This book offers a critical examination of those theories and advances a new argument for punishment's justification, calling it the 'duty view'.

In his recent book, Killing in War, Jeff McMahan sets out a number of conditions for a person to be liable to attack, provided the attack is used to avert an objectively unjust threat: (1) The threat, if realized, will wrongfully harm another; (2) the person is responsible for creating the threat; (3) killing the person is necessary to avert the threat, and (4) killing the person is a proportionate response to the threat. The present article focuses on McMahan's second (...) condition, which links liability with responsibility. McMahan's use of the responsibility criterion, the article contends, is too restrictive as an account of liability in general and an account of liability to be killed in particular. In order to defend this claim, the article disambiguates the concept of liability and explores its role in the philosophical analysis of the permission to cause harm to others. (shrink)

Many scholars are ready to accept that first person thought involves a special way w such that, for any thinker x, only x can access the first person way w of thinking about x. Standard articulations of this Frege-inspired view involve a rejection of the strict shareability of first person thought. I argue that this rejection eventually forces us to renounce an intuitively plausible characterisation of communication, and specifically, disagreement. This result invites us to explore alternative articulations which, still within (...) an overall Fregean framework, may better explain how first person thoughts reach out into a public, shareable dimension. Here I shape this possibility in terms of perspectives, i.e. ways of thinking that do not individuate concepts or thoughts. Perspectives, I submit, can serve to unproblematically accommodate basic disagreement in indexical cases and to outline the dynamic character of first person thought. (shrink)

Recent work in cerebral neurology should be used to fashion a new synthesis with anthropological studies. Beginning with Paul D. Madean's model of the triune brain, we explore Ralph Wendell Burhoe's question whether creative processes result from a coadaptation, perhaps in ritual itself, of genetic and cultural information. Then we examine the division of labor between right and left cerebral hemispheres and its implications for the notions of play and “ludic recombination.” Intimately related to ritual, play may function in the (...) social construction of reality analogous to mutation and variation in organic evolution. Finally, we consider how our picture of brain functioning accords with some distinctive features of the religious systems dominant in human cultures. (shrink)

One of the most interesting questions raised in Cecile Fabre’s Cosmopolitan War concerns war for the sake of resources. Fabre argues that it is sometimes permissible to go to war for the sake of resources that the poor are entitled to. I agree with this, but I think it is true only in very restricted circumstances. I consider a number of arguments in favour of resource wars, showing many of them to fail. The most promising argument, I suggest, is that (...) those who possess resources that have unjustly been secured are complicit in posing future threats by contributing to a market for unjustly secured resources. Whilst this argument has some promise, even it, I suggest, is in no way decisive. (shrink)

This essay is a response to the excellent contributions to the double special issue of Law and Philosophy on my book The Ends of Harm. I further defend the Duty View of punishment outlined in the book, responding to criticisms of that view. I also challenge the plausibility of retributivist accounts offered in response to the challenges to that view developed in The Ends of Harm.

According to moral non-naturalism, the kind of genuine or robust normativity that is characteristic of moral requirements cannot be accounted for within a wholly naturalistic worldview, but requires us to posit a domain of non-natural properties and facts. The main argument for this core non-naturalist claim appeals to what David Enoch calls the 'just-too-different intuition'. According to Enoch, robust normativity cannot be natural, since it is just too different from anything natural. Derek Parfit makes essentially the same claim under the (...) heading of 'the normativity objection', and several other non-naturalists have said similar things. While some naturalists may be tempted to reject this argument as methodologically or dialectically illegitimate, we argue instead that there are important limits to what the just-too-different intuition can show, even setting all other worries aside. More specifically, we argue that the just-too-different argument will backfire on any positive, independent specification of the distinction between the natural and the non-natural. The upshot is that the just-too-different argument can show significantly less than non-naturalists have suggested. (shrink)

