According to the classical Doctrine of Double Effect, there is a morally significant difference between intending harm and merely foreseeing harm. Versions of DDE have been defended in a variety of creative ways, but there is one difficulty, the so-called “closeness problem”, that continues to bedevil all of them. The problem is that an agent's intention can always be identified in such a fine-grained way as to eliminate an intention to harm from almost any situation, including those that have been (...) taken to be paradigmatic instances in which DDE applies to intended harm. In this paper, we consider and reject a number of recent attempts to solve the closeness problem. We argue that the failure of these proposals strongly suggests that the closeness problem is intractable, and that the distinction between intending harm and merely foreseeing harm is not morally significant. Further, we argue that there may be a deeper reason why such attempts must fail: the rationale that makes the best fit with DDE, namely, an imperative not to aim at evil, is itself irredeemably flawed. While we believe that these observations should lead us to abandon further attempts to solve the closeness problem for DDE, we also conclude by showing how a related principle that is supported by a distinct rationale and avoids facing the closeness problem altogether nevertheless shares with DDE its most important features, including an intuitive explanation of a number of cases and a commitment to the relevance of intentions. (shrink)

The doctrine of double effect, together with other moral principles that appeal to the intentions of moral agents, has come under attack from many directions in recent years, as have a variety of rationales that have been given in favor of it. In this paper, our aim is to develop, defend, and provide a new theoretical rationale for a secular version of the doctrine. Following Quinn (1989), we distinguish between Harmful Direct Agency and Harmful Indirect Agency. We propose the following (...) version of the doctrine: that in cases in which harm must come to some in order to achieve a good (and is the least costly of possible harms necessary), the agent foresees the harm, and all other things are equal, a stronger case is needed to justify Harmful Direct Agency than to justify Harmful Indirect Agency. We distinguish between two Kantian rationales that might be given for the doctrine, a “dependent right” rationale, defended by Quinn, and an “independent right” rationale, which we defend. We argue that the doctrine and the “independent right” rationale for it are not vulnerable to counterexamples or counterproposals, and conclude by drawing implications for the larger debate over whether agents' intentions are in any way relevant to permissibility and obligation. (shrink)

Unwitting omissions pose a challenge for theories of moral responsibility. For commonsense morality holds many unwitting omitters morally responsible for their omissions (and for the consequences thereof), even though they appear to lack both awareness and control. For example, some people who leave dogs trapped in their cars outside on a hot day (see Sher 2009), or who forget to pick something up from the store as they promised (see Clarke 2014) seem to be blameworthy for their omissions. And yet, (...) if moral responsibility requires awareness of one’s omission and of its moral significance, as well as control, then it would appear that the unwitting protagonists of these cases are not, in fact, morally responsible for their omissions. In this paper, we consider, and ultimately reject, a number of influential views that try to solve this problem, including skepticism about responsibility for such omissions, a view we call the “decision tracing” view that grounds responsibility for such omissions in previous exercises of conscious agency, and “attributionist” views that ground responsibility for such omissions in the value judgments or other aspects of the agents’ selves. We propose instead a new tracing view that grounds responsibility for unwitting omissions in past opportunities to avoid them, where having such opportunities requires general awareness of the risk of such an omission, but not an exercise of agency, in contrast to the decision tracing view. We argue that the view can better accommodate cases, and fits well with the most plausible conception of the kind of control required for responsibility. (shrink)

This volume explores the principles that govern moral responsibility and legal liability for omissions. Contributors defend different views about the ground of moral responsibility, the conditions of legal liability for an omission to rescue, and the basis for accepting a " for omissions in the criminal law.

Samuel Rickless presents a new account of Berkeley's controversial argument, and suggests it is the philosopher's greatest legacy: not only is it valid, but it may well be sound.

