Although over twenty years have passed since the Hart-Devlin exchange, the controversy over society's right to punish homosexuals remains alive, as is shown by recent concern over the spread of AIDS and the recent announcement of the Supreme Court that “majority sentiments about the morality of homosexuality” constitute an adequate justification for sodomy statutes under the due process clause of the fourteenth amendment. Lord Devlin's moral justification for punishing homosexual conduct seems to follow a similar line of reasoning. The one (...) argument to which his critics have paid the most attention begins with the assertion that society consists of a seamless web of ideas and values, the content of which is determined by whether the ordinary, reasonable person is disgusted by a particular type of conduct. Among the types of conduct that disgust the ordinary person, he continues, is homosexual conduct. Therefore, Devlin concludes, society may punish homosexual conduct, even if it is consensual. (shrink)

I offer a way of classifying Confederate monuments and two ways of extracting meaning from these monuments. A few of them are racist on one of the two interpretations. Most of them, in the final analysis, implicitly acknowledge racial equality by extolling in African Americans the same virtues to which southern whites themselves aspired. Toppling those which seem racist entails serious difficulties, constitutional and philosophical. Additional interpretive material about the controversial ones is the more appropriate response.

Abstract I argue for the following, which I dub the ?fallibility syllogism?: (1) All systems of criminal punishment that inflict suffering on the innocent are unjust from a desert-based, retributivist point of view. (2) All past or present human systems of criminal punishment inflict suffering on the innocent. (3) Therefore, all such human systems of criminal punishment are unjust from a desert-based, retributivist point of view. My argument for the first premise is organized in the following way. I define what (...) a human system of punishment is. I offer a distinction between retributive and utilitarian approaches to punishment. I distinguish between weak retributivism embodied in the second premise and strong retributivism, which I argue is the basis for the weak version. I argue that on retributivist grounds, each case of punishment is just when it matches the seriousness of the wrongdoing of the offender and that systems of punishment are just from a retributivist point of view when there are no exceptions to this match-up. In making my case, I will use Kant's retributivism as the version of my choice, so I will spend some time showing that recent reinterpretations of Kant (arguing that he was not a thoroughgoing retributivist), even if they are correct, are consistent with my view. Ultimately, however, I argue that the better view is that Kant was a thoroughgoing retributivist. (shrink)

In this volume of Leys Lectures, the third collection of Wayne Leys Memorial Lectures, six distinguished essayists demonstrate the relevance of ethics to contemporary concerns by constructively exploring major ethical issues deeply embedded in our society. The essays, written by noted scholars Tom Regan, Carol C. Gould, James Rachels, James P. Sterba, Louis P. Pojman, and David L. Norton, focus on issues of feminism, the exploitation of animals, economic injustice, racial prejudice, naive moral relativism, and the failure of public education. (...) _Tom Regan_ and _Louis P. Pojman_ both address the issue of animal rights. Regan directs his attention to an ethic-of-care feminism, which contends that the ideology of male superiority—not only to women but to all creatures—must be destroyed. By means of a "consistency argument," he extends ethic-of-care feminism to the treatment of animals, insisting that we must not permit to be done to animals "in the name of science" what we would not allow to be done to human beings. Pojman, on the other hand, addresses the question of animal rights through a critical analysis of seven theories of the moral status of animals, arguing that while animals have no natural "rights" since they are unable to enter into contracts, they do deserve to be treated kindly. In his view, much animal research could be abandoned without significant loss. What rethinking of democracy in terms of freedom and equality is required by economic justice? _Carol C. Gould_ offers an answer to this question by arguing that economic justice requires that workers control the production process as well as the distribution process. Such justice would provide the basis of "positive freedom" as self-development without ignoring the importance of the absence of constraints. Taking racial prejudice as his paradigm, _James Rachels_ explores the deeper meaning of prejudice and what equality of treatment involves. Noting the subtlety of prejudicial reasoning, he examines how stereotypes, unconscious bias, and the human tendency toward rationalization make it difficult even for people of good will to prevent prejudice from influencing their actions. _James P. Sterba_ invites the reader to consider a different and more general problem of how to persuade people to act for moral reasons. To accomplish this aim he shows morality to be a requirement of rationality and "the welfare liberal ideal" to be a fusion of the practical ends of five ideals—liberty, fairness, common good, androgyny, and equality. For _David L. Norton_, one of our most pressing problems is the failure of our educational system. The system fails to enable students to make wise "life-shaping" choices involving vocation, marriage, children, and friendship. In order to make good choices, human beings must live and work in an environment that provides experiences that authenticate "personal truths" indispensable to worthy living. These personal truths include direct acquaintance with vocational alternatives and participation in actual service to others. Collectively, these essays bring into sharp focus the urgent moral issues confronting our society and the need for ongoing discussion and examination of these issues in order to gain deeper understanding of and possible solutions to the problems they present. (shrink)

In this book, George Schedler offers moral and legal perspectives on two legacies of the Civil War: the adoption of the Confederate flag by Southern states and the question of African American reparations. Schedler's analysis of reparations focuses on the principle that whatever the enslaved would have earned and enjoyed had they not been enslaved should determine compensation.

