receded to the background for most theorists. It nonetheless remains a concern. Freedom of speech is a similar concern and very much in the foreground for theorists looking at the current state of academia. In this essay, I argue that inappropriate limits to freedom of religion and inappropriate limits to freedom of speech—especially in the form of de-platforming on college campuses—both have, as one of their effects, what I call harms of silence. This means we ought not have those limits, so should seek to change them where they exist.

Transitional justice refers to the process of dealing with widespread wrongdoing characteristically committed during the course of conflict and/or repression. Examples of such processes include criminal trials, truth commissions, reparations, and memorials. Technology is altering the forms that widespread wrongdoing takes. Technology is also altering the form of processes of transitional justice themselves. This essay provides a map of these changes and their normative implications.

This essay addresses tensions within political philosophy between group rights, which allow historically marginalized communities some self-governance in determining its own rules and norms, and the rights of marginalized subgroups, such as women, within these communities. Community norms frequently uphold patriarchal structures that define women as inferior to men, assign them a subordinate status within the community, and cut them off from the individual rights enjoyed by women in other sections of society. As feminists point out, the capacity for voice and exit cannot be taken for granted, for community norms may be organized in ways that deny women any voice in its decision-making forums as well as the resources they would need to survive outside the community. This essay draws on research among the Gond, an indigenous community in India, to explore this debate. Given the strength of the forces within the community militating against women’s capacity for voice or exit, the question motivating our research is: Can external organizations make a difference? We explore the impacts of two external development organizations that sought to work with women within these communities in order to answer this question.

The “new institutionalist revolution” in social sciences has led to a repositioning of social norms to the forefront of the pre-analytic vision in institutional theory and to the consolidation of the contextual analysis approach. That has significant epistemological, methodological, and political philosophy implications. This essay follows the logic of these developments showing: (a) why they inherently lead to the feasibility problem, the key of applied theory, toward which both contemporary philosophy and institutional analysis converge from different venues; (b) how feasibility is a nexus of empirical, counterfactual, normative, and contextual elements, that is, something more complex than a mere matching between empirical reality and institutional design; (c) what are the governance implications of all of the above, with an emphasis on an alternative approach (distinctive enough to circumvent both the conservative averseness to intervene and progressive drastic interventionism) and in which the public choice process is seen mainly as endogenized, socialized, and institutionalized, as opposed to formalized, intellectualized, and externalized.

1. In praise of Tocqueville. The young United States was lucky – and deserving of its luck – to find as profound an interpreter of its principles as Alexis de Tocqueville (1805–1859). So deeply, so philosophically, did he comprehend this country in Democracy in America1 that today's reflections on liberty and equality in America either copy Tocqueville or fall short of understanding. The following reflections will be guilty of both plagiarism and superficiality but they do intend to capture something of Tocqueville's spirit. He gave this nation its due. He brought to his endeavors some advantages we no longer enjoy. For example, he had first-hand experience of democracy's great alternative and predecessor, aristocracy; he knew both sides because he was both sides.

Of course, some advantages accrue to those of us who have come after him, even apart from having Democracy in America to study. The United States may not be old but it is older now; we can take later developments into account. Thus, we no longer lack poets or poetry; we probably suffer as much from crime as from vice; and juries do not function all that well. But no dwarfish ability to climb the shoulders of a giant nor special dispensation from history can compensate us for the lack of Tocqueville's genius: the breadth of vision that recalls Montesquieu and even Aristotle, an intimacy, reminiscent of Rousseau, with modernity's demons, a sad coming to terms with human contingency that puts one in mind of Thucydides. All honor to Alexis de Tocqueville.

Why hasn’t economic progress lowered work hours more? One of Keynes’s most famous essays is his “Economic Possibilities for Our Grandchildren.” Keynes predicts that within one hundred years — which would bring us to 2030 — most scarcity will have disappeared and most individuals will work no more than fifteen hours a week. My question is a simple one: Why wasn’t Keynes right? Why have working hours remained as long as they have? Why hasn’t progress taken a more leisurely and less material form than what we have observed? Investigating that issue will help us get at the question of just how much progress has occurred. Under one view, Western life has been caught in a kind of rat race, and a lot of the gains of progress are illusory. For instance there is the argument that higher incomes are largely consumed as part of a futile race to win relative status, and living standards aren’t nearly as high as they might appear. Under some alternative scenarios, people haven’t moved to Keynes’s scenario for some good reasons, such as enjoying work more than we might think, or other hypotheses, as I will outline. In that case the observed changes in real income are robust, and measured correctly, or progress may even be greater than income measurements would indicate. I hope that addressing Keynes’s paradox can help us better understand this longstanding debate on the nature of modern progress.

Philosophers have debated for millennia about whether moral requirements are always rational to follow. The background for these debates is often what I shall call “the self-interest model.” The guiding assumption here is that the basic demand of reason, to each person, is that one must, above all, advance one's self-interest. Alternatively, debate may be framed by a related, but significantly different, assumption: the idea that the basic rational requirement is to develop and pursue a set of personal ends in an informed, efficient, and coherent way, whether one's choice of ends is based on self-interested desires or not. For brevity I refer to this as “the coherence-and-efficiency model.” Advocates of both models tend to think that, while it is sufficiently clear in principle what the rational thing to do is, what remains in doubt is whether it is always rational to be moral. They typically assume that morality is concerned, entirely or primarily, with our relations to others, especially with obligations that appear to require some sacrifice or compromise with the pursuit of self-interest.

