In this response to the review of Moore, Causation and Responsibility, by Larry Alexander and Kimberly Ferzan, previously published in this journal, two issues are discussed. The first is whether causation, counterfactual dependence, moral blame, and culpability, are all scalar properties or relations, that is, matters of more-or-less rather than either-or. The second issue discussed is whether deontological moral obligation is best described as a prohibition against using another as a means, or rather, as a prohibition on an agent strongly (...) causing a prohibited result that was not about to happen anyway while intending to do so. (shrink)

This essay replies to the thoughtful commentaries, by Michael Bratman, David Brink, Larry Alexander, and Michael Moore, on my book Attempts.

In addition to being one of the greatest technical philosophers of the twentieth century, John Dewey was an educational innovator, a Progressive Era reformer, and one of America’s last great public intellectuals. Dewey’s insights into the problems of public education, immigration, the prospects for democratic government, and the relation of religious faith to science are as fresh today as when they were first published. His penetrating treatments of the nature and function of philosophy, the ethical and aesthetic dimensions of life, (...) and the role of inquiry in human experience are of increasing relevance at the turn of the 21st century. Based on the award-winning 37-volume critical edition of Dewey’s work, The Essential Dewey presents for the first time a collection of Dewey’s writings that is both manageable and comprehensive. The volume includes essays and book chapters that exhibit Dewey’s intellectual development over time; the selection represents his mature thinking on every major issue to which he turned his attention. Eleven part divisions cover: Dewey in Context; Reconstructing Philosophy; Evolutionary Naturalism; Pragmatic Metaphysics; Habit, Conduct, and Language; Meaning, Truth, and Inquiry; Valuation and Ethics; The Aims of Education; The Individual, the Community, and Democracy; Pragmatism and Culture: Science and Technology, Art and Religion; and Interpretations and Critiques. Taken as a whole, this collection provides unique access to Dewey’s understanding of the problems and prospects of human existence and of the philosophical enterprise. (shrink)

In addition to being one of the greatest technical philosophers of the twentieth century, John Dewey was an educational innovator, a Progressive Era reformer, and one of America’s last great public intellectuals. Dewey’s insights into the problems of public education, immigration, the prospects for democratic government, and the relation of religious faith to science are as fresh today as when they were first published. His penetrating treatments of the nature and function of philosophy, the ethical and aesthetic dimensions of life, (...) and the role of inquiry in human experience are of increasing relevance at the turn of the 21st century. Based on the award-winning 37-volume critical edition of Dewey’s work, The Essential Dewey presents for the first time a collection of Dewey’s writings that is both manageable and comprehensive. The volume includes essays and book chapters that exhibit Dewey’s intellectual development over time; the selection represents his mature thinking on every major issue to which he turned his attention. Eleven part divisions cover: Dewey in Context; Reconstructing Philosophy; Evolutionary Naturalism; Pragmatic Metaphysics; Habit, Conduct, and Language; Meaning, Truth, and Inquiry; Valuation and Ethics; The Aims of Education; The Individual, the Community, and Democracy; Pragmatism and Culture: Science and Technology, Art and Religion; and Interpretations and Critiques. Taken as a whole, this collection provides unique access to Dewey’s understanding of the problems and prospects of human existence and of the philosophical enterprise. (shrink)

Legal and social norms regarding gender relations have undergone dramatic changes in the past 25 years. The changes have come about largely because of the confluence of changing economic and technological realities, the unfolding of the norm dictating equal treatment of individuals, the sexual revolution and its corollaries of improved contraception and legal abortion, the rise of women as a self-conscious group and a presence in the academy, and the interrelations of all of these factors. As men and women have (...) come to share dormitories and workplaces, and as the old mores governing sex—and male-female relations in general—have broken down, there has been struggle and uncertainty over what norms should apply to sexual relations. (shrink)

This editorial, introducing the Journal for Theoretical & Marginal Mathematics Education, is historically situated in a moment when the field of mathematics education research is on the precipice of acknowledging that the old world is dying. That is to say, the way research has been done before is no longer adequate for operating within the White, Colonial, cis-hetero Patriarchal, Abled Capitalist dystopia we find ourselves. This inadequacy is, however, not a reason for despair but instead for celebration. Instead of directing (...) our resources towards reifying existing norms and structures, towards adopting exhausted methods and theories—as is the way of the old world—we can instead foster a ‘new aesthetics’ of mathematics education research, wherein we remake the very material that constitutes mathematics education research itself. In doing so, we engage with the politics of the margins of mathematics education research. We discuss the critical, philosophical, and psychoanalytic as three potential, but non-exhaustive, departures from mathematics education research as it has been. Each of these marginal approaches, in their own way, points to the ways that presuming a fixed mathematics education research enacts exclusionary politics and precludes change. Let this be our manifesto, written from the margins, for a more root-grasping, more self-reflective, and freer mathematics education research. (shrink)

