Re'em Segev

In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form of the argument, the latter is concerned with a substantiation of one premise in the argument.

The paper considers a hierarchical theory that combines concern for two values: individual well-being – as a fundamental, first-order value – and (distributive) fairness – as a high-order value that its exclusive function is to complete the value of individual well-being by resolving internal clashes within it that occur in interpersonal conflicts. The argument for this unique conception of high-order fairness is that fairness is morally significant in itself only regarding what matters – individual well-being – and when it matters – in interpersonal conflicts in which constitutive aspects of individual well-being clash. Consequently, the proposed theory is not exposed to claim that fairness comes at the expense of welfare. This theory is considered within a consequential framework, based on the standard version and, alternatively, on a novel interpretation of consequentialism. Thus, it refutes the claim that consequentialism does not take the distinction between persons seriously.

In several papers, I have argued for a theory of distributive justice and considered its implications. This theory includes a principle of responsibility that was endorsed by others within an account of defensive force (self-defense and defense of others). Whitley Kaufman criticizes this account which he refers to as the "distributive justice theory of self-defense" (DJ theory). In this paper, I respond to this criticism. I argue that Kaufman presents the theory inaccurately, that his standard of evaluation of the theory is inadequate and that his claim that the theory should be rejected is unconvincing.

"Freedom of expression" is a complex notion that reflects various considerations and raises many questions related to their content and interaction. This paper is an abstract of a book that considers general aspects regarding the justification and the limits of freedom of expression and analyzes exiting law in light of this normative discussion. Particularly, it considers the way to determine the proper scope of freedom of expression; first-order and second-order considerations in favor and against freedom of expression, both in general and regarding central specific kinds of expressions; and possible ways to normatively regulate the field of expressions - in particular to restrict expressions, primarily by law - and specifically the common view that subsequent punishment for an expression is generally preferable to prior restraint of an expression.

Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a less-responsible person, but that this consideration is not necessarily decisive but rather might be outweighed by another consideration, for example, in favor of preventing the more serious harm. I conclude that responsibility for the conditions of justificatory defenses raises a unique question whose proper resolution should be based on the interaction of several general considerations.

Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are very general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both.

The article explores the Israeli Supreme Court main judgment regarding the legality of the use of special interrogation methods in order extract information concerning future acts of terror. The Judgment's main conclusion was that while there might be a justification for using exceptional interrogation measures in order to save lives, based on the concept of lesser evil as embedded in the criminal defense of necessity, the government is nevertheless not authorized to use such means in the absence of explicit legislation to that effect. The article presents and evaluates the Judgment, particularly the relation between the substantive moral questions involved and the aspect of authorization.