The question of ownership—property rights—is important in addressing many issues of public policy. But the attempt to subsume all questions of rights under what I describe as “the property paradigm” exerts a distorting influence on debates about a variety of complex moral issues. More specifically, I argue that the application of the property paradigm deformed discussion of the nature and basis of parental rights. The claim that parental rights are not best understood as property rights is now widely acknowledged. However, while the property paradigm exerts only vestigial influence on contemporary discussions of parental rights, it still exerts a significant distorting effect on discussions of reproductive rights. I argue that focusing on the question of the ownership of gametes, in particular of sperm, tends to warp the moral dialog concerning reproductive rights. Those sensitive moral debates are better framed in terms of individuals' legitimate interests than in terms of property.

A focus on the lawmaking process, I submit, permits us to explore a particular dimension of justice, namely the relationship between law and liberty. Laws that reflect the arbitrary whims of the lawmaker are presumptively unjust, because they constrain liberty for no good reason. A strategy for making arbitrary laws less likely involves recognizing checks on the lawmaker's powers and grounding those checks in processes that allow the governed to express their disapproval. The system of checks and balances employed in the U.S. Constitution embodies this strategy, although reasonable people can debate its efficacy. As A.O. Hirschman observed, regimes that permit free movement of persons and property similarly restrict the force of arbitrary rules by allowing exit from unwanted restrictions. I want to inquire into the role of checks in international lawmaking.

At first blush, it might appear that the fundamental principle of state consent provides all the checking that international lawmaking needs. This principle maintains that a state (and by extension, its subjects) can be bound by a rule of international law only if that state manifests its consent to the rule. As long as states have a real choice, itself subject to internal checks on official decisionmaking, the adoption of the rule should meet basic criteria of procedural justice. Indeed, the correlate of this principle—that each state has a veto over the adoption of international law, at least as applied to itself and its subjects—suggests that international lawmaking poses less of a threat to liberty than do conventional municipal lawmaking processes based on majority rule. One might think that, as a result of this principle, no rule will attain the status of international law unless its adoption makes some states better off and no state worse off.

This first impression, however, is wrong. First, international lawyers argue for the existence of jus cogens norms that apply regardless of state consent. Second, the concept of state consent is artful, and opportunistic decisionmakers have some freedom to construe consent in ways that circumvent conventional checking processes. Third, political and economic coercion can reduce state consent to a meaningless formality. I discuss each of these points in turn.

Once state consent ceases to constrain international lawmaking, the question role of alternative checks to protect liberty looms. Under what circumstances does the international lawmaking process as currently constituted present a threat of arbitrary force? What kinds of resistance to the results of international lawmaking can process values justify?

I address these questions in three steps. First, I explore whether international law does carry a threat of coercion. If not, concerns about arbitrary restrictions of liberty are misplaced. Second, I discuss the problems arising from delegations of lawmaking authority to international institutions, with specific reference to the Rome Statute and the International Criminal Court. Third, I discuss the process-value issues associated with judicial lawmaking. None of these concerns justifies blanket opposition to international lawmaking. Rather, those interested in making and enforcing international rules need to grapple with these issues and provide another layer of justification for their efforts.I am indebted to Ken Abbott, Jean Cohen, Larry Helfer, Robert Hockett, Sean Murphy, Phil Nichols, Ed Swaine, Joel Trachtman, the other contributors to this volume, and participants in a workshop at the University of Virginia School of Law for comments and criticism. Shortcomings are mine alone.

Richard Rorty is one of the principal architects of a new way of thinking about liberalism. He calls his way “liberal ironism”: it is a postmodern liberalism, without Enlightenment rationalism, without the hopeless and finally enervating aspiration to discover an a historical philosophical foundation (“natural rights”) for liberal principles and practices. The postmodern liberal ironist, unlike the classical liberal rationalist, “faces up to the contingency of his or her own most central beliefs and desires,” says Rorty, including the characteristic liberal belief that “cruelty is the worst thing we do.” Such postmodern liberals frankly admit the apparently unhappy consequence of that essential “contingency,” that “there is no neutral, noncircular way to defend” liberal ways, no good argument to deploy against “Nazi and Marxist enemies of liberalism”; but no such argument is needed, says Rorty, since loyalty to one's own community is morality enough, even where that loyalty is without foundation. Here, I begin with a few words about Rorty's postmodern liberalism, as preface to a discussion of the effects of postmodern doctrines on liberal moral psychology.

Is it possible for a person to understand that what he proposes to do is morally wrong and yet prefer to do it nonetheless? I shall argue that wickedness consists in a defect of character that results in one's often having just such preferences. Yet many philosophers think that wickedness so conceived is impossible, because, for them, having such a preference is incompatible with believing, or at least knowing, that the act would be wrong.

Constitutional law in the United States is, for most practical purposes, the product of ‘judicial review’, the power of judges to disallow policy choices made by other officials or institutions of government, ostensibly because those choices are prohibited by the Constitution. This extraordinary and unprecedented power, America's dubious contribution to the science of government, has made American judges the most powerful in the world, not only legislators but super-legislators, legislators with virtually the last word. Because lawmaking power divorced from popular will is tyranny, most states have attempted to reconcile the lawmaking power of judges with representative self-government by subjecting all or some judges to some form of popular election. In all but four such states, judges, encouraged and supported by their fellow lawyers in the organized bar—would-be judges and beneficiaries of judicial power—have responded by adopting codes of judicial ethics that limit what candidates for election to judicial office are permitted to say. The effect is to undermine elections as a control on judicial power by limiting criticism of judicial activism, the misuse of judicial power.