Criminalisation theorists who try to explain when substantive criminal law may appropriately be deployed to shrink the scope of our presumptive initial liberty, often take their project as requiring them to identify the sorts of conduct for which may the state criminally convict. I argue that this is a mistake. While such theories of ‘convictability’ have their place, they do not completely explain the use of substantive criminal law to limit our presumptive initial liberty. Convictions ensue only after pleas of (...) justification and excuse fail, but the substantive criminal law coercively limits liberty well before conviction, when it creates a pro tanto criminal proscription. Even those who can escape conviction by pleading a justificatory or excusatory defence were, in fact, subject to authoritative criminal law guidance proscribing (or sometimes, requiring) specified conduct. Although that guidance is sometimes trumped by the additional guidance contained in defences, it is not null and void, and it continues to have a liberty-limiting effect. In other words, substantive criminal law already shrinks our initial liberty by pro tanto criminally proscribing some conduct. Therefore, I argue that we also need a theory of criminalisation that addresses the appropriate domain of pro tanto criminal proscriptions. (shrink)

The paper discusses the structure, applications, and plausibility of the much-used parallel-case argument for workplace democracy. The argument rests on an analogy between firms and states according to which the justification of democracy in the state implies its justification in the workplace. The contribution of the paper is threefold. First, the argument is illustrated by applying it to two usual objections to workplace democracy, namely, that employees lack the expertise required to run a firm and that only capital suppliers (...) should have a say over the governance of the firm. Second, the structure of the argument is unfolded. Third, two salient similarities between firms and states regarding their internal and external effects and the standing of their members are addressed in order to asses the potential and limits of the argument, as well as three relevant differences regarding the voluntariness of their membership, the narrowness of their goals, and the stiffness of the competition they face. After considering these similarities and differences, the paper contends that the the parallel-case argument provides a sound reason in favor of democracy in the workplace—a reason, however, that needs to be importantly qualified and that is only pro tanto. (shrink)

In this paper we put forward a realist account of the problem of the accommodation of conflicting claims over sacred places. Our argument takes its cue from the empirical finding that modern, Western-style states necessarily mould religion into shapes that are compatible with state rule. So, at least in the context of modern states there is no pre-political morality of religious freedom that states ought to follow when adjudicating claims over sacred spaces. In which case most liberal (...) normative theory on religious accommodation turns out to be wrong headed. As an alternative, we suggest the question of contested sacred places should be settled with reference to the state’s purposes—at least as long as one is committed to the existence of modern states. If one finds the state’s treatment of religion unsatisfactory, then our argument provides a pro tanto reason for seeking alternative forms of political organisation. (shrink)

A significant proportion of states grants constitutional recognition to a single religion, leaving various other religions within society constitutionally unrecognised. Many philosophers believe that this is problematic even when such recognition is (almost) wholly symbolic. The four most common and prima facie plausible objections to what I call ‘mono-recognition’ are that it alienates citizens who do not adhere to the constitutionally recognised religion; that it symbolically subordinates these individuals; that it reinforces oppressive social hierarchies; and that it violates principles (...) of justificatory neutrality. This article shows that none of these objections establish that mono-recognition is wrong within contemporary societies—or even merely pro tanto wrong. However, it goes on to propose a novel argument that does suggest that this type of religious establishment is pro tanto wrong within most societies, if not all. According to this argument, which I refer to as the ‘desire-based objection’, mono-recognition is pro tanto wrong when it fails to accommodate at least some citizens (a) who desire constitutional recognition of their unrecognised religion on morally reasonable, or simply not unreasonable, grounds or who would do so if they were to independently ponder the possibility of receiving such recognition without having to fear any social backlash that receiving it might cause and (b) whose religion is entitled to constitutional recognition based on the size of its population within society; the societal contributions of its members; and any injustices that its members have suffered at the hands of the state or the wider society. As I show, even when one particular religion has the strongest claim to constitutional recognition, this does not normally justify granting sole recognition to it given that the weaker claims of other religions could be accommodated under a system whereby state religions are rotated and recognised for different durations depending on the strength of their claims. (shrink)

Future-directed intentions, it is widely held, involve behavioral dispositions. But of what kind? Suppose you now intend to Φ at future time t. Are you thereby now disposed to Φ at t no matter what? If so, your intention disposes you to Φ even if around t you will come to believe that Φ-ing would be crazy. And would not that be a crazy intention to have? – Like considerations have led Luca Ferrero and others to believe that only intentions (...) with strong internal conditions are capable of rationality. This paper explores in how far a broadly dispositional view of intention supports their claims. Its first point will come as a surprise: Intentions indeed involve dispositions toward follies in plenty. Natural objections against this bizarre-sounding claim are shown to fail, and standard counterfactual analyses of disposition locutions are shown to underpin it further. However, since the dispositions at issue are pro tanto dispositions, the consequences are not as odd as might be expected: When hedged by reasonable habits to reconsider one’s intentions, dispositions toward follies do not entail any actual crazy behavior. On balance, unconditional intention is therefore found rational after all. Dispositions toward crazy actions need not be crazy dispositions. (shrink)

