David Enoch

A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law[1]. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way be normative?[2] This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent[3]. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase[4]. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law..

Moral disagreement is widely held to pose a threat for metaethical realism and objectivity. In this paper I attempt to understand how it is that moral disagreement is supposed to present a problem for metaethical realism. I do this by going through several distinct (though often related) arguments from disagreement, carefully distinguishing between them, and critically evaluating their merits. My conclusions are rather skeptical: Some of the arguments I discuss fail rather clearly. Others supply with a challenge to realism, but not one we have any reason to believe realism cannot address successfully. Others beg the question against the moral realist, and yet others raise serious objections to realism, but ones that—when carefully stated—can be seen not to be essentially related to moral disagreement. Arguments based on moral disagreement itself have almost no weight, I conclude, against moral realism.

Jeremy Waldron’s Law and Disagreement1 is an extremely important and influential book. Not only is it probably the best known recent text presenting the case against judicial review, but it is also rich in details and arguments regarding related but distinct issues such as the history of political philosophy, the relevance of metaethics to political philosophy, the desirable structure of legislative bodies, the justification of democracy and majoritarianism, Rawls’ political philosophy, and much more. In commenting on such rich work, then, the difficulty is not to find things to disagree (or indeed agree) with, but rather to pick and choose among the many topics one can discuss. Below I focus on what seem to me like central difficulties in the more general political philosophy Waldron seems to endorse, and in its application to the topic of judicial review.

In Slaves of the Passions Mark Schroeder puts forward Hypotheticalism, his version of a Humean theory of normative reasons that is capable, so he argues, to avoid many of the difficulties Humeanism is traditionally vulnerable to. In this critical notice, I first outline the main argument of the book, and then proceed to highlight some difficulties and challenges. I argue that these challenges show that Schroeder's improvements on traditional Humeanism – while they do succeed in making the view more immune to some argumentative moves and somewhat more plausible – pushes rather strongly in non-Humean directions. This, together with the remaining failures of Schroeder's Hypotheticalism, should make us more rather than less suspicious of the prospects of Humeanism.

For many years, moral philosophers have been debating the conceptual and moral status of the distinction between intending harm and foreseeing harm. In this paper, after surveying some of the objections to the moral significance of this distinction in general, I focus on the special case of state action, arguing that whatever reasons we have to be suspicious about the distinction's moral significance in general, we have very good reasons to believe it lacks intrinsic moral significance when applied to state action. After arguing for this claim, I pursue in a preliminary way some of its implications

More and more people seem to think that constructivism - in political philosophy, in moral philosophy, and perhaps in practical reasoning most generally - is the way to go. And yet it is surprisingly hard to even characterize the view. In this paper, I go to some lengths trying to capture the essence of a constructivist position - mostly in the realm of practical reason - and to pinpoint its theoretical attractions. I then give some reason to suspect that there cannot be a coherent constructivist view about practical reason as a whole, at least not if it is to be interestingly constructivist, in a sense I make reasonably precise.

You may think that you're a moral relativist or subjectivist - many people today seem to. But I don't think you are. In fact, when we start doing metaethics - when we start, that is, thinking philosophically about our moral discourse and practice - thoughts about morality's objectivity become almost irresistible. Now, as is always the case in philosophy, that some thoughts seem irresistible is only the starting point for the discussion, and under argumentative pressure we may need to revise our relevant beliefs. Still, it's important to get the starting points right. So it's important to understand the deep ways in which rejecting morality's objectivity are unappealing