There is a mystery at the heart of Plato's Parmenides. In the first part, Parmenides criticizes what is widely regarded as Plato's mature theory of Forms, and in the second, he promises to explain how the Forms can be saved from these criticisms. Ever since the dialogue was written, scholars have struggled to determine how the two parts of the work fit together. Did Plato mean us to abandon, keep or modify the theory of Forms, on the strength of Parmenides' (...) criticisms? Samuel Rickless offers something that has never been done before: a careful reconstruction of every argument in the dialogue. He concludes that Plato's main aim was to argue that the theory of Forms should be modified by allowing that forms can have contrary properties. To grasp this is to solve the mystery of the Parmenides and understand its crucial role in Plato's philosophical development. (shrink)

In this paper, I argue that Book II, Chapter viii of Locke' Essay is a unified, self-consistent whole, and that the appearance of inconsistency is due largely to anachronistic misreadings and misunderstandings. The key to the distinction between primary and secondary qualities is that the former are, while the latter are not, real properties, i.e., properties that exist in bodies independently of being perceived. Once the distinction is properly understood, it becomes clear that Locke's arguments for it are simple, valid (...) and (in one case) persuasive as well. (shrink)

According to the Doctrine of Doing and Allowing, it is more difficult to justify doing harm than it is to justify allowing harm. Enabling harm consists in withdrawing an obstacle that would, if left in place, prevent a pre-existing causal sequence from leading to foreseen harm. There has been a lively debate concerning the moral status of enabling harm. According to some (e.g. McMahan, Vihvelin and Tomkow), many cases of enabling harm are morally indistinguishable from doing harm. Others (e.g. Foot, (...) Hanser) support the Equivalence Hypothesis, according to which enabling harm is morally equivalent to allowing harm. Here I argue that there is every reason to embrace, and no reason to reject, the Equivalence Hypothesis. (shrink)

o (2000), 243). In particular, the idea is that binding interactions between the relevant expressions and natural lan- guage quantifiers are best explained by the hypothesis that those expressions harbor hidden but bindable variables. Recently, however, Herman Cappelen and Ernie Lepore have rejected such binding arguments for the presence of hid- den variables on the grounds that they overgeneralize — that, if sound, such arguments would establish the presence of hidden variables in all sorts of ex- pressions where it is (...) implausible that they exist (Cappelen and Lepore (2005), Cappelen and Lepore (2002)).1 In what follows we respond to Cappelen’s and Lepore’s attempted reductio by bringing out crucial disanalogies between cases where the binding argument is successful and cases where it is not. But we have a deeper purpose than merely to respond to Cappelen and Lepore: we think the attempted reductio goes wrong by not taking sufficiently seriously the nature of the binding relation that holds between quantifiers and arguments/variables, and that our criticism will serve to highlight the nature and importance of this relation. (shrink)

The vast majority of philosophers and legal theorists who have thought about the issue agree that there is such a thing as a moral right to privacy. However, there is little or no theoretical consensus about the nature of this right. According to reductionists, the right to privacy amounts to nothing more than a cluster of property rights and rights over the person, and therefore plays no autonomous explanatory role in moral theory (Thomson 1975, Davis 1959). Among non-reductionists, there are (...) almost as many accounts of the right to privacy as there are synagogues in the old town of Jerusalem. For one group of non-reductionists (perhaps the majority), the right to privacy is properly understood as a right of control, a form of autonomy. Within this group, some think that the right to privacy is the right to control information about oneself (Westin 1967, Beardsley 1971, Gerstein 1978, Fried 1970, Moore 2003), while others insist that it is the right to control access to oneself (Parker 1974, Scanlon 1975, Rachels 1975, Reiman 1976, Van den Haag 1971). For another group of non-reductionists, the right to privacy is the right to cognitive and/or physical inaccessibility (Gavison 1980, Garrett 1974, Allen 1988). Though these are by far the most widely adopted non-reductionist accounts of the relevant right, they are by no means the only ones currently on offer. There are hybrid accounts according to which the right to privacy is a cluster of various rights of control (Inness 1992) or a cluster of various rights of control and restricted access (DeCew 1997). And according to an influential “information-based” account, the right to privacy 1 is defined as the right that others not possess undocumented personal information about the right-holder (Parent 1983a; 1983b). The purpose of this paper is to bring some order to this theoretical chaos. On my view, none of these accounts of the right to privacy is accurate.. (shrink)

In this paper, I provide what I believe to be Descartes's own solution to the problem of the Cartesian Circle. As I argue, Descartes thinks he can have certain knowledge of the premises of the Third Meditation proof of God's existence and veracity (i.e., the 3M-Proof) without presupposing God's existence. The key, as Broughton (1984) once argued, is that the premises of the 3M-Proof are knowable by the natural light. The major objection to this "natural light" gambit is that Descartes (...) identifies the natural light with the faculty of clear and distinct perception, a faculty that cannot be known to be reliable in advance of the 3M-Proof. I explain that Descartes distinguishes between three kinds of clear and distinction perceptions depending on their source; the senses, the imagination, or the intellect. I claim that although the First Meditation is designed to cast doubt on the clear and distinct perceptions of the senses and of the imagination, it is not designed to cast doubt on the clear and distinct perceptions of the intellect. The "natural light" gambit relies on the assumption that the natural light, by which propositions can be certainly known without presupposing knowledge of God's existence, is to be identified with the faculty of *intellectual* clear and distinct perception. (shrink)