Actions are uncontroversially public. However, the prevailing model of explanation in the debate about the de se seems to conflict with this fact by proposing agent-specific explanations that yield agent-specific types of action—i.e. types of action that no two agents can instantiate. Remarkably, this point affects both proponents and critics of the de se. In this paper, I present this kind of problem, characterise the proper level of analysis for action explanation compatible with the publicity of action—i.e. the agent-bound level—and (...) suggest that acknowledgement of this level highlights two important amendments of contemporary views. First, sceptics must accept that, when explanation is attitude-involving, the attitudes mentioned in the explanation of action must refer to the agent. Secondly, and perhaps more surprisingly, proponents of the de se should seek for accounts of de se attitudes that are not confined to a specific agent and are, therefore, sharable across agents. (shrink)

Theorists of first person thought seem to be faced with a pervasive dilemma: either accept the view that varying reference and sense are bound up together in first person thought, but then reject person-to-person shareability; or else, maintain the shareability of first person thought or belief at the price of giving up the connection between sense and subject-to-subject changing reference. Here, the author will argue that this is, in fact, a spurious dilemma based largely upon a failure to appreciate, if (...) not the existence, at least the crucial importance of the distinction between types, instantiable types and instantiated types of thought or belief. Only the level of the instantiable type is relevant for a proper assessment of the question of whether two different subjects have the same first person thought. (shrink)

This new Encyclopedia of Postmodernism is structured with biographical entries on all the key contributors to the postmodernism debate, including Mikhail Bakhtin, Pierre Bourdieum, Jacques Derrida, Jurgen Habermas and Wittgenstein. Providing an all-encompassing and welcome addition to the field, the Encyclopedia contains entries on foundational concepts of postmodernism which have revolutionized thinking in every intellectual discipline. This new Encyclopedia is the first to provide comprehensive A-Z coverage of the key individuals and concepts of postmodernism. The 300+ entries include: * African (...) American studies * Roland Barthes * binary opposition * Buddhism * comparative literature * cyberculture * death of God * Gilles Deleuze * desire * digital culture * end of history * globalization * grand narrative * improvisation * jouissance * logocentrism * metalanguage * sadism * theatre arts * trope * visuality * Cornell West * and much more. Fully cross-referenced and indexed, with suggestionsfor further reading. (shrink)

This article clarifies and further defends the view that the right to be presumed innocent until proven guilty, protected by Article 6(2) of the European Convention of Human Rights has implications for the substantive law. It is shown that a ‘purely procedural’ conception of the presumption of innocence has absurd implications for the nature of the right. Objections to the moderate substantive view defended are considered, including the acceptability of male prohibits offences, the difficulty of ascertaining intentions of legislatures and (...) the proper role of prosecutorial discretion. (shrink)

Recent philosophical developments on personal indexicals reveal a disagreement between those who defend and those who deny the existence of a distinctive class of second person thoughts. In this piece, I tackle this controversy by highlighting two crucial constraints based on paradigmatic felicitous singular uses of the second person pronoun. On the one hand, the Addressing Constraint is brought out by the awareness and action capabilities displayed in successfully addressing another. On the other hand, the Merging Constraint arises, among other (...) things, from the fact that ‘I’/‘you’-exchanges ground intersubjective disagreement. Once these constraints are fully in view, I go on to show that they pose a challenging dilemma for any account of the second person and that the chasm between friends and foes of the distinctness of second person thought is better seen as endorsements of one of the horns of the dilemma. In reaction to this, I outline a way of accommodating both constraints in terms of ‘perspectives’, i.e. ways of thinking of a reference that do not individuate a thought. On the recommended approach, the second person perspective is cognitively distinctive but does not itself signal the existence of a distinctive second person type of thought. By contrast, a single type of thought about selves expressible with personal indexicals—the self-thought type—can be shown to comprise the third, the second and, perhaps surprisingly, the first person perspective. Unlike other perspectival approaches, the here proposed analysis relies on an elucidation of perspectives in terms of specific information on which a thinker draws made available by a concept-individuating reference rule. (shrink)