Plausible retributivist justifications for punishment assert that the commission of a moral wrong creates a pro tanto reason to punish the person who committed it. Yet there are good case-based and theoretical reasons to believe that not all moral wrongs are the proper subjects of criminal law or that they are within the proper domain of the state. This article provides these reasons, which suggest that a plausible retributivist justification for punishment must make distinctions between state-relevant and non-state-relevant moral (...) wrongs and state-relevant and non-state-relevant desert. The article makes the case for Rawlsian public reason as a plausible method for making these distinctions. (shrink)

Justice can be pursued by the state, or through voluntary charity. This paper seeks to contribute to the debate about the appropriate division of labor between government and charitable agencies by developing a positive account of the charity sector's moral foundations. The account given here is grounded in a legal conception of charity, as a set of subsidies and privileges designed to cultivate a wide variety of activities aimed at enhancing civic virtue and autonomy. Among other things, this implies that (...) a charity sector oriented largely around the pursuit of justice will come at a moral cost to a liberal society, at least when the state is in a position to take the greater share of the responsibility. So, a positive account of charity provides at least a pro tanto reason for preferring a division of labor in which the state takes a greater share of the responsibility for pursuing justice. As well as developing and defending this conception in its own right, we apply it in offering some criticisms and enhancements of existing views about the division of labor. (shrink)

This paper tries to explain why racial profiling involves a serious injustice and to do so in a way that avoids the problems of existing philosophical accounts. An initially plausible view maintains that racial profiling is pro tanto wrong in and of itself by violating a constraint on fair treatment that is generally violated by acts of statistical discrimination based on ascribed characteristics. However, consideration of other cases involving statistical discrimination suggests that violating a constraint of this kind may (...) not be an especially serious wrong in and of itself. To fully capture the significant wrong that occurs when racial profiling is targeted at black Americans or other similarly situated groups, it is argued that we should appeal to the idea that this basic injustice is exacerbated when it forms part of a larger pattern of similar actions that collectively realize a state of cumulative injustice. (shrink)

Political theorists have recently sought to replace the liberal, contractual theory of the firm with a political view that models the authority relation of employee to firm, and its appropriate regulation, on that of subject to state. This view is liable to serious difficulties, however, given existing discontinuities between corporate and civil authority as to their coerciveness, entry and exit conditions, scope, legal standing, and efficiency constraints. I here inspect these, and argue that, albeit in some cases significant, such discontinuities (...) fail to undermine the firm/state analogy, either because they are not significant enough to do so or because the particular trait on which they hinge is not decisive for how authority, in the state and in the firm, should be regulated to be legitimate. A pro tanto requirement exists, I thus argue, that corporate authority be held to regulatory norms comparable to those legitimate states abide by, including civil liberties, rule-of-law constraints, and accountability to subjects. (shrink)

When weighing up which inhaler to prescribe, a doctor may prioritise a patient’s preferences over the expected harms from the associated carbon emissions. Parker argues that this is wrong.1 Doctors have a pro-tanto duty to switch from a high-carbon metered-dose inhaler (MDI) to a low-carbon dry-powdered inhaler (DPI)—even though this provides no direct patient benefit—unless switching would undermine trust or significantly worsen a patient’s health. He goes on to state that even if DPIs are more expensive for the National (...) Health Service (NHS) then this is justified so long as it does not ‘significantly threaten’ the NHS’ ability to protect and promote health. This may appear to be a radical proposal, challenging the ethical principles of autonomy, health entitlements and justly distributed resources. However, we will claim that it is only radical in so far as one perceives (A) patient autonomy and healthcare entitlements as existing within a vacuum, unrelated to other foundational ethics concerns and (B) the health consequences of a given healthcare budget are limited solely to the designated recipients rather than all affected parties. Here, we test the claim that our responsibility for promoting patient autonomy …. (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)

Piero Moraro argues that people who engage in civil disobedience do not have a pro tanto reason to accept punishment for breaking the law, although they do have a duty to undergo prosecution. This is because they have a duty to answer for their actions, and the state serves as an agent of the people by calling the lawbreaker to answer via prosecution. I argue that Moraro does not go far enough. Someone who engages in civil disobedience does not (...) even have to show up for the trial, provided that they answer for their actions adequately via some other means. This is because sometimes states are not agents of the people who can call lawbreakers to account, and even those states which are agents cannot demand that lawbreakers answer for their crimes in the form of a trial. (shrink)

Judith Jarvis Thomson and others contend that rights are pro-tanto rather than absolute, that is, that rights may permissibly be infringed in some circumstances. Alan Gewirth maintains that there are some rights that are absolute because infringing them would amount to unspeakable evil. However, there seem to be possible circumstances in which it would be permissible to infringe even those rights. Specificationists, such as Gerald Gaus, Russ Shafer-Landau, Hillel Steiner and Kit Wellman, argue that all rights are absolute because (...) they have implicit exceptions, the exceptions being either right-voiding or right-compatible. Specificationists have charged pro-tantoism with preventing rights from being action-guiding, and pro-tantoists have levelled the same charge against specificationism. I show that both charges are mistaken. Pro-tantoists claim that specificationists cannot account for the moral remainder that we recognise in some circumstances and which can be explained by reference to a permissible right-infringement. Specificationists retort that the moral remainder can be explained by invoking compensation-rights. I show that the pro-tantoist claim is true and that the specificationist retort is false on two counts: explanation in terms of compensation-rights is not applicable to all cases; and it fails to account for the moral dynamic in the cases to which it is applicable. The contention that rights are pro-tanto does not conflict with the substance of the contention that rights are trumps, despite claims of specificationists to the contrary. (shrink)

