s the very existence of government morally problematic? Is government morally problematic, that is, in a way that a “state of nature” is not? Many political philosophers have thought so. I will argue that they are wrong. If that seems too easy, I also will argue that the modern welfare state is no more problematic, morally, than a minimal, “nightwatchman” state. (If all of this seems too easy, I hope to convince you that it is not as easy as you (...) might think.) One vivid way of conveying the idea that government is prima facie wrongful is by employing a metaphor. Just as the gunman, who takes our money upon threat of violence, acts wrongfully, so also the state acts wrongfully by exacting its citizens’ obedience by threatening punishment; the state is simply the gunman writ large.1 Compare the following cases. (shrink)
Urban sprawl and aggressive driving are two problems that afflict many of America’s major cities. The two affect Atlanta to a notoriously high degree. The two problems are connected. Aggressive driving is not so much a symptom of “road rage” as it is an attempt to communicate with slower drivers. The aggressive driver tailgates other drivers with the intention of letting them know that they are impeding the flow of faster traffic. Aggressive drivers are engaged in what “New Chicago School” (...) legal theory calls “norm seeding.” These drivers are trying to get others to conform to a different norm than what the posted speed limit dictates. The posted speed limit, which is the legal norm, reflects legislative judgments based on concerns of safety and fuel economy. The higher, informal, speed limit reflects something else: the impatience many drivers feel as they drive larger distances and spend correspondingly greater amounts of time in traffic. (shrink)
Coherentism, in philosophy generally, is of either an epistemological or a metaphysical type. The epistemological type responds to worries about foundationalism that have no serious counterpart within the philosophy of law. The metaphysical type is implausible generally, but has been put to use within the philosophy of law - by Ronald Dworkin in particular - to close up "gaps" in the law that provide an opening for purportedly worrisome exercises of judicial discretion. These remarks conclude with the suggestion that the (...) conception of political legitimacy that underlies such worries is crude and unwarranted. (shrink)
That law is coercive is widely assumed. The assumption has important consequences. What we regard as coercive we view as at least prima facie illegitimate, and we hold it to an accounting. What is not coercive, in contrast, is presumed to be in order. To be able to cast the law (or the free market) as a coercive force is to be able to throw upon its defenders a burden of persuasion which, even if carried, leaves what has had to (...) be defended under a cloud. Where, as in morality and politics, so much is uncertain, to be able to cast a burden of persuasion upon one's opponent is a significant rhetorical advantage. In recent decades, the concept of coercion has been subjected to rigorous analysis. This article applies that analytical work to the question that forms the title. The answer that it reaches is not a reassuring "Of course!" but a surprising - some would say, repugnant - "No; except in extraordinary circumstances law is not coercive.". (shrink)
Morality as we know it seems inextricably involved with notions of responsibility, desert, and blame. But a number of philosophers (e.g., Pereboom, G. Strawson) have concluded that responsibility in the desert-supporting sense rests upon metaphysical presuppositions that are unsatisfiable whether or not determinism is true. Some of these philosophers go on to argue that we ought - morally ought - to discard the idea of moral responsibility. Is this proposal coherent? Could morality intelligibly be practiced in a way that dispenses (...) altogether with praise, blame, resentment, and desert - the concepts that constitute what we understand as holding agents morally responsible for their deeds? I distinguish three aspects of moral practice, which I term "naming," "shaming," and "blaming." Of the three, only the last, blaming, implicates the idea of moral - as opposed to merely causal - responsibility. I defend what I term the "Enlightened View" that accepts naming and shaming as essential to morality, but holds blaming to be inessential. I distinguish the Enlightened View from the "Abolitionist View" that holds blaming to be not merely inessential to morality but undesirable and unworthy. Crucial to the defense of the Enlightened View is an account of moral guidance restricted to the devices of naming and shaming. This discussion uncovers a very weak sense of blame and desert implicit in the practice of morality - one too weak to require any major qualification of the Enlightened and Abolitionist Views. I conclude by defending the Enlightened View against the charge (by e.g. Smilansky) that it would diminish our conception of ourselves as persons. (shrink)
