With the recent U.S. Supreme Court cases finding the Defense of Marriage Act unconstitutional and removing impediments to same-sex marriage in California,as well as a number of recent successes in special elections and with legislators inthe U.S. and other countries, we might wonder whether there is still need for a book debating same-sex marriage. Is not the tide of history inevitably movingtowards marriage equality? While that position seems tempting, it is too quick.
A number of articles and empirical studies over the past decade, most by Paul Robinson and co-authors, have suggested a relationship between the extent of the criminal law's reputation for being just in its distribution of criminal liability and punishment in the eyes of the community – its "moral credibility" – and its ability to gain that community's deference and compliance through a variety of mechanisms that enhance its crime-control effectiveness. This has led to proposals to have criminal liability and (...) punishment rules reflect lay intuitions of justice – "empirical desert" – as a means of enhancing the system's moral credibility. In a recent article, Christopher Slobogin and Lauren Brinkley-Rubinstein (SBR) report seven sets of studies that they argue undermine these claims of empirical desert and moral credibility and instead support SBR's proposed distributive principle of "individual prevention," a view that focuses on an offender's future dangerousness rather than on his perceived desert. -/- The idea that there is a relationship between the criminal law's reputation for justness and its crime-control effectiveness did not originate with Robinson and his co-authors. Rather, it has been a common theme among a wide range of punishment theory scholars for many decades. A particularly important conclusion of recent Robinson studies, however, is their confirmation that this relationship is a continuous one: even small nudges in moral credibility can produce corresponding changes in the community's deference to the criminal law. This is important because it shows that even piecemeal changes or changes at the margin – as in reforming even one unjust doctrine or procedure – can have real implications for crime-control. SBR's studies, rather than contradicting the crime-control power of empirical desert, in fact confirm it. Further, SBR's studies do not provide support for their proposed "individual prevention" distributive principle, contrary to what they claim. -/- While SBR try to associate their principle with the popular "limiting retributivism" adopted by the American Law Institute in its 2007 amendment of the Model Penal Code, in fact it is, in many respects, just the reverse of that principle. With limiting retributivism, the Model Code's new provision sets desert as dominant, never allowing punishment to conflict with it. SBR would have "punishment" essentially always set according to future dangerousness; it is to be constrained by desert only when the extent of the resulting injustices or failures of justice is so egregious as to significantly delegitimize the government and its law. This ignores the fact that even minor departures from justice may have an important cumulative effect on the system as a whole. What SBR propose – essentially substituting preventive detention for criminal justice – promotes the worst of the failed policies of the 1960s, where detention decisions were made at the back-end by "experts," and conflicts with the trend of the past several decades of encouraging more community involvement in criminal punishment, not less. (shrink)
Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all (...) who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition. (shrink)
In Sovereignty’s Promise: The State as Fiduciary, Evan Fox-Decent uses the idea of fiduciary relationships to explain the legitimate exercise of governmental authority. He makes use of the idea of the state as a fiduciary for the people to ground an account of the duty to obey the law, to explain the proper relationships between colonial (or “settler”) societies and aboriginal populations, the role of agency discretion and judicial review in the administrative state, the rule of law, the relationship between (...) law and morality, and the foundations of human rights. While I was not convinced by several of the arguments, the book does have many important virtues. In particular, it provides a clear discussion of the idea of fiduciary relationships and duties that is useful for, and should be largely accessible to, non-lawyers. And, though I do not think that Fox-Decent has established all that he hoped to in the book, he does a good job of showing how fiduciary relationships are relevant to the above issues and worth considering. (shrink)