An important question regarding the use of neurointerventions in criminal justice systems relates to the ethics of offering neurointerventions in exchange for a sentence reduction or as a condition of parole – what has been termed the _neurocorrective offer_. In this paper, we suggest that neurocorrective offers may sometimes involve manipulative pressure. That is, in some cases these offers will involve a pressure to comply with the manipulators’ (i.e., the state’s) bidding that does not rise to the level of coercion, (...) but which cannot be considered an instance of persuasion. We then suggest that offenders may fall victim to this pressure due to general facts about human psychology and their situational vulnerability. We end the paper by identifying three reasons for thinking it prima facie morally wrong for the state to make neurocorrective offers involving manipulative pressure even if such offers do not undermine offenders’ consent to the offer. Specifically, we suggest that such offers are plausibly pro tanto harmful to some offenders and that they sometimes disrespect their autonomy and rationality. (shrink)

Just war theory is currently dominated by two positions. According to the orthodox view, provided that jus in bello principles are respected, combatants have an equal right to fight, regardless of the justice of the cause pursued by their state. According to “revisionists” whenever combatants lack reasons to believe that the war they are ordered to fight is just, their duty is to disobey. I argue that when members of a legitimate state acting in good faith are ordered to fight, (...) they acquire a pro-tanto obligation to obey which does not depend for its validity on the justice of the cause being pursued. However, when the war is unjust, this obligation may be overridden, under certain conditions, by the obligation not to contribute to the unjustified killing of innocents. This is because the pro-tanto force of the duty to obey the law is best understood in terms of “presumptive”, rather than “exclusionary” reasons for action. This approach captures the insights of both the orthodox and the revisionist view, while avoiding the problems that afflict each of them. (shrink)

Land-based climate mitigation schemes such as REDD+ imply the creation of ‘rights to carbon’ for actions that enhance carbon sinks. In many cases, the legal and normative foundations of such rights are unclear. This article focuses on special rights on the basis of improvement. Considering improvement in relation to carbon sinks requires asking what it means to ‘improve’ an environmental resource. Our answer departs in two significant respects from the standard conception of improvement, namely by reconceiving action in relation to (...) ecosystem services, and accordingly, making the case for a counterfactual baseline to be used to compare an improved and unimproved state. Our modifications potentially allow for a variety of agents to claim special carbon rights on the basis of beneficial interactions with land-based carbon sinks. We give three archetypical examples of agents who may claim pro tanto special rights to carbon based on their interaction with carbon sinks. (shrink)

Alon Harel wants to show that punishment is a kind of symbolic expression that, as a matter of metaphysical necessity, can only be performed by governmental agents. Contrary to Harel, I argue private agents can in fact realize those features he argues only public agents can realize. I also argue that, even if he were right that only public guards and wardens can punish, it’s unclear why we would have an all-things-considered rather than merely a pro tanto/prima facie duty (...) to punish. An instrumentalist can grant Harel that only state employees can punish, but still decide, on instrumental grounds, to reject public punishment in favor of private “schpunishment.”. (shrink)

There are at least two threads in our thought and talk about rationality, both practical and theoretical. In one sense, to be rational is to respond correctly to the reasons one has. Call this substantive rationality. In another sense, to be rational is to be coherent, or to have the right structural relations hold between one’s mental states, independently of whether those attitudes are justified. Call this structural rationality. According to the standard view, structural rationality is associated with a (...) distinctive set of requirements that mandate or prohibit certain combinations of attitudes, and it’s in virtue of violating these requirements that incoherent agents are irrational. I think the standard view is mistaken. The goal of this paper is to explain why, and to motivate an alternative account: rather than corresponding to a set of law-like requirements, structural rationality should be seen as corresponding to a distinctive kind of pro tanto rational pressure—i.e. something that comes in degrees, having both magnitude and direction. Something similar is standardly assumed to be true of substantive rationality. On the resulting picture, each dimension of rational evaluation is associated with a distinct kind of rational pressure—substantive rationality with (what I call) justificatory pressure and structural rationality with attitudinal pressure. The former is generated by one’s reasons while the latter is generated by one’s attitudes. Requirements turn out to be at best a footnote in the theory of rationality. (shrink)

International criminal law is dedicated to the battle against impunity. However, the concept of impunity lacks clarity. Providing that clarity also reveals challenges for the current state and future prospects of the project of ICL, which this article frames in cosmopolitan terms. The ‘impunity norm’ of ICL is generally presented in a deontic form. It holds that impunity for perpetrators of international crimes is a wrong so profound that states and international bodies have a pro tanto duty to (...) prosecute and punish perpetrators, a duty that cannot be overridden by considerations of cost, including the costs of infringing on the traditionally understood legal sovereignty of states. This deontic reading of the impunity norm is difficult to justify, a fact linked to the waning fortunes of ICL over the past several years. If ICL is to reverse this trend, the impunity norm’s strongly deontic reading should be replaced by a version derived from deliberative principles. (shrink)