This article describes and defends an inclusive anti-canonical approach to the study of the history of philosophy. Its proposal, based on an analysis of the nature of the history of philosophy and the value of engaging in the practice, is this: The history of philosophy is the history of rationally justified, systematic answers to philosophical questions; studying this subject is both intrinsically and instrumentally valuable; these benefits do not derive from the imposition of a canon—indeed, there should be no canon; (...) the absence of a canon leaves room for a thousand courses on a thousand different topics with a thousand different narrative structures; but a good syllabus should be relevantly diverse in a way that fits the thematic arc of the course; and this prescription for the discipline is inclusive, in ways that can only strengthen and enliven it for future generations. (shrink)

In Book II, Chapter xxi of An essay concerning human understanding, Locke claims that a mind's will is its power 'to order the consideration of any Idea, or the forbearing to consider it; or to prefer the motion of any part of the body to its rest, and vice versa in any particular instance' (Il. xxi. 5).l To exercise this power (that is, to will), Locke says, is to perform an act of volition (or: willing), volitions being actions of the (...) mind directed to the performance of other actions (of the mind or body). Locke claims further that a man's being free (or at liberty) with respect to some action A is his having the power to perform or to forbear performing A according to his volition in the matter (8). Thus, X is free with respect to A if and onty if (i) X is able to perform A if he wills to perform A and (ii) X is able not to perform A if he wills not to perform A. This analysis of freedom. (shrink)

The various proponents of the DDA differ over how it should be understood. It might be thought that the distinction between doing and allowing reduces to the distinction between action and inaction. As against this, Philippa Foot has argued that some actions, such as pulling the plug on an artificial respirator, should be treated as “allowings.” On her view, the relevant distinction is primarily one between initiating or sustaining a harmful causal sequence, and allowing or enabling a harmful causal sequence (...) to run its course. The view that this is the proper interpretation of the DDA has been challenged by Warren Quinn, who argues that Foot’s distinction either fails to account for our considered intuitions in some cases or collapses back into the action/inaction distinction. Quinn offers an interpretation of the DDA that is closer to the action/inaction distinction, but in which intentions are made to play a significant role. (shrink)

In this paper, we defend the general thesis that intentions are relevant not only to moral permissibility and impermissibility, but also to criminal wrongdoing, as well as a specific version of the Doctrine of Double Effect that we believe can help solve some challenging puzzles in the criminal law. We begin by answering some recent arguments that marginalize or eliminate the role of intentions as components of criminal wrongdoing [e.g., Alexander and Ferzan, Chiao, Walen ]. We then turn to some (...) influential theories that articulate a direct role for intentions [e.g., Duff, Husak ]. While we endorse the commitment to such a role for intentions, we believe that extant theories have not yet been able to adequately address certain objections or solve certain puzzles, such as that some attempt convictions require criminal intent when the crime attempted, if successful, requires only foresight, and that some intended harms appear to be no more serious than non-intended ones of the same magnitude, for example. Drawing on a variety of resources, including the specific version of the Doctrine of Double Effect we have developed in recent published work, we present solutions to these puzzles, which in turn provide mutual support for our general approach to the role of intentions and for thinking that using others as means is itself a special kind of wrongdoing. (shrink)

In the 17th century, there was a lively debate in the intellectual circles with which Locke was familiar, revolving around the question whether the human mind is furnished with innate ideas. Although a few scholars declared that there is no good reason to believe, and good reason not to believe, in the existence of innate ideas, the vast majority took for granted that God, in his infinite goodness and wisdom, has inscribed in human minds innate principles that constitute the foundation (...) of knowledge, as well in practical as in theoretical matters. It was in opposition to the latter group, which included Descartes, leading Anglican divines, and the Cambridge Platonists, that Locke directed his attack upon innate ideas in the first book of the Essay.1 In the minds of those who weighed in on one side or the other, the importance of the controversy related to epistemological, moral, and religious doctrines. At the epistemological level, innatists (or, as I will also call them, nativists) held that all knowledge of the natural and supernatural world available to humans is based on fundamental “speculative” axioms, theoretical principles that neither require nor are capable of proof. These principles, such as the causal principle – that nothing comes from nothing – or the principle of non-contradiction – that nothing can both be and not be at the same time, were taken to be both universal and necessary, and hence impossible to derive from experience. To the mind of an innatist, if these principles are not based on experience and are not (as chimerical ideas were thought to be) constructed out.. (shrink)