The idea of “promoting democracy” is one that goes in and out of favor. With the advent of the so-called “Arab Spring”, the idea of promoting democracy abroad has come up for discussion once again. Yet an important recent line of thinking about human rights, starting with John Rawls’s book The Law of Peoples, has held that there is no human right to democracy, and that nondemocratic states that respect human rights should be “beyond reproach” in the realm of international (...) relations. This is, for obvious reasons, a controversial view, especially given the powerful and important arguments purporting to show that democracies do significantly better than nondemocracies in promoting internal peace and equality, and in engaging in peaceful international cooperation. Both proponents and opponents of the Rawlsian view of human rights have argued that the view implies that democracies may not “promote democracy” in nondemocratic societies. But, given that all parties to this dispute agree that democracy is necessary for justice, and given the important instrumental goods provided by democracy, the Rawlsian view has seemed deeply implausible to many. -/- In this paper I blunt this challenge to the Rawlsian view by showing how, even if there is no human right to democracy, we may still rightfully promote democracy in a number of ways and cases. Showing this requires investigation of what it means to “promote democracy”, and a more careful inspection of when various methods of promoting democracy are appropriate than has been done by most political theorists working on human rights. When we look carefully, we can see that in some instances acceptable forms of promoting democracy are compatible with the Rawlsian view of human rights, and that this view is therefore not vulnerable to the “instrumentalist” challenge. We also see how, if political philosophy is to be useful, it must be less abstract and look closely at actual cases. -/- This paper posted by permission of the Board of Trustees of the Leland Stanford Junior University. For information visit the Stanford University website. (shrink)
This paper is a short commentary on Michelle Dempsey's contribution to a symposium on the work of John Finnis which took place at Villanova Law School in the fall of 2011. It focuses on Finnis's claim that there is a presumptive obligation to obey the law and some worries that Dempsey raises against this claim. It is forthcoming, along with several other papers from the symposium, in the Villanova Law Review.
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)
Legal philosophers have given relatively little attention to international law in comparison to other topics, and philosophers working on international or global justice have not taken international law as a primary focus, either. Allen Buchanan's recent work is arguably the most important exception to these trends. For over a decade he has devoted significant time and philosophical skill to questions central to international law, and has tied these concerns to related issues of global justice more generally. In what follows I (...) review Buchanan's new collection of essays, Human Rights, Legitimacy, and the Use of Force, paying special attention to Buchanan's argument that the philosophy of international law must be more empirically informed than it has been so far, and also to his claim that greater emphasis must be placed on the role of institutions. While these are important claims, I show that Buchanan often does not take the first far enough, and that appealing to institutions cannot do as much as Buchanan hopes or needs if his substantive conclusions are to be correct. (shrink)
Many international law scholars have begun to argue that the modern world is experiencing a "decline of citizenship," and that citizenship is no longer an important normative category. On the contrary, this paper argues that citizenship remains an important category and, consequently, one that implicates considerations of justice. I articulate and defend a "civic" notion of citizenship, one based explicitly on political values rather than shared demographic features like nationality, race, or culture. I use this premise to argue that a (...) just citizenship policy requires some form of both the jus soli (citizenship based on location of birth) and the jus sanguinis (citizenship based on "blood" or descent) approaches to citizenship acquisition. In the course of this argument I show why arguments made by Peter Schuck, Rogers Smith, Peter Spiro, Linda Bosniak, and Ayelet Shachar, among others, against this view, are mistaken. This justice-based approach to citizenship also has significant implications for naturalization law and policy. First, I argue that it requires open and easy naturalization and show why the use of naturalization policy to foster national identification is wrong. Second, I demonstrate that if naturalization is easy and open, some rules limiting certain social benefits and privileges to citizens may be compatible with justice, thereby providing a foundation for future discussions of alienage law. (shrink)
In this paper I provide a philosophical analysis of family-based immigration. This type of immigration is of great importance, yet has received relatively little attention from philosophers and others doing normative work on immigration. As family-based immigration poses significant challenges for those seeking a comprehensive normative account of the limits of discretion that states should have in setting their own immigration policies, it is a topic that must be dealt with if we are to have a comprehensive account. In what (...) follows I use the idea of freedom of association to show what is distinctive about family-based immigration and why it ought to have a privileged place in our discussion of the topic. I further show why this style of argument neither allows states to limit nearly all immigration nor requires them to have almost no limits on immigration. I conclude by showing that all states must allow some degree of family-based immigration, and that this is a duty owed not to “outsiders” seeking to enter, but rather to current citizens. (shrink)
Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.