This article examines whether a retributivist conception of punishment implies legal moralism and asks what liberalism implies about retributivism and moralism. It makes a case for accepting the weak retributivist thesis that culpable wrongdoing creates a pro tanto case for blame and punishment and the weak moralist claim that moral wrongdoing creates a pro tanto case for legal regulation. This weak moralist claim is compatible with the liberal claim that the legal enforcement of morality is rarely all‐thing‐considered desirable. (...) Though weak moralism has some plausibility, it does not follow from weak retributivism if legitimate state functions are limited in certain ways. (shrink)

American criminal law is committed to some version of the doctrine of double effect. In this paper, I defend a new variant of the agent-centered rationale for a version of DDE that is of particular relevance to the criminal law. In particular, I argue for a non-absolute version of DDE that concerns the relative culpability of intending a bad or wrongful state of affairs as opposed to bringing it about merely knowingly. My aim is to identify a particular feature of (...) the former in virtue of which it is pro tanto more culpable than the latter. Providing an agent-centered argument of this kind for a culpability version of DDE, I argue, is an especially attractive route to take for those who are interested in vindicating the way the criminal law actually encodes DDE. (shrink)

Decision theory and folk psychology both purport to represent the same phenomena: our belief-like and desire- and preference-like states. They also purport to do the same work with these representations: explain and predict our actions. But they do so with different sets of concepts. There's much at stake in whether one of these two sets of concepts can be accounted for with the other. Without such an account, we'd have two competing representations and systems of prediction and explanation, a (...) dubious dualism. Folk psychology structures our daily lives and has proven fruitful in the study of mind and ethics, while decision theory is pervasive in various disciplines, including the quantitative social sciences, especially economics, and philosophy. My interest is in accounting for folk psychology with decision theory -- in particular, for believe and wanting, which decision theory omits. Many have attempted this task for belief. (The Lockean Thesis says that there is such an account.) I take up the parallel task for wanting, which has received far less attention. I propose necessary and sufficient conditions, stated in terms of decision theory, for when you're truly said to want; I give an analogue of the Lockean Thesis for wanting. My account is an alternative to orthodox accounts that link wanting to preference (e.g. Stalnaker (1984), Lewis (1986)), which I argue are false. I argue further that want ascriptions are context-sensitive. My account explains this context-sensitivity, makes sense of conflicting desires, and accommodates phenomena that motivate traditional theses on which 'want' has multiple senses (e.g. all-things-considered vs. pro tanto). (shrink)

I argue that the distance between state and citizen gives state paternalism a pro tanto advantage over paternalism between individuals. Pace Jonathan Quong, the state neither denies nor diminishes my moral status by acting on a justified negative judgment about my rational or volitional capacities. Nor does its failure to paternalize on the basis of detailed information about individuals constitute a source of disrespect. Rather, the less discriminating nature of general legislation both reduces the risk of social stigmatization and (...) avoids a problematic dynamic with the paternalizee. But paternalistic policies may give us reason to be concerned about superiority or contempt in policy-makers towards the citizens at whom they are directed. Governments must remain ‘faceless’ enough for paternalism to operate at a distance, but they must reassure the governed that the judgment that they can do better for them does not conceal the attitude that they are better than them. (shrink)

This paper has two aims. The first is to present and defend a new argument for rights contributionism – the view that the notion of a moral claim-right is a contributory (or pro tanto) rather than overall normative notion. The argument is an inference to the best explanation: it is argued that (i) there are contributory moral factors that contrast with standard moral reasons by way of having a number of formal properties that are characteristic of rights, even though (...) they can be overridden, and (ii) that this is best explained by a view that takes these factors to correlate with rights. The second aim is to show that the truth of rights contributionism matters for normative ethics. More specifically, it is argued that rights contributionism clears the way for deontologists to justify the pre-theoretically plausible verdict that we have a duty to save the greater number in so-called Taurek scenarios – scenarios in which we have to choose between saving either a greater or a smaller number of different people. The chapter offers a novel and distinctively deontological explanation of this verdict that is based on the assumption that everyone has a pro tanto right to be saved in a Taurek scenario. (shrink)

In view of the explanatory significance of joblessness, some social scientists, policymakers, and commentators have advocated strong measures to ensure that the ghetto poor work, including mandating work as a condition of receiving welfare benefits. Indeed, across the ideological political spectrum, work is often seen as a moral or civic duty and as a necessary basis for personal dignity. And this normative stance is now instantiated in federal and state law, from the tax scheme to public benefits. This Article reflects (...) critically on this new regime of work. I ask whether the normative principles to which its advocates typically appeal actually justify the regime. I conclude that the case for a pro tanto moral or civic duty to work is not as strong as many believe and that there are reasonable responses to joblessness that do not involve instituting a work regime. However, even if we grant that there is a duty to work, I maintain that the ghetto poor would not be wronging their fellow citizens were they to choose not to work and to rely on public funds for material support. In fact, I argue that many among the black urban poor have good reasons to refuse to work. Throughout, I emphasize what too few advocates of the new work regime do, namely, that whether work is an obligation depends crucially on whether background social conditions within the polity are just. (shrink)