In "Moral Luck" Bernard Williams famously drew on our intuitive judgments about agent-regret – mostly, on our judgment that agent-regret is often appropriate – in his argument about the role of luck in rational and moral evaluation. I think that Williams is importantly right about the appropriateness of agent-regret, but importantly wrong about the implications of this observation. In this paper, I suggest an alternative understanding of the normative judgment Williams is putting forward, the one about the appropriateness of agent-regret. I distinguish between being responsible and taking responsibility. The judgment about the appropriateness of agent-regret, I argue, is better understood as a judgment about the (forward-looking) moral duty to take responsibility than about the (backward-looking) fact of being responsible. The distinction between being responsible and taking responsibility is wider in scope, though, than the discussion of agent-regret, and in this paper I go to some lengths elaborating on this distinction and its theoretical usefulness. Thus, I distinguish different senses of taking responsibility (forward- and backward-looking; just acknowledging responsibility that is already there vs. making it the case that one is responsible); I argue against initial doubts about the very coherence of this stronger understanding of taking-responsibility; and I specify the background conditions for the possibility of taking responsibility in this strong sense. The discussion of the normative background conditions necessary for the possibility of taking responsibility in the strong sense leads to a discussion of an intuitive notion of penumbral agency. Thus, I cannot take responsibility for Jefferson's owning slaves – the relevant actions and events are just too far from my agency to allow for me to take responsibility over them. Of course, I can issue statements that sound like an attempt to take responsibility. But I cannot thereby become responsible. It is just not within my power to make it the case that I am responsible for Jefferson's slave-ownership. At the other extreme, for some things I do not need to take responsibility in order to be responsible. For my actions – or perhaps intentions, or some such – I am already responsible, independently of whether I ever take (or even acknowledge) responsibility. These things are within the core of my agency, and I am responsible for them regardless of whether I take responsibility for them. But we should acknowledge the fact that there is more to this spectrum than just the extremes. Some actions and events are not within my core agency, but nor are they too far to allow me to take responsibility for them (thereby becoming responsible for them). Possible examples include the actions of my country, the actions of my rather young children, and – now getting back to Williams's discussion – the uncontrolled consequences of my actions. In these cases of penumbral agency, I argue, we are not responsible, but we can become responsible by taking responsibility. Furthermore, we may have a moral duty to take responsibility. Thus, the distinction between being responsible and taking responsibility is theoretically useful in accounting for our intuitively problematic and ambivalent responsibility-judgments. In the case of my country's actions, for instance, we want to say both that I am not responsible for them (given my very limited power to influence them); but we also want to say that there's something wrong about my refusing to accept responsibility for my country's actions, or about my just noting that I am not responsible for those actions. Utilizing the distinction between being responsible and taking responsibility, we can say that while I am not responsible for my country's actions, I am under a moral duty to take (some) responsibility for them. In the case of agent-regret and moral luck, this distinction allows us – vis-à-vis Williams – to have our cake and eat it too. True, agent-regret is often appropriate. But this shows nothing directly about responsibility. Rather, it shows something about our moral duties to take responsibility. And that these duties are sensitive to lucky circumstances is not more mysterious or paradoxical than the circumstances-sensitivity of pretty much all of our other moral duties. In other words, thus understood, the appropriateness of agent-regret is perfectly compatible with the denial of moral luck.

1. The Shmagency Challenge to Constitutivism In metaethics – and indeed, meta-normativity – constitutivism is a family of views that hope to ground normativity in norms, or standards, or motives, or aims that are constitutive of action and agency. And mostly because of the influential work of Christine Korsgaard and David Velleman, constitutivism seems to be gaining grounds in the current literature. The promises of constitutivism are significant. Perhaps chief among them are the hope to provide with some kind of answer to the skeptic about morality or perhaps practical reason, and the hope to secure for practical reason a kind of objectivity that is consistent with its practical, motivationally engaged nature. The former philosophical motivation for constitutivism – most clearly present in much of Korsgaard’s relevant work[1] – relies on the fact that constitutive norms seem to be less mysterious than not-clearly-constitutive norms. There arguably is nothing mysterious about, say, the norms of certain reasonably-well-defined activities, like building a house, or playing chess. And challenges by the relevant skeptic – the one asking "Why should I make sure the house I’m building can shelter people from the weather?" or "Why should I not castle when my king is checked?" – seem very rare, barely intelligible, and anyway remarkably easy to cope with. We should explain to the misguided skeptic that if he doesn’t even try to build something that can protect people from the weather, he’s not in the business of building a house at all; that if she doesn’t even try to play by the rules of chess, she’s not in the business of playing chess at all; and so on. It would be nice, the constitutivist hope seems to go, if we had something equally powerful by way of a response to the skeptic asking "Why be moral?". The other main motivation for constitutivism – most clearly present in David Velleman’s relevant work[2] – starts from a commitment to some rather strong kind of existence-internalism about reasons: An agent has a reason to?, according to such views ), only if she can come to?, or at least to be motivated to?, by sound deliberation starting from her actual motivational set.

How should you update your (degrees of) belief about a proposition when you find out that someone else — as reliable as you are in these matters — disagrees with you about its truth value? There are now several different answers to this question — the question of `peer disagreement' — in the literature, but none, I think, is plausible. Even more importantly, none of the answers in the literature places the peer-disagreement debate in its natural place among the most general traditional concerns of normative epistemology. In this paper I try to do better. I start by emphasizing how we cannot and should not treat ourselves as `truthometers' — merely devices with a certain probability of tracking the truth. I argue that the truthometer view is the main motivation for the Equal Weight View in the context of peer disagreement. With this fact in mind, the discussion of peer disagreement becomes more complicated, sensitive to the justification of the relevant background degrees of belief (including the conditional ones), and to some of the most general points that arise in the context of discussions of scepticism. I argue that thus understood, peer disagreement is less special as an epistemic phenomenon than may be thought, and so that there is very little by way of positive theory that we can give about peer disagreement in general.