This piece is a review essay on Victor Tadros’s The Ends of Harm. Tadros rejects retributive desert but believes punishment can be justified instrumentally without succumbing to the problems of thoroughgoing consequentialism and endorsing using people as means. He believes he can achieve these results through extension of the right of self-defense. I argue that Tadros fails in this endeavor: he has a defective account of the means principle; his rejection of desert leads to gross mismatches of punishment and culpability; (...) and he cannot account for punishment of inchoate crimes. (shrink)

This book presents a comprehensive overview of what the criminal law would look like if organised around the principle that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Larry Alexander and Kimberly Kessler Ferzan argue that desert is a function of the actor's culpability, and that culpability is a function of the risks of harm to protected interests that the actor believes he is imposing and his reasons for acting in the (...) face of those risks. The authors deny that resultant harms, as well as unperceived risks, affect the actor's desert. They thus reject punishment for inadvertent negligence as well as for intentions or preparatory acts that are not risky. Alexander and Ferzan discuss the reasons for imposing risks that negate or mitigate culpability, the individuation of crimes, and omissions. (shrink)

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged (...) here, because if they are correct, the SP is not a tenable account of law. (shrink)

Although discussions of John Rawls’ A Theory of Justice generally refer to Rawls’ two principles of justice, and although Rawls himself labels his principles “the two principles of justice”, Rawls actually sets forth three distinct principles in the following lexical order: the liberty principle, the fair equality of opportunity principle, and the difference principle. Rawls argues at some length for the priority of the liberty principle over the other two. On the other hand, Rawls offers hardly any argument at all (...) for the priority of the fair equality of opportunity principle over the difference principle. In this article I will argue that making the fair equality of opportunity principle separate from and lexically prior to the difference principle is both intuitively unattractive and inconsistent with Rawls’ method of deriving principles of justice from the choices of rational contractors in the original position. (shrink)

This introduction to this handbook begins with the “big picture” questions about the relationship between morality and criminalization, in terms of both whether the law should reflect morality and how we should deal with uncertainty about what morality requires. From here, it turns to the wide-ranging criminalization questions presented by many of the entries, and it juxtaposes top-down and bottom-up strategies. It then draws connections between criminalization questions. Next, the introduction turns to the notions of responsible agency upon which just (...) punishment depends. The questions of who counts as a legal person for punishment, when can a person be held responsible, and how particular features of a person’s psychology or circumstances affect just punishment are considered. Finally, the chapter concludes by examining punishment and the role of the state, asking about the mode and amount of punishment, as well as the justness of the state’s imposition of punishment. (shrink)

In 2009 Larry Alexander and Kimberly Ferzan published Crime and Culpability: A Theory of Criminal Law. The book set out a theory that those who deserve punishment should receive punishment commensurate with, but no greater than, that which they deserve. Reflections on Crime and Culpability: Problems and Puzzles expands on their innovative ideas on the application of punishment in criminal law. Theorists working in criminal law theory presuppose or ignore puzzles that lurk beneath the surface. Now those who wish to (...) examine these topics will have one monograph that combines the disparate puzzles in criminal law through a unified approach to culpability. Along with some suggestions as to how they might resolve the puzzles, Alexander and Ferzan lay out the arguments and analysis so future scholars can engage with questions about our understanding of culpability that very few have addressed. (shrink)

In the moral realm, our deontic judgments are usually (always?) binary. An act (or omission) is either morally forbidden or morally permissible. 1 Yet the determination of an act's deontic status frequently turns on the existence of properties that are matters of degree. In what follows I shall give several examples of binary moral judgments that turn on scalar properties, and I shall claim that these examples should puzzle us. How can the existence of a property to a specific degree (...) demarcate a boundary between an act's being morally forbidden and its not being morally forbidden? Why aren't our moral judgments of acts scalar in the way that the properties on which those judgments are based are scalar, so that acts, like states of affairs, can be morally better or worse rather than right or wrong? I conceive of this inquiry as operating primarily within the realm of normative theory. Presumably it will give aid and comfort to consequentialists, who have no trouble mapping their binary categories onto scalar properties. For example, a straightforward act utilitarian, for whom one act out of all possible acts is morally required (and hence permissible) and all others morally forbidden, can, in theory at least, provide an answer to every one of the puzzles I raise. And, in theory, so can all other types of act and rule consequentialists. They will find nothing of interest here beyond embarrassment for their deontological adversaries. The deontologists, however, must meet the challenges of these puzzles. And for them, the puzzles may raise not just normative questions, but questions of moral epistemology and moral ontology. Just how do we know that the act consequentialist's way of, say, trading off lives against lives is wrong? For example, do we merely intuit that taking one innocent, uninvolved person's life to save two others is wrong? Can our method of reflective equilibrium work if we have no theory by which to rationalize our intuitions? And what things in the world make it true, if it is true, that one may not make the act consequentialist's tradeoff? I do not provide any answers to these questions any more than I provide answers to the normative ones. But they surely lurk in the background. (shrink)