The ‘impairment argument’ against abortion developed by Perry Hendricks aims to derive the wrongness of abortion from the wrongness of causing foetal alcohol syndrome. Hendricks endorses an ‘impairment principle’, which states that, if it is wrong to inflict an impairment of a certain degree on an organism, then, ceteris paribus, it is also wrong to inflict a more severe impairment on that organism. Causing FAS is wrong in virtue of the impairment it inflicts. But abortion inflicts an even more (...) severe impairment, and so, ceteris paribus, is also wrong. Notably, Hendricks thinks that this argument does not require the claim that the foetus is a person. Here, I respond to Hendricks by arguing that the ceteris paribus clause of the impairment principle is not met in ordinary cases of pregnancy. Carrying an unwanted pregnancy to term is much more burdensome than is refraining from excessive drinking for nine months. This provides a pro tanto justification for obtaining an abortion that does not apply to causing FAS. If the foetus is not a person, it seems fairly clear to me that this justification is strong enough to render abortion permissible. Hendricks is therefore incorrect in claiming that the impairment argument can go without claims concerning foetal personhood. If the foetus is a person, then whether burdensomeness justifies abortion depends on certain questions relating to Thomson’s famous violinist argument. I will not attempt to answer those. But anyone who is otherwise sympathetic to Thomson’s argument should not be moved by the impairment argument. (shrink)

Walter Sinnott-Armstrong and Frank Miller's article is an intelligent, interesting and important discussion.1 Its central thesis is that what makes killing wrong is not that killing causes death or loss of consciousness, but that killing causes an individual to be completely, irreversibly disabled. The first of two main implications is that it is not even pro tanto wrong to kill someone who is already in such a thoroughly disabled state. The second is that the dead donor rule in the (...) context of vital organ transplantation should be abandoned.I embrace the second main implication. As the authors argue, the dead donor rule is routinely violated in contemporary vital organ procurement; but what should change are not the standard practices in which the rule is violated, but the rule itself. In general, I believe that the practical implications of the authors’ account of the wrongness of killing are more justified than the account itself. My judgment is possible because their account has mostly the same implications as what I take to be the best account—at least regarding the killing of human beings. I turn now to points of disagreement.First, the authors argue that the wrongness of killing is a function of harming and that, because ‘a loss of autonomy is a kind of harm, broadly construed…,’ …. (shrink)

Most of us think that states are justified in incarcerating criminals, sometimes for decades. In this paper I suggest that if states are justified in this, they are also justified in inflicting certain forms of corporal punishment. Many forms of corporal punishment are less burdensome than long-term incarceration, and arguably, they are also cheaper, fairer, more deterring, and less destructive of the social and economic networks that convicts often depend on for future reintegration into society. After presenting a (...) pro tanto case for corporal punishment, I consider a number of objections. I conclude that although there are genuine downsides to corporal punishment that must be taken very seriously, the case for the judicial use of this punishment method is much stronger than what is commonly assumed. (shrink)

Supporters of open borders sometimes argue that the state has no pro tanto right to restrict immigration, because such a right would also entail a right to exclude existing citizens for whatever reasons justify excluding immigrants. These arguments can be defeated by suggesting that people have a right to stay put. I present a new form of the exclusion argument against closed borders which escapes this “right to stay put” reply. I do this by describing a kind of exclusion (...) that has not been discussed in depth, which I call “territorial exclusion.” Territorial exclusion is the process according to which the group that wishes to exclude current citizens secedes from the territory in which those citizens reside. I argue that the wrongness of territorial exclusion explains why there is no pro tanto right for a state to exclude immigrants, because otherwise there would be a pro tanto right for the state to kick people out by seceding from the territory they inhabit. Because kicking people out like this is typically wrong, borders cannot be closed. (shrink)

In an article previously published in this journal, Phillip Montague critically surveys and rejects a handful of contemporary attempts to explain why state punishment is morally justified. Among those targeted is one of my defences of the censure theory of punishment, according to which state punishment is justified because the political community has a duty to express disapproval of those guilty of injustice. My defence of censure theory supposes, per argumentum, that there is always some defeasible moral reason for the (...) state to proportionately punish the guilty, and then demonstrates that censure theory best entails and explains this intuition. Montague does not question the intuition, but instead argues that three rival theories of punishment, including his societal-defence view, account for it to no worse a degree than my censure theory. In this article I defend my initial argument, noting resources for its defence that Montague does not appreciate and that, I maintain, provide those who believe that there is always pro tanto injustice in the state failing to proportionately punish the guilty reason to adopt censure theory over all competitors, including Montague’s societal-defence theory. (shrink)

I summarize a conception of morality as containing a set of rules which hold ceteris paribus and which impose pro-tanto obligations. I explain two ways in which moral rules are ceteris-paribus, according to whether an exception is duty-voiding or duty-overriding. I defend the claim that moral rules are ceteris-paribus against two qualms suggested by Luke Robinson’s discussion of moral rules and against the worry that such rules are uninformative. I show that Robinson’s argument that moral rules cannot ground pro- (...) class='Hi'>tanto obligations is unsound, because it confuses an absolute reason for an obligation with a reason for an absolute obligation, and because it overlooks the possibility that priority rules may be rules for ordering pro-tanto obligations rather than rules for eliminating contenders for the status of absolute obligation. (shrink)