The late Jerry Cohen struggled to reconcile his egalitarian political principles with his personal style of life. His efforts were inconclusive, but instructive. This comment locates the core of Cohen’s discomfort in an abstract principle that connects what we morally ought to be compelled to do and what we have a duty to do anyway. The connection the principle states is more general and much tighter than Cohen and others, e.g. Thomas Nagel, have seen. Our principles of justice always put (...) our personal integrity to the test, unless those principles are designed not to. But to craft principles with an view to avoiding that test is, as Cohen argued, itself to undermine both justice and our integrity. (shrink)
Political authority is the moral power to impose moral duties upon a perhaps unwilling citizenry. David Enoch has proposed that authority be understood as a matter of "robust" duty-giving. This paper argues that Enoch's conditions for attempted robust duty- or reason-giving are, along with his non-normative success condition, implausibly strong. Moreover, Enoch's attempt and normative- success conditions ignore two facts. The first is that success requires that citizens be tolerant of modest errors by the authority, which means that, in conditions (...) of modest error, performing as directed must have a non-instrumental, intrinsic value. The second is that an attempt to exercise authority involves an intention to trigger a moral principle endowing conforming performances with intrinsic value. The mystery of political authority is the mystery of how official directives could possibly suffice to endow conforming performances with intrinsic value. (shrink)
Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, and predictability" (...) in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it. (shrink)
Aristotle thought we are by nature political animals, but the state-of-nature tradition sees political society not as natural but as an artifice. For this tradition, political society can usefully be conceived as emerging from a pre-political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives. A state-of-nature theory has three (...) components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. State-of-nature theories disagree about the NNE. For Locke, it included a “natural executive right” to punish wrongdoing. Recent social scientific findings suggest a quite different NNE. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. The social science can support two claims. One, is that the NNE is (as Aristotle held) already political. The other is that political authority can be re-conceived as a matter of standing—that is, as the state's unique moral permission coercively to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience. (shrink)
Consent theories of political obligation draw upon the unique powers consent exhibits in everyday dealings, but they are frustrated by the "problem of massive nonconsent." Expansions of what is counted as consent, such as tacit or hypothetical consent, have seemed untrue to the core concept of giving willing consent. David Estlund proposes a novel conception, "normative consent," to address the problem of massive nonconsent while being true to "the idiom of consent." This comment details consent’s virtues and shows that consent (...) theories cannot claim enough of them to vindicate political obligation. (shrink)
��Three concepts—authority, obedience and obligation—are central to understanding law and political institutions. The three are also involved in the legitimation of the state: an apology for the state has to make a normative case for the state’s authority, for its right to command obedience, and for the citizen’s obligation to obey the state’s commands. Recent discussions manifest a cumulative scepticism about the apologist’s task. Getting clear about the three concepts is, of..
