David Brink

This essay is a sympathetic reconstruction and assessment of Ronald Dworkin’s interpretive approach to the law, his insistence on the normative dimensions of interpretation, and his defense of right answers in legal interpretation. It looks at Dworkin’s critique of Hart’s model of rules and judicial discretion; Dworkin’s distinction between concepts and conceptions; his claim that constitutional adjudication should identify the best conception of the framers’ concepts, rather than reproducing their specific conceptions; and his account of constructive interpretation with its dimensions of fit and acceptability. I argue that Dworkin’s commitments support a kind of originalist jurisprudence, but an originalism of principle. The essay concludes by considering how normatively infused interpretation might be defended in the face of significant normative disagreement.

This book is a systematic and constructive treatment of a number of traditional issues at the foundation of ethics, the possibility and nature of moral knowledge, the relationship between the moral point of view and a scientific or naturalistic world view, the nature of moral value and obligation, and the role of morality in a person's rational life plan. In striking contrast to many traditional authors and to other recent writers in the field, David Brink offers an integrated defense of the objectivity of ethics.

I defend moral realism against various metaphysical and epistemological objections and develop a utilitarian specification of moral realism. ;Chapter 1. Moral realism is the claim that there are moral facts whose existence and nature are independent of our evidence for them. Moral realism derives appeal from the plausibility of realism about other disciplines and from the way we deliberate in moral matters. ;Chapter 2. Moral realism is not undermined by general epistemological objections. Realists can and should degend a coherentist epistemology. ;Chapter 3. Moral realism in not undermined by special epistemological objections. Neither the role of considered moral beliefs nor that of theories of the person in the justification of moral theories undermines moral realism. ;Chapter 4. Moral realism is not undermined by the existence of an is/ought gap. Even if there is an is/ought gap, consideration of analogous is/is gaps demonstrates that there can be moral facts and properties and that there can be evidential relations between moral and nonmoral beliefs. ;Chapter 5. Moral realism is neither metaphysically nor epistemologically queer. Moral facts and properties can be constituted by and so supervene upon facts and properties in other disciplines. Moral facts fulfill whatever explanatory obligation an a posteriori defense of moral realism imposes, and genuine moral disputes are resolvable in principle upon the basis of coherentist reasoning. ;Chapter 6. Although the defense of moral realism in chapters 1 through 5 requires no one moral theory, I develop a kind of utilitarian moral theory. This illustrates the kind of specific metaphysical and epistemological commitments which substatntive moral theories bring. Moreover, this utilitarian theory is plausible. The standard objections to utilitarianism fail to undermine this version of utilitarianism. This version of utilitarianism may not be uniquely reasonable, but it provides a plausible program for a realist view of ethics.

David Brink presents a study of T. H. Green's Prolegomena to Ethics (1883), a classic of British idealism. Green develops a perfectionist ethical theory that brings together the best elements in the ancient and modern traditions and that provides the moral foundations for Green's own influential brand of liberalism. Brink's book situates the Prolegomena in its intellectual context, examines its main themes, and explains Green's enduring significance for the history of ethics and contemporary ethical theory.

Consideration of the objection from the personal point of view reveals the resources of utilitarianism. The utilitarian can offer a partial rebuttal by distinguishing between criteria of rightness and decision procedures and claiming that, because his theory is a criterion of rightness and not a decision procedure, he can justify agents' differential concern for their own welfare and the welfare of those close to them. The flexibility in utilitarianism's theory of value allows further rebuttal of this objection; objective versions of utilitarianism can treat self-determination or autonomy as a dominant good which trumps even large magnitudes of lesser goods such as pleasure. After the resources of utilitarianism are exhausted, though, there remains a worry, generated by the personal point of view, about utilitarianism's impartiality. But this worry is correctly viewed, not as a moral worry about the merits of utilitarianism as a moral theory, but as a worry about morality concerning the rationality or supremacy of impartial moral demands. Whether or not this worry can be answered, the fact that it arises supports rather than undermines a utilitarian account of morality.