Defenses of political obligation—the pro tanto obligation to obey the law because the state commands it—often operate at or near the level of ideal theory. Critics, though, increasingly question that approach’s relevance for the imperfect states that exist. This article develops a lesser evil framework to evaluate political obligation with several advantages over more ideal approaches: (1) avoids the questionable assumption that some actual states are reasonably just, (2) recognizes that context matters for political obligation, (3) captures (...) the complicity involved in obeying the state, and (4) identifies a basis—varying intuitions on lesser evil justifications—to distinguish philosophical anarchism from conceptions of political obligation without the former collapsing into the latter. We remain agnostic on whether this framework establishes political obligation to any state but argue that it offers a compelling account of the moral dilemma of obeying the state under nonideal conditions. (shrink)

Moral uncertainty and disagreement pervade our lives. Yet we still need to make decisions and act, both individually and politically. So, what should we do? Moral uncertainty theorists provide a theory of what individuals should do when they are uncertain about morality. Public reason liberals provide a theory of how societies should deal with reasonable disagreements about morality. They defend the public justification principle: state action is permissible only if it can be justified to all reasonable people. In this article, (...) we bring these two approaches together. Specifically, we investigate whether considerations of moral uncertainty support public reason liberalism: given moral uncertainty, should we favor public justification? We argue that while moral uncertainty theory cannot vindicate an exceptionless public justification principle, it supports adopting public justification as a pro tanto principle – albeit one that can be overridden when the moral stakes are high. It also provides new answers to some intramural debates among public reason liberals and new responses to some common objections. (shrink)

Selection against embryos that are predisposed to develop disabilities is one of the less controversial uses of embryo selection technologies. Many bio-conservatives argue that while the use of ESTs to select for non-disease-related traits, such as height and eye-colour, should be banned, their use to avoid disease and disability should be permitted. Nevertheless, there remains significant opposition, particularly from the disability rights movement, to the use of ESTs to select against disability. In this article we examine whether and why the (...) state could be justified in restricting the use of ESTs to select against disability. We first outline the challenge posed by proponents of ‘liberal eugenics’. Liberal eugenicists challenge those who defend restrictions on the use of ESTs to show why the use of these technologies would create a harm of the type and magnitude required to justify coercive measures. We argue that this challenge could be met by adverting to the risk of harms to future persons that would result from a loss of certain forms of cognitive diversity. We suggest that this risk establishes a pro tanto case for restricting selection against some disabilities, including dyslexia and Asperger's syndrome. (shrink)

Many philosophers and laypeople have the following two intuitions about legal punishment: the state has a pro tanto moral reason to punish all those guilty of breaking a just law and to do so in proportion to their guilt. Accepting that there can be overriding considerations not to punish all the guilty in proportion to their guilt, many philosophers still consider it a strike against any theory if it does not imply that there is always a supportive moral reason (...) to do so. In this paper, I demonstrate that censure theory accounts for these intuitions much better than any other theory, including forms of retributivism such as desert theory and fairness theory, and explain why censure theory is able to do so. (shrink)

In one sense of the term current among analytical philosophers, the quietist_lacks skeptical doubts about the metaphysical or epistemological status of ethical judgments as a class of judgment. He may still have doubts about, say, the current state of morality. There are criteria of courage by which, though they are open-ended, a man may count as acting bravely. It need not follow that he has adopted the best tactics. Yet he must have responded fittingly to danger. But how is that (...) to be identified? “Ought”-judgments are to be understood contextually, with an implicit relativity to certain ends or quasi-ends, and—when the “ought” is only pro tanto—to certain aspects of, or opportunities within, a situation. These judgments are often intuitive in that they do not derive from the application of a principle. Fittingness is an anthropocentric relation that holds within some human perspective; we should not think of it as a feature purportedly inherent in the very nature of things. It is salutary to remember cases where the “ought” is so relativized, say to an undesirable end, that it identifies no reason for action. The nature of the relation does not change when it is relativized to an end that the agent has reason to achieve. “Ought”-judgments should not be interpreted in ambitious ways that make them generally problematic. (shrink)

During emerging public health crises, both policymakers and members of the public are looking to scientific experts to provide guidance. Even in cases where there are significant uncertainties, there is pressure for experts to “speak with one voice” to avoid confusion, allow officials to make evidence-based decisions rapidly, and encourage public support for such decisions. This can lead experts to engage in masking of information about the state of the science or regarding assumptions involved in policy recommendations. Although experts might (...) have good reasons for masking disagreements, uncertainties, or assumptions when offering policy advice, we argue that this strategy can result in epistemic harms. Using the case of the COVID-19 pandemic, we show that public health authorities masked two types of information necessary for laypersons to evaluate public health recommendations: (1) experts’ disagreements about the scientific evidence and (2) the role of values in making inferences from the science to policy positions. We contend that this resulted in epistemic harms against laypeople that provide a pro tanto case against masking information. We further argue that when the science is in flux and policies need to be implemented despite significant uncertainties, there is an all-things-considered case against masking the types of information discussed. (shrink)

