One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall...
Under the Mental Capacity Act 2005 (MCA) in England and Wales, the liberal commitments to subjective freedom guide obligations towards persons who do not lack capacity. For the subject of proceedings who might lack capacity (P), it is less clear as to what obligations orient best interests decision-making on their behalf. The UK Supreme Court has emphasised the centrality of ‘P...
Recent philosophical accounts of discrimination face challenges in accommodating robust intuitions about the particular way in which it is wrongful—most prominently, the intuition that discriminatory actions intrinsically violate equality irrespective of their contingent consequences. The paper suggests that we understand the normative structure of discrimination in a way that is...
Many climate ethicists maintain that climate policy costs should be borne by those who historically emitted the most greenhouse gases. Some theorists have recently argued, however, that actors only became liable for emitting once the emissions breached legitimate legal regulation governing emissions. This paper challenges this view. Focusing on the climate responsibility of...
This essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to...
Jurisprudes today differ in their interpretations of H.L.A. Hart’s analysis of the semantics of internal legal statements. Drawing upon the philosophy of language and metaethics to reconstruct Hart’s view, they disagree as to whether Hart should be interpreted as an expressivist or quasi-expressivist. In this paper I propose a third reconstruction, under which Hart adopted an...
Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe...
In War by Agreement (Oxford and New York: Oxford University Press, 2019), Yitzhak Benbaji and Daniel Statman argue that the ‘war convention’ – i.e. the international laws and conventions that are widely accepted to govern the use of force between sovereign states – represents a morally binding contract. On their understanding, the war convention replaces a pre-contractual...
Benbaji and Statman’s contractarian ethics of war offers a powerful new philosophical defence of orthodox conclusions against revisionist criticism. I present a two-pronged argument in reply. First, contractarianism yields what I call ‘decent war theory,’ a theory in which war between decent states is paradigmatic. I argue, by contrast, that states should treat wars against...
An attractive form of social stability is realized when the members of a well-ordered society give that society’s organizing principles their free and reflective endorsement. However, many political philosophers are skeptical that there is any requirement to show that their principles would engender this kind of stability. This skepticism is at the root of a number of objections...
This paper answers two questions. First, on the assumption that risk of harm is of moral significance, does risk’s moral significance lay in its being harmful? Second, is risk of harm itself harmful? I argue that either risk is not harmful or that risk is harmful only in a small range of cases. If risk is not harmful, and yet risk is of moral significance, risk’s moral...
In War By Agreement, Yitzhak Benbaji and Daniel Statman argue that the morality of war can be governed by a freely accepted agreement over the principles that apply to it. This war contract supersedes the application of the principles of everyday morality to war, thus defying ‘revisionist’ approaches to war, and it upholds a recognizable version of traditional just war theory...
Analytic philosophy has largely neglected the topic of homelessness. The few notable exceptions, including work by Jeremy Waldron and Christopher Essert, focus on our interests in shelter, housing, and property rights, but ignore the key social functions that a home performs as a place in which we are welcomed, accepted, and respected. This paper identifies a ladder of home...
Transferred malice, or transferred intent, is the criminal doctrine that states that if D tries to kill A, and accidentally kills B, the intent to kill transfers from A to B, and so D is guilty of murdering B. This is widely viewed as a useful legal fiction. One of the finest essays on this topic was written by our honorand, Douglas N. Husak. Husak views both the potential...
In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms...
In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral...
What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents...
In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.
Lately it has become a commonplace to complain about the injustice of mass incarceration. I share the sentiment that this phenomenon has been an injustice. But it also has become orthodoxy to allege that the acceptance of a retributive penal philosophy has been one of the chief factors that has brought about mass incarceration in the first place. As a self-proclaimed...
Mainstream political liberals hold that state coercion is legitimate only if it is justified on the grounds of reasons that all may reasonably be expected to accept. Critics argue that this public justification principle (PJP) is self-defeating, because it depends on moral justifications that not all may reasonably be expected to accept. To rebut the self-defeat objection, I...
It is well known that experts’ opinion and testimony take on a decisive weight in judicial fact-finding, raising issues and perplexities that have long been under scholarly scrutiny. In this paper I argue that expert’s opinions have a much wider impact on legal decision-making. In particular, they may generate a problem that I will call ‘the opacity of law’. A legal text, such as...