Sometimes Strauss argues as if he thought it possible to understand man without raising questions about his relations to other things, and hence about his place in the whole. But when they are viewed in their broader context, such arguments are seen not to be his final word. Man's humanity cannot be understood in its own terms alone. The human soul differs from everything else in that it is "... open to the whole and therefore more akin to the whole (...) than anything else is." In ordinary usage, "whole" implies completeness and autonomy. But the openness of the soul--i.e., of a part--to the whole can only mean that the whole is open to itself. The whole is, then, not, in the ordinary sense of the term, whole. Nor is the soul which is "open" to it. Stripped of myths, "... the human soul is... more akin to the whole than anything else is" because neither of them is whole. The same conclusion follows when one tries to understand the definition of the philosopher as the man animated by quest for knowledge of the whole. Qua philosopher he knows neither that there is a whole, nor what it might be if there were one. To define the philosopher as the man who knows that he does not know only paraphrases the difficulty. It does not solve it. For "know" is here used equivocally. The same equivocation is at play in the comment "... one cannot know that one does not know without knowing what one does not know". Admittedly "knowledge of ignorance is not ignorance." The philosopher believes and perhaps divines more than he actually knows. All men do. The essential difference between the philosopher and other men may well consist in the fact that the philosopher distinguishes more conscientiously than do others between what he knows and what he believes, and that he strives more single-mindedly than do they to transform as large a share of his beliefs as possible into knowledge. He may conceivably at some point be said to have reached the stage where his aspirations have become reasoned expectations. But that is as far as he can possibly go as long as he remains a philosopher and has not become a wise man or a god. Until and unless the philosopher knows, in the strong sense of the term, he can no more decide whether his aspirations could be fulfilled than he can swim before getting wet. (shrink)

What are the laws of physics? -- The stuff that kicks back -- Point-of-view invariance -- Gauging the laws of physics -- Forces and broken symmetries -- Playing dice -- After the bang -- Out of the void -- The comprehensible cosmos -- Models of reality.

The article discusses some of the fundamental conceptual and theoretical aspects of rational choice and moral order. A distinction is drawn between constitutional interests and compliance interests, and it is argued that a viable moral order requires that the two interests somehow be brought into congruence. It is shown that with regard to the prospects for a spontaneous emergence of such congruence, a distinction between two kinds of moral rules which we call trust-rules and solidarity-rules is of crucial importance.

This article is a defence of a differentiated offence of rape. A differentiated offence is an offence which can be completed in a number of different ways that cannot be captured in a simple definition. It is argued that such an offence would meet several concerns that have been expressed in the feminist literature about the law of rape. It would assist certainty, it would reduce the extent to which the offence focuses on the conduct of the complainant, it would (...) allow the law to express that violence is central to the offence of rape where violence is present, but it would also allow convictions of rape where there is no violence. The argument is developed through critical engagement with the law of rape as set out in the Sexual Offences Act 2003. The Sexual Offences Act, it is argued, fails adequately to meet the concerns outlined above. (shrink)