In this paper I present two reasons why generalized skill-selection--a policy whereby skill, education, and economic independence are indefinitely prioritized in immigration decisions--is pro tanto unjust. First, such policies feed into existing biases, exacerbating status harms for low-SES citizens. The claim that we prefer the skilled to the unskilled, the educated to the uneducated, and the financially secure to the insecure is also heard by citizens. And there is considerable overlap between this message and the stereotypes and biases that (...) set their social status. Skill-selection can reinforce these biases, offering state support for the claim that they are less desirable as members of the society. -/- Second, the need for skilled immigrants ordinarily depends upon and reinforces failures of fair equality of opportunity (FEO). According to the dependency thesis, the need for skilled migrants stems from a failure to ensure domestic FEO. Many low-SES residents would desire to work, for example, as doctors or nurses. However, unequal education, as well as poverty and debt, have made such opportunities largely inaccessible. According to the reinforcement thesis, skill-selection disincentivizes the pursuit of FEO. A state that can meet domestic labor needs through less costly immigration policies will be disinclined to pursue programs designed to equalize opportunities for low-SES residents. -/- Generalized skill-selection in high-income countries like the US is, therefore, pro tanto unjust. However, this is not an argument for excluding the skilled. Skilled immigrants can be admitted through other policies—open borders, family-reunification, or a lottery—without the state signaling that the skilled are more desirable or perpetuating failures of FEO. And states can, responding to local emergencies, temporarily select for particular professions without contributing to these injustices. These concerns only arise when skill is generally and indefinitely prioritized. (shrink)

Advances in science and technology have added to our insights into the vulnerabilities of human agency as well as to the methods of exploiting them. This has raised the stakes for efforts to clarify the concept and ethics of manipulation. Among these efforts, Robert Noggle’s influencer-centered account of manipulation has been most significant. He defines manipulative acts as those whereby an agent intentionally influences a recipient’s attitudes so that they do not conform as closely as they otherwise would to the (...) pertinent norms and ideals endorsed by the influencer. This provides a relatively simple and in many ways clear definition of manipulation. It sidesteps thorny debates about autonomy, freedom, or practical rationality. It also promises to reveal a conceptual parallel between manipulating and lying, and thus to explain why manipulation is pro tanto wrong. In one respect, however, the account remains ambiguous: It remains unclear whether, and to what extent, it requires that influencers’ beliefs about what is ideal for their recipients to be grounded in some effort on the part of the influencer to identify with or take on the role of her recipient. This paper explains this ambiguity. It argues that influencer-centrism cannot remain indifferent to the validity of an agent’s beliefs about the ideal state of the recipient and provide an identification requirement that would render the whole account plausible and sufficiently determinate. (shrink)

This paper critiques the version of the argument that the regulation of hateful speech by the state undermines its democratic legitimacy made by Ronald Dworkin and James Weinstein. It argues that in some cases the harmful effects of hateful speech on the democratic process outweigh those of restriction. It does not challenge the central premise of the Legitimacy Argument, that a wide-ranging right to freedom of expression is an essential political right in a liberal democracy. Instead, it uses ideal and (...) nonideal theory as a framework for judgements about the regulation of hate speech. The mistake underpinning the Legitimacy Argument is that it assumes that other conditions pervade that make an ideal democratic procedure possible when they do not. In reality the state can be put in a position where, whatever course of action it takes with regard to the regulation or non-regulation of hate speech, some citizens will not be able to participate fully in political deliberation. Under such conditions there remain strong pro tanto reasons not to regulate hate speech on democratic grounds, but they are not all-things-considered reasons, and there are also pro tanto reasons to regulate hate speech that might outweigh them in some cases. This leads to the cautious conclusion that while there might be a normative justification for the regulation of hate speech in individual instances, the debate is best understood as one between competing pro tanto reasons, and must be approached on a case-by-case basis. (shrink)

This paper presents the results of training an artificial neural network (ANN) to classify moral situations. The ANN produces a similarity space in the process of solving its classification problem. The state space is subjected to analysis that suggests that holistic approaches to interpreting its functioning are problematic. The idea of a contributory or pro tanto standard, as discussed in debates between moral particularists and generalists, is used to understand the structure of the similarity space generated by the ANN. (...) A spectrum of possibilities for reasons, from atomistic to holistic, is discussed. Reasons are understood as increasing in nonlocality as they move away from atomism. It is argued that contributory standards could be used to understand forms of nonlocality that need not go all the way to holism. It is also argued that contributory standards may help us to understand the kind of similarity at work in analogical reasoning and argument in ethics. Some objections to using state space approaches to similarity are dealt with, as are objections to using empirical and computational work in philosophy. (shrink)

The purpose of this paper is to consider the question of whether we have a duty to forgive those who repent and apologize for the wrong they have done. I shall argue that we have a pro tanto duty to forgive repentant wrongdoers, and I shall propose and consider the norm of forgiveness. This norm states that if a wrongdoer repents and apologizes to a victim, then the victim has a duty to forgive the wrongdoer, other things being (...) equal. That someone has a pro tanto duty to forgive a repentant wrongdoer means that he or she ought to forgive unless other considerations outweigh the norm of forgiveness. Furthermore, a distinction is made between what are termed 'general considerations' and 'case-relative considerations', and it is argued that only after all the relevant considerations have been examined can it be determined whether there is a duty to forgive, all things considered. (shrink)