This collection of essays contains revised versions of papers delivered at a conference entitled “Duty, Interest, and Practical Reason: Aristotle, Kant, and the Stoics” that was organized by Stephen Engstrom and Jennifer Whiting at the University of Pittsburgh in 1994. One of the main aims of the conference was to bring together scholars on Aristotle, the Stoics, and Kant to reevaluate the common view that Greek and Kantian ethics represent fundamentally opposed conceptions of ethical theory and the roles of morality and happiness in practical reasoning. According to a common view, the ancients are eudaimonists; they derive or justify the virtues by showing how they contribute to the agent’s own eudaimonia or happiness. By contrast, Kant sharply criticizes eudaimonism for deriving or justifying morality in terms of happiness. This criticism applies to eudaimonism of all sorts, even Stoic eudaimonism, which is perhaps closer in some respects to Kant’s own views, and of which he is somewhat less critical than he is of other forms of eudaimonism. For Kant, moral duty and respect for the moral law must be grounded in reason itself and cannot be made to depend on any independent standard. These and related assumptions about ancient and Kantian ethics have helped structure much contemporary systematic work in ethical theory, as well as common conceptions of these ethical traditions. But this common view has been under reexamination lately; some of the most interesting work in the history of ethics in recent years has been in Greek and Kantian ethics, and much of it challenges one or another aspect of the received view of the ethical theory and moral psychology of Kant or the Greeks. However, with some exceptions, renewed interest and recent work in these two traditions has proceeded in parallel. The conference aimed to correct this, by bringing together some of the most distinguished scholars of ancient and modern ethics to compare and assess the role of moral duty and happiness in the two traditions. Most of the essays have such a comparative assessment as their main theme; but even those that focus more exclusively on one of the traditions contribute indirectly to this comparative assessment.

All forms of consequentialism make the moral assessment of alternatives depend in some way on the value of the alternatives, but they form a heterogeneous family of moral theories. Some employ subjective assumptions about value, while others employ objective assumptions. Some assess the value of alternatives directly, while others assess value indirectly. Some direct agents to maximize value, while others direct agents to satisfice. Some, such as utilitarianism, are impartial and concerned to promote agent-neutral value, while others, such as self-referential altruism and perfectionist egoism, are partial and concerned to promote agent-relative value. This chapter focuses on the contrast between agent-neutral and agent-relative consequentialism. The chief attraction of agent-neutral consequentialism lies in its interpretation of impartiality. This interpretation is robust, and has the resources to answer criticisms that it cannot accommodate agent-relative constraints and options. However, it is difficult to fit associated duties into the intellectual net of agent-neutral consequentialism. Accommodating partiality requires an agent-relative form of consequentialism.

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.

I argue that disputes within constitutional theory about whether recent supreme court decisions exceed the scope of legitimate judicial review and disputes within legal theory about the nature and determinacy of law are best seen and assessed as disputes over the nature of legal interpretation. I criticize the interpretive assumptions on which these disputes generally depend and defend a theory of interpretation which tends to vindicate the determinacy of law even in hard cases and the style of recent court decisions which many critics find troublesome.

What role, if any, should our moral intuitions play in moral epistemology? We make, or are prepared to make, moral judgments about a variety of actual and hypothetical situations. Some of these moral judgments are more informed, reflective, and stable than others (call these ourconsideredmoral judgments); some we make more confidently than others; and some, though not all, are judgments about which there is substantial consensus. What bearing do our moral judgments have on philosophical ethics and the search for first principles in ethics? Should these judgments constrain, or be constrained by, philosophical theorizing about morality? On the one hand, we might expect first principles to conform to our moral intuitions or at least to our considered moral judgments. After all, we begin the reflection that may lead to first principles from particular moral convictions. And some of our moral intuitions (e.g., that genocide is wrong) are more fixed and compelling than any putative first principle. If so, we might expect common moral beliefs to have an important evidential role in the construction and assessment of first principles. On the other hand, common moral beliefs often rest on poor information, reflect bias, or are otherwise mistaken. We often appeal to moral principles to justify our particular moral convictions or to resolve our disagreements. Insofar as this is true, we may expect first principles to provide a foundation on the basis of which to test common moral beliefs and, where necessary, form new moral convictions.

Whether morality has rational authority is an open question insofar as we can seriously entertain conceptions of morality and practical reason according to which it need not be contrary to reason to fail to conform to moral requirements. Doubts about the authority of morality are especially likely to arise for those who hold a broadly prudential view of rationality. It is common to think of morality as including various other-regarding duties of cooperation, forbearance, and aid. Most of us also regard moral obligations as authoritative practical considerations. But heeding these obligations appears sometimes to constrain the agent's pursuit of his own interests or aims. If we think of rationality in prudential terms–as what would promote the agent's own interests–we may wonder whether moral conduct is always rationally justifiable. Indeed, we do not need to think of rationality in exclusively prudential terms to raise this worry. The worry can arise even if there are impartial reasons–that is, nonderivative reasons to promote the welfare of others

This contribution reconstructs and assesses Gideon Yaffe’s claims in his book Attempts about what constitutes an attempt, what can count as evidence that an attempt has been made, whether abandonment is a genuine defense, and whether attempts should be punished less severely than completed crimes. I contrast Yaffe’s account of being motivated by an intention and the completion of an attempt in terms of the truth of the completion counterfactual with an alternative picture of attempts as temporally extended decision trees that are complete insofar as the agent has progressed toward the final act in the tree. I suggest that this alternative scalar conception of attempt may provide a more plausible account of the defense of abandonment. I also raise questions about whether Yaffe has provided an adequate justification of his mix of luck skepticism about censure and luck realism about punishment.