Pluralism is an appealing and now orthodox view of the sources of value. But pluralism has led to well-known difficulties for social-choice theory. Moreover, as Susan Hurley has argued, the difficulties of pluralism go even deeper. In 1954, Kenneth May suggested an intrapersonal analogue to Arrow's Impossibility Theorem. In brief, May showed that an individual's response to a plurality of values will, given certain additional assumptions, lead to intransitive preference orderings. (Daniel Kahneman and others have shown that intransitivity is an (...) empirical feature of preferences.) Hurley challenged May's additional assumptions as implausibly strong; but her work did not exclude the possibility that values may disobey the canon of rationality that insists on transitivity. John Broome has recently extended these canons to the "betterness" relation. This chapter argues that there is no good reason to be confident that values, understood as real features of the world, behave consistently with those canons. (shrink)
The last half-century has seen a steady loss of confidence in the defensibility of a duty to obey the law — even a qualified, pro tanto duty to obey the laws of a just or nearly just state. Over roughly the same period, there has been increasing interest in virtue ethics as an alternative to the dominant consequentialist and deontological approaches to normative ethics. Curiously, these two tendencies have so far only just barely linked up. Although there has been discussion (...) of the question whether patriotism should be considered a virtue, and abstract discussion about the virtuous person’s relation to authority and justice in general, there has been little virtue-oriented discussion having specific reference to the kinds of difficulties that have motivated the ascendant skepticism about political obligation. This silence has persisted despite repeated calls for renewed work on “virtue politics”. This article proposes and defends a preliminary account of law-abidance (as contrasted to obedience) as a virtue. It argues that a virtue-theoretic account of our relation to the law offers advantages that are not contingent upon the independence or priority of the virtues with respect to consequentialist and deontological components of a complete moral theory. Chief among these advantages is the promise of an alternative to the deadlocked positions taken by apologists for the duty to obey the law and their philosophical-anarchist critics — positions which have tacitly been assumed to exhaust the viable possibilities. (shrink)
The everyday virtue of civility functions as a constraint upon informal social pressures. Can civility also be understood, as John Rawls has proposed, as a distinctively political constraint? I contrast Rawls's project of constraining the political with Mill's of constraining both the social and the political, and explore Rawls's account of the relation between the two. I argue that Rawls's political duty of civility rests on the assumption that the political is peculiarly coercive; ignores the social enforcement of morality; and (...) implausibly has civility apply to motives in acting, rather than to actions. (shrink)
Contextualism answers skepticism by proposing a variable standard of justification, keyed to the context of utterance. A lawyer's situation with respect to a criminal defendant's factual guilt is a special one. The argument here is that in this special context an especially high standard of epistemic justification applies. The standard is even more exacting than the proof-beyond-reasonable-doubt standard that juries are sworn to follow. The upshot is that criminal defense lawyers normally cannot know that a client is factually guilt.
Proponents and opponents of the death penalty both typically assume that punishment, in some form or other, is justified, somehow or other, and that just punishment must in some sense be proportionate to the crime. These shared assumptions turn out to embarrass both parties. Proponents have to explain why certain prima facie proportionate punishments, such as torture, are off the table, while death remains, so to speak, on it. Opponents have to explain why their favored alternatives to capital punishment, such (...) as life without parole, are both proportionate to the worst crimes and not as bad as death. The commitment to proportionality makes trouble for both sides of the issue, and its resolution is unlikely until there is a satisfactory general account of proportionality in punishing. Such an account is nowhere in sight. (shrink)
It is commonly supposed that citizens of a reasonably just state have a prima facie duty to obey its laws. In recent years, however, a number of influential political philosophers have concluded that there is no such duty. But how can the state be a legitimate authority if there is no general duty to obey its laws? This article is an attempt to explain how we can make sense of the idea of legitimate political authority without positing the existence of (...) a general duty to obey the law. The explanation makes use of a distinction between laws of general application, on one hand, and on the other the particularized, directed efforts by state officials to channel and resolve disputes (including those arising from violations of the law). A state's legitimate authority entails a general duty to cooperate in the latter type of effort, rather than upon a dubious general duty to obey the law. (shrink)
This is a critical discussion of the Baldus study of capital sentencing in Georgia. It concludes that the Baldus finding of a "race-of-the-victim" effect is less robust than capital-punishment abolitionists have claimed. But the flaws in the Baldus study should not comfort death-penalty advocates, for they reveal an epistemological barrier to the US Supreme Court's ever being able to satisfy itself both that the sentence reflects particularized consideration of the circumstances and character of the defendant (mandated by Woodson v North (...) Carolina) and that it is not the product of racial bias (condemned in Furman v Georgia and Gregg v Georgia). (shrink)
This is a critical review of Death Penalties by constitutional scholar Raoul Berger. It rebuts Berger's argument that the Eighth Amendment "no cruel and unusual punishments" clause validates capital punishment.