Over the last several years asylum cases relating to activities of criminal gangs have greatly increased in frequency. Cases involving Central American gangs, the so-called maras, have attracted the most attention but similar cases have arisen out of South Eastern and Eastern Europe as well. Applicants in such cases face a number of difficulties as their cases do not fit into paradigm categories for asylum claims. These cases almost always involve non-state actors, for example, acting for reasons that are not, (...) at least at first glance, clearly political. Additionally, the reasons why gangs target particular individuals often do not obviously fit into one of the traditional protected grounds. If applicants fleeing gang activity are to successfully apply for asylum they will have to overcome these apparent difficulties. In this paper, a contribution to the University of Memphis Law Review Spring Symposium on immigration reform, I break down gang-related asylum claims into three main categories and show how at least some cases in each category fit within the area set out for protection by asylum and refugee law. I briefly discuss a conceptual framework which explains how some gang-related cases should be seen as falling in the area that asylum law seeks to protect (thereby providing a concrete example of the sort of protection that I claim in my dissertation refugee law is meant to provide) and give advice to practitioners about how to formulate meritorious claims. (shrink)
The debate over the use of genetically-modified (GM) crops is one where the heat to light ratio is often quite low. Both proponents and opponents of GM crops often resort more to rhetoric than argument. This paper attempts to use Philip Kitcher’s idea of a “well-ordered science” to bring coherence to the debate. While I cannot, of course, here decide when and where, if at all, GM crops should be used I do show how Kitcher’s approach provides a useful framework (...) in which to evaluate the desirability of using GM crops. At the least Kitcher’s approach allows us to see that the current state of research in to, and use of, GM crops is very far from the ideal of a well-ordered science and gives us a goal to work towards if we wish to achieve a more well-ordered agricultural policy. (shrink)
In this paper I argue that anyone who accepts a Rawlsian account of justice should favor granting family-based immigration benefit to same-sex couples. I first provide a brief over-view of the most relevant aspects of Rawls's position, Justice as Fairness. I then explain why family-based immigration benefits are an important topic and one that everyone interested in immigration and justice must consider. I then show how same-sex couples are currently systematically excluded from the benefits that flow from family-based immigration rights. (...) Next I argue that people in the constitutional and legislative stages of Rawls's original position would act to protect family-based immigration rights for themselves and show how these rights are rights of the current citizens of a state to bring in certain outsiders and not rights of outsiders seeking to enter. Importantly, this argument takes place entirely within the bounds of Rawls's domestic theory of justice and does not make reference to his more controversial views found in his account of international justice. I then show that there is no acceptable reason to restrict these rights to opposite-sex couples and good reason to extend them to same-sex couples. Finally I consider two objections to my account and show why they do not threaten my conclusion. (shrink)
The proponents of competing views about the safety and usefulness of GM crops often talk past each other. One major reason for this is the lack of a shared framework in which to evaluate their competing claims. In this paper I shall make use of Philip Kitcher's idea of a well-ordered science to see if it may offer us any guidance here. In doing so I shall first lay out the idea of a well-ordered science, as developed by Kitcher. Next (...) I will see how it might deal with at least some of the controversies surrounding GM crops. In doing so I have two main goals. First, to show that work on the development and application of GM crops is distinctly un-well ordered at this time. Secondly, I seek to show that only by applying the ideals of something like a well-ordered science can we properly asses the potential harms and benefits of GM crops. Once I have done this, I tentatively suggest that the role of GM crops in solving the problems noted above is likely to be much smaller than their proponents might have thought. (shrink)