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.

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.

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.

“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.

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.

What is progress and what is not progress? We can talk about progress in lots of different arenas; we will focus primarily on economic and scientific progress, but also make brief reference to cultural and moral progress. In our discussion, we want to distinguish, especially, between overall, long-term progress and narrower, shorter-term progress or regress. We will refer to these as “global” and “local” progress, respectively. Of course, one can also regress; therefore, we will also look at instances where progress, along some dimension, slows or even moves backwards. Generally, such regress is local, and often still in a context of broader, global progress. In scientific progress, for example, there are many instances of short-term progress which, if not completely discarded or disproved, are at least substantially modified or fundamentally challenged. And yet, those research paths, even when later abandoned, still contributed to the overall progress of the field. In that sense, the regress (that is, rejection or modification of previous theories) is corrected by, but not in conflict with, the overall progress. In the case of economic progress, the concept of regress usually takes on a different form in which things that aren’t advancing progress don’t necessarily stop it, but are simply retarding progress — that is, making the rate of progress less efficient. The consequence, we suggest, is that when talking about economic progress, objections to certain consequences of economic progress (for instance, income inequality — a type of regress, in our terminology) should not be cordoned off and dealt with independently, but should be incorporated into the way we think about economic progress itself — as instances of local regress within a context of global progress. We explore the effects of these different relations between progress and regress to suggest some of the challenges those seeking to broaden the standard measure, GDP, to incorporate other social values of well-being will face moving forward.

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.

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.

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.

I argue that agent-centered options to favor and sacrifice one’s own interests are grounded in a particular aspect of self-ownership. Because you own your interests, you are entitled to a say over how they are used. That is, whether those interests count for or against some action is, at least in part, to be determined by your choice. This is not the only plausible argument for agent-centered options. But it has some virtues that other arguments lack.

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.

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.

The threat of terrorism once again raises some of the classic questions about constitutionalism: is it possible for constitutions to do what they aim to do—channel and control political power in such a way as to make it safe and beneficent for those under its rule but also competent to govern? Does not terrorism reraise the Schmittian problem of “the exception”, i.e., the situation of emergency that necessarily escapes all constitutional limitations? Although they did not face the problem of terrorism as we know it, the American founders developed three different models of constitutionalism, embodying three different ways of responding to emergent circumstances and yet remaining bound to the constitutionalist aspiration. We develop the main outlines of the three models both conceptually and historically and show how they continue to be relevant to current discussions of constitutionalism in the age of terror. Finally, we make a tentative effort to judge which of the three models is most able to do what constitutions should do in difficult times.

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.

The world's aging populations face novel health challenges never experienced before in human history. The moral landscape thus needs to adapt to reflect this novel empirical reality. In this paper I take for granted one basic moral principle advanced by Peter Singer — a principle of preventing bad occurrences — and explore the implications that empirical considerations from demography, evolutionary biology, and biogerontology have for the way we conceive of fulfilling this principle at the operational level. After bringing to the fore a number of considerations that Singer ignores, such as the probability that nonintervention will result in harm and the likelihood that different kinds of extrinsic and intrinsic harms can be prevented, I argue that the aspiration to extend the human biological warranty period (by retarding the rate of aging) is a pressing moral imperative for the twenty-first century. In the final sections I briefly address some standard objections raised against life extension and conclude that, while there may be some legitimate concerns worth addressing, they are not compelling enough to provide a rational basis for forfeiting the potential health and economic benefits that could be realized by extending the biological warranty period.

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.

In this essay I argue that contemporary accounts of virtue ought to incorporate methods ancient virtue ethicists used in addressing an audience whose members were interested in improving their behavior. Ancient examples of these methods, I argue, model how to represent practical rationality in ethical arguments. They show us that when we argue for virtue we ought to address common claims, refer to moral reasoning as a stepwise process, and focus on norms when making recommendations. Our own ethical arguments will be improved if we do these things. To the extent that these methods are incorporated into our contemporary accounts of virtue, we will make important points of contact with the account of practical rationality that forms the very basis of the view.

This article examines the moral theory of the American Revolutionary and Founding periods by focusing on two key concepts of that doctrine: the moral laws and the moral rights of nature. In particular, the article will examine several important questions from the perspective of America’s Revolutionary generation: What are the moral laws and rights of nature? What is the difference between a law and a right of nature, and how are the laws and rights of nature related to each other? Are nature’s moral laws and rights descriptive, prescriptive, or both? What are the attributes and sanctions of nature’s laws and rights, and how are they promulgated? What is the source of nature’s laws and rights? And finally, how did America’s founding fathers use the laws and rights of nature to establish their political institutions? In order to answer these questions, the article focuses on the core text universally recognized as the symbol of America’s revolutionary mind and moral theory: the Declaration of Independence. The Declaration’s deepest philosophic meaning is herein illuminated by also examining the broader, extant literature of the period.

Free speech has been treated as a preeminent constitutional right in the United States for more than half a century. The rights of property owners, on the other hand, have received little constitutional protection since the New Deal period of the 1930s. This modern dichotomy is particularly striking because it obscures an older constitutional tradition that equated economic liberty and freedom of expression. This tradition saw both property rights and speech rights as essential to the protection of personal freedom by restraining the power of government.

When did liberal political theory, or perhaps liberal political economy, begin? Although many would trace their beginnings to the writings of Adam Smith, David Hume, or perhaps John Locke, in fact many of the propositions we today recognize as forming the core of liberalism were articulated in the first half of the seventeenth century by an unduly neglected group called the Levellers and their leader John Lilburne. In this essay, I first give some historical background and context to the Levellers and Lilburne. Next, I articulate several of their liberal positions, including freedom of religion, freedom of speech, and freedom of commerce and trade, and I examine their justifications for these positions, which I argue were both novel and radical. I conclude by exploring the contemporary relevance of the Levellers and argue that they should be considered as among liberalism’s most important founders.