On the face of it, On Tyranny is a straightforward commentary on Xenophon's dialogue Hiero or Tyrannicus. As such it is a very model of thoroughness and learning. It amply repays careful study, and it goes a long way toward explaining Strauss's influence in training a generation of scholars. The dialogue proper takes up just under 20 pages. Its analysis runs to 90-odd pages, followed by another 30 pages of tightly packed notes that are largely devoted to parallels between the (...) Hiero, Xenophon's teaching as a whole, and the teachings of Plato, of Aristotle and, to a lesser extent, of Cicero. What at first appears as an exercise in textual analysis soon reveals itself as a much broader undertaking: the delineation of the main features of classical political philosophy. Strauss does not mean to deny that differences in perspective, procedure, and even conclusions separate the major representatives of classical political philosophy. He does want to maintain, however, that their agreements are more fundamental than are their differences. But even this is incidental to his main purpose: to understand classical political philosophy for the guidance it might provide in understanding the great moral and political problems that confront us here and now. He conceives of these problems in large measure as the consequence of modern philosophy, of what he calls "the modern project." But modern philosophy cannot be understood on its own terms alone any more than it can be understood by directly confronting it with the phenomena. For it does not owe its most characteristic features to such a confrontation. It owes them, rather, to the fact that, from its very outset, it defined itself in explicit contrast to classical philosophy. Modern philosophy is essentially derivative. It presupposes the tradition it opposes. Classical philosophy, and in particular classical political philosophy, on the other hand "... belongs to the fertile moment when all political traditions were shaken, and there was not yet in existence a tradition of political philosophy." Hence "only in the light of the quarrel between the ancients and the moderns can modernity be understood. By rediscovering the urgency of this quarrel we return to the origins of modernity." It further follows from this line of reasoning that the quarrel must be re-kindled if we are once again to gain access to the phenomena themselves. To this end historical studies become necessary which do not presuppose that the whole issue has, for all intents and purposes, been settled in favor of the moderns. The most basic and most constant assumption of Strauss's historical studies is, therefore, the assumption that classical philosophy is truer than are any of the teachings that criticize or reject it. The passion and the inventiveness with which he defends this assumption sufficiently prove that he does not put it forward merely for reasons of method or of rhetoric. Yet it seems to fall short of being his settled belief. By stressing his agreements with the ancients and his disagreements with the moderns, by holding the moderns responsible for the great problems that face us while calling for a restoration of classical political philosophy, he fosters the impression that his own views coincide fully with those of classical political philosophy. But even if classical political philosophy spoke with a single clear voice, the fact remains that "no competent man of our age would regard as simply true the complete teaching of any thinker of the past." Presumably only someone who thinks himself competent would issue such a warning. (shrink)

From Fodor and Pylyshyn’s celebrated 1988 systematicity argument in favour of a language of thought , a challenge to connectionist models arises in the form of a dilemma: either these models do not explain systematicity or they are implementations of LOT. From consideration of this challenge and of systematicity in domains other than language, defenders of connectionism have mounted a parallel systematicity argument against LOT which results in a new self-defeating dilemma, what I call here the systematicity challenge challenge : (...) either LOT does not explain nonlinguistic systematicity, or it is in no better position than its rivals to explain any systematicity, even linguistic systematicity. In this paper, first, I critically examine the SCC and some considerations that seem to support it. Second, I offer a response to the SCC by: showing that LOT was never meant to be a cognitive model restricted only to linguistic systematicity, and formulating a new argument in favour of LOT from nonlinguistic systematicity. Third, I argue that there is a central assumption underlying the SCC and maintain that it is mistaken. I conclude that the classical systematicity challenge continues to be fully valid for linguistic and nonlinguistic domains. (shrink)

This article attempts to re-establish the importance of Foucault's work for an understanding of the way in which modern law operates. This argument has two stages. Firstly, there is a critique of the interpretation of Foucault's work by legal and sociological thinkers. It is argued that by reading the term ‘juridical’ as synonymous with the term ‘law’ in Foucault, people miss the substance of Foucault's argument. The term juridical describes an arrangement and a representation of power rather than the law. (...) This is made clear through a critique of J. S. Mill's On Liberty which is shown to make a juridical distinction between power and a free space of action which is unsustainable. Secondly, Foucault's genealogy of power relations is recast from the perspective of a legal theoretician. Foucault's history of power relations is constructed from historical differences in the mode of operation of power and discourse. By analysing these differences and their relationship to the mode of operation of law, an account of the place of modern law in Foucault's genealogy is established. Modern law operates between Foucault's concepts of government and discipline. It provides a key way in which government decisions can adjust the relationships between disciplinary institutions. This introduces the idea that law begins to operate in the perspective of the complete lives of individuals rather than just to prevent certain actions. Law, then, operates in accordance with what Foucault calls ‘bio-power’. (shrink)

I am extremely grateful to Daniel Farrell, Hamish Stewart, Kasper Lippert-Rasmussen and Suzanne Uniacke for their careful, imaginative and probing responses to The Ends of Harm: The Moral Foundations of Criminal Law in this special issue of Criminal Law and Philosophy. It is especially gratifying that philosophers of this calibre, not all of whom have worked directly on the philosophy of punishment and the philosophy of criminal law, have engaged with Ends in this way.One of my ambitions in writing Ends (...) was to connect the philosophy of punishment more directly with a set of broader issues in normative ethics than is common in the philosophy of punishment. I hoped this would encourage others to see the justification of punishment as a small part of a more general normative theory of permissible harm. This special issue has further confirmed to me that this way of developing the philosophy of punishment is fruitful.I will not attempt to respond to all of the arguments i .. (shrink)

KANT HELD THAT NEWTON AND ROUSSEAU HAD REVEALED the ways of Providence: “After Newton and Rousseau, God is justified, and Pope’s thesis is henceforth true.”.