George Berkeley maintains both anti-abstractionism (that abstract ideas are impossible) and idealism (that physical objects and their qualities are mind-dependent). Some scholars (including Atherton, Bolton, and Pappas) have argued, in different ways, that Berkeley uses anti-abstractionism as a premise in a simple argument for idealism. In this paper, I argue that the relation between anti-abstractionism and idealism in Berkeley's metaphysics is more complex than these scholars acknowledge. Berkeley distinguishes between two kinds of abstraction, singling abstraction and generalizing abstraction. He then (...) rests his case for idealism, not on the denial of the possibility of generalizing abstraction, but rather on the denial of the possibility of singling abstraction. Moreover, Berkeley's argument does not rest on a blanket rejection of all forms of singling abstraction. Rather, the fundamental anti-abstractionist assumption, for his purposes, is the claim that primary qualities cannot be mentally singled out from secondary qualities. Crucially, the claim that the existence of physical objects cannot be mentally singled out from their being perceived is not a premise in, but rather a consequence of, Berkeley's argument for idealism. Berkeley's argument therefore avoids circularity inasmuch as it appeals to the impossibility of singly abstracting one idea in order to establish the impossibility of singly abstracting another. (shrink)

There are two major semantic theories of proper names: Semantic Descriptivism and Direct Reference. According to Semantic Descriptivism, the semantic content of a proper name N for a speaker S is identical to the semantic content of a definite description “the F” that the speaker associates with the name. According to Direct Reference, the semantic content of a proper name is identical to its referent. Semantic Descriptivism suffers from a number of drawbacks first pointed out by Donnellan (1970) and Kripke (...) (1972). Direct Reference faces difficulties of its own, most importantly the problem of empty names. The most promising Directly Referential solution to this problem is the Unfilled Proposition view, according to which utterances of sentences containing empty names semantically express unfilled propositions. But this view faces the problem of accounting for the intuition that negative existentials involving empty names are true. The most promising way of dealing with this problem within Unfilled Proposition theory is to suppose (i) that utterances of sentences may be used to pragmatically convey propositions they do not semantically express, and (ii) that the proposition pragmatically conveyed by a speaker S's utterance of a sentence containing an empty name N (where “the F” is a definite description S associates with N) is identical to the proposition semantically expressed by an utterance of the sentence obtained by replacing N with “the F”. Call this view “Pragmatic Descriptivism”. With respect to the problem of negative existentials, Pragmatic Descriptivists can insist that, although an utterance of “Santa does not exist” is literally neither true nor false, our taking it to be true may be explained as the result of our having confused the unfilled proposition it semantically expresses with the clearly true descriptive proposition it pragmatically conveys. Despite its theoretical virtues, Pragmatic Descriptivism has recently come under fire. Everett (2003), in particular, has advanced four different lines of criticism, to which Adams and Dietrich (2004) have responded in some detail. In this article, I have two main aims. The first is to argue that Adams and Dietrich's replies to Everett's criticisms (with one exception) are ineffective. I conclude that there is no acceptable strategy for solving the problem of empty names within Direct Reference theory. The second is to argue that there is a promising alternative to Semantic Descriptivism and Direct Reference that requires us to fill unfilled propositions with names, thereby solving the problem of empty names. (shrink)