Is there is a moral obligation to militarily intervene in another state to stop a genocide from happening (if this can be done with proportionate force)? My answer is that under exceptional circumstances a state or even a non-state actor might have a duty to stop a genocide (for example if these actors have promised to do so), but under most circumstances there is no such obligation. To wit, “humanity,” states, collectives, and individuals do not have an obligation to (...) make such promises in the first place or to create institutions that would impose a legal obligation of intervention upon them. Nor do states or persons or humanity “collectively” have – originally, without specifically creating such duties by contracts or promises – any pro tanto or special duties to save strangers at considerable cost to themselves or their own citizens (including their soldiers). That is, these costs do not merely override a duty to intervene, but rather there is no such duty to begin with – as shown by the fact that in such cases of non-intervention agents would not owe those they let die any compensation: if I do not save someone’s life because saving him would have cost me my arm or would have come with a high risk of losing my own life or would have forced me to kill innocent bystanders, I do not owe this person compensation. Thus the point of this chapter is that there is no “natural” or “general” or “original” duty to militarily intervene (or to create a legal obligation) to stop a genocide. I will consider and refute a number of arguments to the contrary, for example by Lango, Tan, and Pattison. (shrink)

This essay argues that Marcus Garvey held a constructivist theory of self-determination, one that saw nationalism and transnationalism as mutually necessary and reinforcing ideals. The argument proceeds in three steps. First it recovers Garvey’s transnationalist emphasis by looking at his intellectual debts to other diaspora struggles, namely political Zionism and Irish nationalism. Second it argues that Garvey held a constructivist view of national identity, which also grounds his argument that the black diaspora has a right to collective self-determination. Third it (...) explicates Garvey’s further contention that the right to self-determination and the persistence of oppression give the African diaspora a pro tanto claim to an independent state, which he considered essential to vanquishing white supremacy and realizing collective self-rule. (shrink)

Birks and Buyx (2018) claim that, at least in the foreseeable future, nonconsensual neurointerventions will almost certainly suppress some valuable mental states and will thereby impose an objectionable harm to mental integrity—a harm that it is pro tanto wrong to impose. Of course, incarceration also interferes with valuable mental states, so might seem to be objectionable in the same way. However, Birks and Buyx block this result by maintaining that the negative mental effects of incarceration are merely (...) foreseen, whereas those of neurointerventions are intended. We dispute Birks and Buyx’s characterization of the descriptive difference between these effects. In both cases, the negative effects are caused, not constituted, by the act in question. (shrink)

There are many uses in English of the word “ought” (see Ought). This essay concerns the normative uses and the concepts or properties denoted thereby. In particular, it concerns two nonfinal oughts commonly used in the philosophical literature: prima facie oughts and pro tanto oughts.

International criminal law is dedicated to the battle against impunity. However, the concept of impunity lacks clarity. Providing that clarity also reveals challenges for the current state and future prospects of the project of ICL, which this article frames in cosmopolitan terms. The ‘impunity norm’ of ICL is generally presented in a deontic form. It holds that impunity for perpetrators of international crimes is a wrong so profound that states and international bodies have a pro tanto duty to (...) prosecute and punish perpetrators, a duty that cannot be overridden by considerations of cost, including the costs of infringing on the traditionally understood legal sovereignty of states. This deontic reading of the impunity norm is difficult to justify, a fact linked to the waning fortunes of ICL over the past several years. If ICL is to reverse this trend, the impunity norm’s strongly deontic reading should be replaced by a version derived from deliberative principles. (shrink)

Without needing to commit to any specific claims about what states of affairs have most agent-neutral value, we can nevertheless predict that states of affairs which are relatively valuable are also relatively likely to occur—on the grounds that, all else equal, at least some other agents are likely to recognize the value of those states of affairs, pursue them because they are valuable, and successfully bring them about as a consequence of that pursuit. This gives us a (...) way to promote value as such, rather than promoting it under some more tendentious description. We can predict that actions which help other people—or our own future selves—to recognize valuable states of affairs, actions which motivate them to pursue whatever states of affairs they believe to be valuable, or actions which help them succeed at their pursuits will, all else equal, have positive consequences. So we have a pro tanto reason to take such actions, and the subjective justification of that reason is independent of other moral claims. (shrink)

Cosmopolitans typically argue that the realization of cosmopolitan ideals requires the creation of global political institutions of some kind. While the precise nature of the necessary institutions is widely discussed, the problem of the transition to such an order has received less attention. In this paper, we address what we take to be a crucial aspect of the problem of transition: we argue that it involves a moral coordination problem because there are several morally equivalent paths to reform the existing (...) order, but suitably placed and properly motivated political agents need to converge on a single route for the transition to be successful. It is, however, unclear how such a convergence can take place since the duty to create global institutions does not single out any coordination point. We draw on the so-called theory of hegemonic stability to address this problem and conceptualize what we call the hegemonic transition. From an explanatory point of view, we rely on the theory’s insights to explain how a hegemon may contribute to the creation of a rules-based international order by providing salient coordination points and accordingly, enabling coordination among states. From the normative point of view, we identify necessary conditions for the hegemonic transition to be morally permissible. To the extent that these conditions obtain, other states have pro tanto moral reasons to follow the salient coordination point provided by the leading state. (shrink)