The question of when other people’s bad acts belong on our moral ledger arises in a number of different scenarios. Each scenario has received some philosophical attention, but no one has noted the structural similarities of these various scenarios or the implications of a proposed approach to one for how the others should be approached. That is the ambition of this article. In it, seemingly disparate moral phenomena—blunt rules, preemptive restrictions, moral blackmail, complicity, retreat and proportional response, and the duty (...) to rescue from a peril one has caused—are shown to have similar structures and thus to require similar moral approaches. (shrink)

Iconoclasts? Who, Us? A Reply to Dolinko Content Type Journal Article Category Original Paper Pages 1-7 DOI 10.1007/s11572-012-9143-3 Authors Larry Alexander, San Diego, CA, USA Kimberly Kessler Ferzan, Camden, NJ, USA Journal Criminal Law and Philosophy Online ISSN 1871-9805 Print ISSN 1871-9791.

In this short article I examine whether and how one’s minor culpability in giving rise to an instance of otherwise justified defense affects the defense and affects the act giving rise to it.

In this article I defend what Mark Greenberg has labeled the standard picture of law against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the standard picture’s conception of it has moral virtues that Greenberg's own moral impact theory and Hershovitz’s similar theory lack. Moreover, it avoids a vicious circularity that bedevils Greenberg’s theory.

I begin my analysis of consent by agreeing with Professor Hurd that consent functions as a “moral transformative” by altering the obligations and permissions that determine the Tightness of others' actions. I further agree with her that consent is intimately related to the capacity for autonomous action; one who cannot alter others' obligations through consent is not fully autonomous. I cannot improve on her elaboration of these points.

American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative duties to (...) aid encounters the same problem of moral arbitrariness as does a moral catastrophe override of deontological side-constraints. (shrink)

In this short paper, I shall answer the title’s question first in the context of criminal law and then in the context of tort law. In that latter section, I shall also mention in passing contractual and other forms of civil liability that are strict, although they will not be my principal focus. My conclusions will be that strict liability is never proper as the basis for retributive punishment; that it is a very crude device for achieving deterrence through nonretributive (...) penalties; and that with respect to tort liability, it is best justified as a means of defining insurance categories. (shrink)

Are our rights—to our bodily integrity, to our possessions, to the goods and services promised us, and so on—matters of fact, or are our rights functions of others’ beliefs about how their acts will affect our rights? The conventional view states that subjective oughts—based on what we believe—determine culpability, whereas objective oughts—based on the facts—determine permissibility. After all, the idea that our beliefs about how our acts would affect others’ rights might affect the contours of those rights themselves appears deeply (...) paradoxical. For how can others’ rights be based on our beliefs when those beliefs have as their objects not themselves but others’ rights? Nonetheless, paradoxical as that position may appear, a strong case can be mounted in its defense, not by focusing on the rights themselves, but by focusing on the acts that imperil those rights. It is the burden of this essay to make a case for the belief-relativity rather than the fact-relativity of rights. (shrink)

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in (...) my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” ; “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration. (shrink)

In "The Rule of Rules" Larry Alexander and Emily Sherwin examine this dilemma.

Orthodox criminal law doctrine treats mistakes of law and mistakes of fact differently for purposes of both exculpation and inculpation. Kenneth Simons’ paper in general defends this orthodoxy. I have earlier criticized the criminal law’s attempt to distinguish mistakes of law from mistakes of fact, and I continue to maintain, in opposition to Simons, that the distinction is problematic.

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practise special forms of reasoning is false.

In the late Middle Ages the philosopher and mystic Meister Eckhart preached that to know the truth you must be the truth. But how to be the truth? Eckhart's answer comes in the form of an imperative: release yourself, let be. Only then will you be able to understand that the deepest meaning of being is releasement. Only then will you become who you truly are. This book interprets Eckhart's Latin and Middle High German writings under the banner of an (...) imperative of releasement, and then shows how the twentieth-century thinker Martin Heidegger creatively appropriates this idea at several stages of his career. Heidegger had a lifelong fascination with Eckhart, referring to him as "the old master of letters and life." Drawing on archival material and Heidegger's marginalia in his personal copies of Eckhart's writings, Moore argues that Eckhart was one of the most important figures in Heidegger's philosophy. This book also contains previously unpublished documents by Heidegger on Eckhart, as well as the first English translation of Nishitani Keiji's essay "Nietzsche's Zarathustra and Meister Eckhart," which he initially gave as a presentation in one of Heidegger's classes in 1938. (shrink)

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others’ interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of (...) deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly. (shrink)