In the First Section of the Groundwork of the Metaphysics of Morals, Kant argues that a good-willed person “under subjective limitations and hindrances” (G 397) is required “never to act except in such a way that [she] could also will that [her] maxim should become a universal law” (G 402).2 This requirement has come to be known as the Formula of Universal Law (FUL) version of the Categorical Imperative, an “ought” statement expressing a command of reason that “represent[s] an action (...) as objectively necessary of itself, without reference to another end” (G 414). The question of how to understand and apply the FUL has received a great deal of attention in recent years. But Kant’s reasoning for the claim that a good-willed person (of a certain kind) acts in accordance with the FUL has not been investigated with the same degree of thoroughness. My purpose in this paper is to render the structure of Kant’s argument perspicuous, and thereby contribute to its proper evaluation by identifying its true strengths and weaknesses.3 Let us call Kant’s argument “K” and its conclusion “C”. The task at hand requires identification of K’s premises and of the reasoning by means of which C is derived. One of the advantages of clarifying K’s structure in this way is that doing so permits us to answer questions that continue to puzzle even the most sympathetic readers of the First Section. Some of these questions concern three “Propositions” to which Kant 1 draws our attention in the course of his presentation. The First Proposition (call it “P1”) is left unstated, but most commentators agree that it (or at least part of it) should be rendered as follows: (P1) A human action has moral worth only if it is done from duty.4 Kant states the other two propositions (call the Second “P2” and Third “P3”) explicitly: (P2) An action from duty has its moral worth not in the purpose to be attained by it but in the maxim in accordance with which it is decided upon. (G 399). (shrink)

(2013). Hume's Theory of Pity and Malice. British Journal for the History of Philosophy: Vol. 21, No. 2, pp. 324-344. doi: 10.1080/09608788.2012.692664.

One of the more interesting philosophical debates in the seventeenth century concerned the nature and explanation of qualities. In order to understand these debates, it is important to place them in their proper historical-philosophical context. This book chapter starts with theoretical background in the work of Aristotle and the atomists, and then moves on to survey various theories of motion and rest, light, color, and sound, as well as the distinction between primary and secondary qualities, as represented in the work (...) of such figures as Berkeley, Boyle, Charleton, Cordemoy, Descartes, Desgabets, Galileo, Gassendi, Hobbes, Locke, Malebranche, Newton, Régis, Rohault, and Sennert. (shrink)

In 1827, Lady Mary Shepherd published Essays on the Perception of an External Universe, which offers both an argument for the existence of a world of external bodies existing outside our minds and a criticism of Berkeley's argument for idealism in A Treatise Concerning the Principles of Human Knowledge. In this paper, I evaluate Margaret Atherton's criticisms of Shepherd's case against Berkeley, and provide reasons for thinking that, although Shepherd's particular criticisms of Berkeley do not succeed, she correctly identifies an (...) important problem to which Berkeley's reasoning is subject. (shrink)

The Parmenides is, quite possibly, the most enigmatic of Plato's dialogues. The dialogue recounts an almost certainly fictitious conversation between a venerable Parmenides (the Eleatic Monist) and a youthful Socrates, followed by a dizzying array of interconnected arguments presented by Parmenides to a young and compliant interlocutor named “Aristotle” (not the philosopher, but rather a man who became one of the Thirty Tyrants after Athens' surrender to Sparta at the conclusion of the Peloponnesian War). Most commentators agree that Socrates articulates (...) a version of the theory of forms defended by his much older namesake in the dialogues of Plato's middle period, that Parmenides mounts a number of potentially devastating challenges to this theory, and that these challenges are followed by a piece of intellectual “gymnastics” consisting of eight strings of arguments (Deductions) that are in some way designed to help us see how to protect the theory of forms against the challenges. Beyond this, there is precious little scholarly consensus. Commentators disagree about the proper way to reconstruct Parmenides' challenges, about the overall logical structure of the Deductions, about the main subject of the Deductions, about the function of the Deductions in relation to the challenges, and about the final philosophical moral of the dialogue as a whole. (shrink)

Starting in the second edition of the Essay, Locke becomes interested in the phenomenon of akrasia, or weakness of will. As he conceives it, akrasia occurs when we will something contrary to what we acknowledge to be our greater good. This commitment represents an important shift from the first edition of the Essay, where Locke argues that the will is always determined by a judgement of our greater good. But traces of the first-edition view are present even in the second (...) edition, so much so that it is unclear whether Locke is entitled to an explanation of akrasia at all. In this essay, we propose a new interpretation of Locke’s account of akrasia, one that mediates between his seemingly conflicting commitments. We believe that this interpretation represents an improvement over past interpretations, which make Locke’s conception of akrasia too weak to do the work he intends for it. Moreover, getting Locke’s account of akrasia right allows us to gain clarity on his view of the will, a subtle and ultimately quite plausible part of his moral psychology. (shrink)