Adherents as well as detractors of the normativity of mental content agree that its assessment crucially depends on the assessment of a principle for believing what is true. In this paper, I present an alternative principle, which is based on possession conditions for pure thinking or mere entertaining. I argue that the alternative approach has not been sufficiently emphasised in the literature and has two important merits. First, it yields a direct analysis of the normativity of mental content, which is, (...) furthermore, independent of arguably non-normative notions such as truth. Second, the approach suggests new and challenging lines of response to central non-normativist objections. (shrink)

Two theories of excuses are currently popular in criminal law theory: the character theory and the capacity theory. In the former the defendant claims that although he performed a wrongful action, it did not properly reflect his character. In the latter, the defendant claims that although he performed a wrongful action he lacked the capacity to do otherwise. In John Gardner's view neither claim is adequate to provide the defendant with an excuse. Excuses, Gardner thinks, are only appropriate where the (...) defendant can claim that he has lived up to the standards reasonably to be expected of a person performing the role that the defendant was performing. The view defended here is that whilst the Gardner style excuse is an excuse, both of the claims that he rejects properly ground excuses in the criminal law as well. Furthermore, they do not exhaust the field of excuses. Excuses are best seen as defences that mop up where an application of the other rules of the criminal law would not adequately serve its principles. No further ordering of excuses is possible. (shrink)

From Fodor and Pylyshyn’s celebrated 1988 systematicity argument in favour of a language of thought (LOT ), a challenge to connectionist models arises in the form of a dilemma: either these models do not explain systematicity or they are implementations of LOT. From consideration of this challenge and of systematicity in domains other than language, defenders of connectionism have mounted a parallel systematicity argument against LOT which results in a new self-defeating dilemma, what I call here the systematicity challenge challenge (...) (SCC): either LOT does not explain nonlinguistic systematicity, or it is in no better position than its rivals to explain any systematicity, even linguistic systematicity. In this paper, first, I critically examine the SCC and some considerations that seem to support it. Second, I offer a response to the SCC by: (1) showing that LOT was never meant to be a cognitive model restricted only to linguistic systematicity, and (2) formulating a new argument in favour of LOT from nonlinguistic systematicity. Third, I argue that there is a central assumption underlying the SCC and maintain that it is mistaken. I conclude that the classical systematicity challenge continues to be fully valid for linguistic and nonlinguistic domains. (shrink)

While belief in gods was almost universal in the ancient world, Thales of Miletus introduced the notion that observed phenomena could be explained in natural terms without invoking imagined spirits. Leucippus and Democritus, and later Epicurus and Lucretius, proposed that everything was composed of particulate atoms in an otherwise empty void. Any gods that existed played no role in the human world. The universe was infinite, eternal, uncreated, and included many worlds besides our own. These ideas conflicted with the other (...) philosophical schools of the time and were suppressed by the Church during the Dark Ages. Atomism reappeared during the Renaissance and became a crucial ingredient in the scientific revolution that followed. The atomic picture of matter has now been solidly confirmed. Furthermore, the notion of an infinite, eternal, and uncreated ‘multiverse’ is strongly suggested by modern cosmology. (shrink)

The structure of pluralist arguments -- The inadequacy of multiculturalism -- The incompatibility of subsidiarity -- Associative democracy and the corporatist temptation -- Two conceptions of sovereignty -- A positivist pluralism? -- Law as intelligibility -- Pluralist authority -- This unity of life and action -- The personality of associations -- Property, personality, and public justification -- The spectre of intractability.