This essay situates some recent empirical research on the origin, nature, role, and reliability of moral intuitions against the background of nineteenth-century debates between ethical naturalism and rational intuitionism. The legitimate heir to Millian naturalism is the contemporary method of reflective equilibrium and its defeasible reliance on moral intuitions. Recent doubts about moral intuitions—worries that they reflect the operation of imperfect cognitive heuristics, are resistant to undermining evidence, are subject to framing effects, and are variable—are best addressed by ethical naturalism as part of a broad dialectical equilibrium.

Consequentialism is often criticized for failing to accommodate impersonal constraints and personal options. A common consequentialist response is to acknowledge the anticonsequentialist intuitions but to argue either that the consequentialist can, after all, accommodate the allegedly recalcitrant intuitions or that, where accommodation is impossible, the recalcitrant intuition can be dismissed for want of an adequate philosophical rationale. Whereas these consequentialist responses have some plausibility, associational duties represent a somewhat different challenge to consequentialism, inasmuch as they embody neither impersonal constraints nor personal options, but rather personal constraints. Our intuitions about associational duties resist capture within the intellectual net of consequentialism, and such duties do admit of a philosophical rationale at least as plausible as anything the consequentialist has to offer.

terence irwin’s monumental three-volume The Development of Ethics is a masterful reconstruction and assessment of figures, traditions, and ideas in the history of ethics in the Western tradition from Socrates through John Rawls.1, 2 The three volumes weigh in at over 11 pounds and span 96 substantial chapters and over 2,700 densely formatted pages (large pages, small margins, and small font). The Development of Ethics covers not only familiar figures, such as Plato, Aristotle, the Stoics, Aquinas, Hobbes, Locke, Hutcheson, Butler, Hume, Smith, Reid, Kant, Hegel, Mill, Green, and Sidgwick, but also a rich variety of ancient sources (including the Cynics, Cyrenaics, Skeptics, and Church Fathers, including..

The situationist literature in psychology claims that conduct is not determined by character and reflects the operation of the agent's situation or environment. For instance, due to situational factors, compassionate behavior is much less common than we might have expected from people we believe to be compassionate. This article focuses on whether situationism should revise our beliefs about moral responsibility. It assesses the implications of situationism against the backdrop of a conception of responsibility that is grounded in norms about the fair opportunity to avoid wrongdoing that require that agents to be normatively competent and possess situational control. Despite the low incidence of compassionate behavior revealed in situationist studies, situationism threatens neither situational control nor normative competence. Nonetheless situationism may force revision of our views about responsibility in particular contexts, such as wartime wrongdoing. Whereas a good case can be made that the heat of battle can create situational pressures that significantly impair normative competence and thus sometimes provide a full or partial excuse, there is reason to be skeptical of attempts to generalize this excuse to other contexts of wartime wrongdoing. If so, moral responsibility can take situationism on board without capsizing the boat.

Since his article, ‘Outline for a Decision Procedure in Ethics,’ John Rawls has advocated a coherentist moral epistemology according to which moral and political theories are justified on the basis of their coherence with our other beliefs, both moral and nonmoral. A moral theory which is maximally coherent with our other beliefs is in a state which Rawls calls ‘reflective equilibrium’. In A Theory of Justice Rawls advanced two principles of justice and claimed that they are in reflective equilibrium. He defended this claim by appeal to a hypothetical contract; he argued that parties in a position satisfying certain informational and motivational criteria, which he called ‘the original position,’ would choose the following two principles of justice to govern the basic structure of their society.

Recent moral philosophy has seen a revival of interest in the concept of virtue, and with it a reassessment of the role of virtue in the work of Aristotle and Kant. This book brings that reassessment to a new level of sophistication. Nancy Sherman argues that Kant preserves a notion of virtue in his moral theory that bears recognizable traces of the Aristotelian and Stoic traditions, and that his complex anthropology of morals brings him into surprising alliance with Aristotle. She develops her argument through close readings of major texts by both Aristotle and Kant, illustrating points of congruence and contrast.

It is common to regard love, friendship, and other associational ties to others as an important part of a happy or flourishing life. This would be easy enough to understand if we focused on friendships based on pleasure, or associations, such as business partnerships, predicated on mutual advantage. For then we could understand in a straightforward way how these interpersonal relationships would be valuable for someone involved in such relationships just insofar as they caused her pleasure or causally promoted her own independent interests. But many who regard love, friendship, and other associational ties as an important part of a happy or flourishing life suppose that in many sorts of associations—especially intimate associations—the proper attitude among associates is concern for the other for the other's own sake, not just for the pleasure or benefits one can extract from one's associates. It is fairly clear how having friends of this sort is beneficial. What is less clear is how being a friend of this sort might contribute to one's own happiness or well-being. Even if we can explain this, it looks as if the contribution that friendship makes to one's happiness could not be the reason one has to care for friends, for that would seem to make one's concern for others instrumental, not a concern for the other for her own sake.