Suppose there arose a racist group which began terrorizing Arab-Americans. They always scrawled a Star of David wherever they committed their crimes, and they conducted parades in which they carried the Israeli flag. Suppose further that most Americans, but not a small group of American Jews, developed a strong, widespread, and long-standing association between the Star of David and racism. Finally, suppose someone suggested that those Jews who persisted in displaying the Israeli flag in their synagogues refrain from doing so, (...) on the grounds that, “[i]f it must be displayed, then why not display it instead in museums or library kiosks, accompanied by explanations of its historical significance and its connection to racism?”. (shrink)

I examine the blameworthiness of the resistance for Nazi reprisals in three morally disturbing cases which occurred in Nazi occupied Europe. I have organized my argument in the following way. After describing the cases, I propose a set of criteria for assessing the degree to which actors are blameworthy for the deaths of innocents. Using these criteria, I then explore the blameworthiness of the resistance members in these cases. I follow this analysis with an application of the doctrine of double (...) effect. My conclusion that some resistance members are blameworthy using my criteria is confirmed by the application of the doctrine of double effect. (shrink)

Recent defences of abortion on demand have located the morally relevant difference between normal adult human beings and non-viable fetuses in the possession of personhood by the former but not by the latter. It is, so the story goes, morally wrong to kill innocent human beings because they are persons, but non-viable fetuses, though they be biologically human, are nevertheless not persons and may therefore be killed without doing anything morally wrong.

We argue in this essay that any society that organizes itself to punish criminals should in justice consider itself strictly liable to punish only those who are guilty in fact of the crimes for which they are punished. We argue that justice, not utility, is the basis of the obligation society has not to punish the innocent and that any society that is just would bind itself by statute to compensate the innocents it punishes by mistake. We hope to have (...) made it evident that when the justice of criminal punishment is the issue justice and strict liability are not incompatible; rather, we hope to have shown that one does not understand the nature of justice unless one recognizes that society is strictly liable and therefore owes compensation when, through no fault of its own, it punishes the innocent. (shrink)

In the first half of this century, Anglo-American moral philosophers concerned themselves with the vexing question of whether legal officials could deliberately “punish” the innocent and whether a utilitarian justification for such a practice is possible. Interest in this topic waned after Rawls drew a crucial distinction in his article, “Two Concepts of Rules,” between two kinds of systems for dealing with wrongdoing. One was legal punishment, as we understand it; the other was the practice of ‘telishment’, in which the (...) officials, as Rawls said, “have authority to arrange a trial for the condemnation of an innocent man whenever they are of the opinion that doing so would be in the best interests of society.” A utilitarian justification for such an arrangement is most unlikely, Rawls claimed, because of the very great risks that such an institution might misfire. (shrink)

To protect what it deems fundamental rights, the Supreme Court strictly scrutinizes legislation that impinges on these rights. The Court views such legislation as a means to some end the legislation seeks to accomplish. The Court requires that the statute be neither overinclusive nor underinclusive; the legislation may not affect more people than necessary to achieve its end, nor is the statute permitted to leave some people out in achieving its end.I argue that when legislation imposes burdens, its underinclusiveness is (...) irrelevant, and that when it dispenses rewards its overinclusiveness is irrelevant, because those affected by the statute areex hypothesi deserving. One commits thetu quoque fallacy when one tries to infer that those affected by the law are undeserving from the fact that some deserving individuals were not affected by the statute. (shrink)

CONCLUSIONSocial justice is most clearly satisfied by a system of Divine rewards and punishments: an omnipotent, omniscient, perfectly just Being could determine in each case how much effort was made and effect the appropriate distribution of rewards and punishments. A correct understanding of social justice naturally leads us to suppose that there is an afterlife, a God, a free choice — though it is logically possible at least that social justice could be satisfied in some future human society.There will still (...) be those who have their doubts about the correctness of any view according to which justice cannot be attained by fallible creatures who have an incomplete knowledge of one another's behaviour. But, surely, these doubts are not sufficient to discredit my view. There is no a priori reason for rejecting such a view. There is nothing about our use of the term ‘justice’ and its cognates which implies that such a view is mistaken. To the contrary, there are widely held religious views, Christian as well as non‐Christian, which take this view quite seriously. If there is no a priori reason for rejecting this view, then there must be some independent reason for rejecting it. In other words, we need some independent reasons for believing that social justice can be attained by fallible creatures with limited knowledge. The mere fact that we might feel uncomfortable with my theory is not reason enough to reject it.Finally, those who do experience this discomfort might ask themselves whether such discomfort stems from their moral experience or whether they are simply intent on finding justice in imperfect human institutions. (shrink)

Contemporary white Americans cannot meaningfully ask forgiveness from present-day African Americans for slavery, because such a group apology does not have the mental state needed to communicate regret and intend that listeners forgive the group. Even if the requisite mental state were present, contemporary white Americans are not responsible for the wrong and cannot apologize for wrongs for which they are not responsible. Additionally, such a purported apology is not directed to the victims of the wrong but instead seeks forgiveness (...) from present-day citizens who were not enslaved and could not therefore accept such an apology on behalf of the slaves. (shrink)

A symbol might have racist connotations in the sense that a substantial portion of the relevant population associates it with racist values or institutions. A governmental symbol display might therefore carry racist connotations that the government doesn’t intend, including connotations that haven’t always been attached to the symbol. So I claimed recently in the pages of this journal (Alter 2000b). I also explained how those claims create problems for some of George Schedler’s (1998) main views about governmental displays (...) of the Confederate battle flag. In his response, Schedler rejects my claims, arguing that they lead to absurdities when applied to various examples. He adds that one of his examples brings into question my “political savvy” (Schedler 2000, p. 5). Be that as it may, his arguments against my claims are entirely without force, and serve to confirm the weakness of his initial position. So I’ll argue. I’ll also identify a problematic assumption in our dispute, which is not uncommon in discussions of symbolic meaning and racist speech. (shrink)