There is a vast literature that seeks to uncover features underlying moral judgment by eliciting reactions to hypothetical scenarios such as trolley problems. These thought experiments assume that participants accept the outcomes stipulated in the scenarios. Across seven studies, we demonstrate that intuition overrides stipulated outcomes even when participants are explicitly told that an action will result in a particular outcome. Participants instead substitute their own estimates of the probability of outcomes for stipulated outcomes, and these probability estimates in turn (...) influence moral judgments. Our findings demonstrate that intuitive likelihoods are one critical factor in moral judgment, one that is not suspended even in moral dilemmas that explicitly stipulate outcomes. Features thought to underlie moral reasoning, such as intention, may operate, in part, by affecting the intuitive likelihood of outcomes, and, problematically, moral differences between scenarios may be confounded with non-moral intuitive probabilities. (shrink)

There are two major semantic theories of proper names: Semantic Descriptivism and Direct Reference. According to Semantic Descriptivism, the semantic content of a proper name N for a speaker S is identical to the semantic content of a definite description “the F” that the speaker associates with the name. According to Direct Reference, the semantic content of a proper name is identical to its referent. As is well known, Semantic Descriptivism suffers from a number of drawbacks first pointed out by (...) Donnellan (1970) and Kripke (1972).1 The first difficulty is semantic: in many cases, the definite description that S associates with N (if it denotes) denotes an entity other than the referent of N. The second difficulty is epistemic: in many cases, contrary to what Semantic Descriptivism predicts, an utterance of “N=the F” does not semantically express a proposition that is knowable a priori. And the third difficulty is modal: although Semantic Descriptivism entails that the proposition semantically expressed by an utterance of “N=the F” is metaphysically necessary, in many cases the relevant proposition is actually metaphysically contingent. Direct Reference faces three main difficulties of its own. First, there is the problem of cognitive significance (or, as it has come to be known, Frege’s Puzzle): if the content of a proper name is its referent, then different proper names have the same content, and hence utterances of “N=M” and “N=N” semantically express the same proposition; yet these two utterances differ in cognitive significance, and it would seem 1 that utterances semantically expressing the same proposition should not differ in cognitive significance. Second, there is the problem of substitution: if the content of a proper name is its referent, then co-referential proper names should be intersubstitutable in propositional attitude contexts salva veritate; yet linguistic intuitions suggest that substitution of co-referential proper names in such contexts often fails to preserve truthvalue.. (shrink)

Marc A. Hight has given us a well-researched, well-written, analytically rigorous and thoughtprovoking book about the development of idea ontology in the seventeenth and early eighteenth centuries. The book covers a great deal of material, some in significant depth, some not. The figures discussed include Descartes, Malebranche, Arnauld, Locke, Leibniz, Berkeley, and Hume. Some might think it a tall order for anyone to grapple with the central works of these figures on a subject as fundamental as the nature of ideas. (...) And while reading the book, I must admit to having had this thought a few times. Seventeen pages on Descartes’ theory of ideas, covering the development of his ontology of ideas, the distinction between formal reality and objective reality, the nature of mental representation, the contagion theory of causation, the doctrine of innate ideas as ungrounded dispositions, and the interactionism/occasionalism controversy? Wow. And yet Hight has done his homework. He knows the figures and the relevant interpretive controversies well, he focuses on many of the passages that are relevant to the book’s central thesis, and in the end offers us a compelling narrative as an alternative to what he identifies as “the traditional view of what transpired in the early modern period” (2). (shrink)

Plato's Parmenides divides up into two main parts, the first ostensibly devoted to a series of criticisms launched by a venerable Parmenides against a theory of Forms previously articulated by a youthful Socrates, the second consisting of a virtually unbroken series of deductions to seemingly incompatible conclusions. As such, the dialogue poses a serious interpretative challenge, for it is unclear what conclusions Plato expected his readers to draw from both parts and how the conclusion of Part II is supposed to (...) bear on the conclusion of Part I. (shrink)

When faced with a dispute concerning how a given legal provision (whether constitutional or statutory) applies to a particular set of facts, how should a judge proceed? It is commonplace to say that, in the first instance, she should look to the meanings of the words that constitute the provision itself. If she is lucky, then the relevant meanings are clear; and if the facts are not in dispute, then the resolution is obvious. Unfortunately.