Alec Walen

Ideally, should liberals in a pluralistic society be able to agree to abide by a common legal system such that all their disputes are resolved without resort to illegal force? Rawls believes the answer is “yes.” I explain and defend his answer, but I also conclude, focusing on the example of abortion, that the truth is “not necessarily, not always.” Rawls’s conceptions of reasonable citizens and public reason help explain why there is a strong prima facie duty to forswear illegal force. It is based on the duty to respect others, which requires that one be able to justify one's actions to them insofar as they are reasonable and matters of basic justice are at issue. One cannot justify using illegal force to those who reasonably think a law is just; to them it is a form of disrespect. Nonetheless, if one reasonably thinks that a fundamental injustice is tolerated or even established by the law, then one may be no less reasonable than one has reason to be if one uses illegal force, sacrificing this form of respect to right a greater wrong.

Victor Tadros defends a subjective, intention-focused interpretation of the means principle (MP), according to which to use another as a means is to form plans or intentions in which the other serves as a tool for advancing one's ends. My thesis here is that Tadros's defense of the subjective interpretation of the MP is unsuccessful. To make that case I argue for three claims. First, the subjective interpretation has implausibly harsh implications in certain cases, implying that certain people would be guilty of much more serious wrongs than they can plausibly be thought to have committed. Second, the cases that Tadros offers to argue that the subjective interpretation of the MP must be right are better interpreted as showing that it is impermissible to act on an illicit intention -- one that would direct an agent under certain, foreseeable circumstances to perform impermissible acts -- than that it is impermissible to act for an illicit reason. Third, while Tadros correctly rejects the objective, causal-role-focused interpretation of the MP -- according to which to use another as a means is for the other to play the causal role of means to the good which might be offered to justify the act one performs -- there is another way of defending the significance of causal roles, one that has implications that track those of the MP fairly closely. I argue elsewhere at length for this other principle, which I call the Restricting Claims Principle. Here I simply sketch the basic idea in a way sufficient to show that one can escape the dilemma that the MP faces without grabbing either the subjective or the objective horn, and without moving into a consequentialist world in which it is permissible to punish the innocent for the sake of the general welfare.

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should. I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.

Certain theorists argue that intention cannot be a wrong-making feature of actions because (a) it is morally impermissible to encourage morally impermissible actions; (b) there are certain putatively impermissible actions that seem to be impermissible because of the intention with which they are performed; and (c) at least some of these actions can permissibly be encouraged. If one accepts (a) and (c), then one should conclude that these actions cannot really be impermissible. This paper rejects the premise that it is always impermissible to encourage impermissible acts. The argument explores three ways one could encourage an act that would be permissible but for its being performed with a wrong-making intention. It argues that there is at most a strong but defeasible presumption against encouraging the performance of impermissible actions.

I argue that nonresident aliens, in places that are clearly not U.S. territory, should benefit from constitutional rights. This is a matter of mutuality of obligation. The U.S. claims the authority to hold all people accountable for respecting certain laws, such as the law of war as defined in the Military Commissions Act. Accordingly, it must accord them basic legal rights in return. At the same time, I argue, contra Benjamin Wittes, that this would not lead to absurdly opening the courthouse doors, nor does it require abandoning principle to keep the flood of litigation reasonably contained. Not all harms inflicted by the U.S. government can give rise to a lawsuit, and that the distinction between those who should have a right to sue and those who should not can be drawn in a principled way.

Judith Jarvis Thomson recently argued that it is impermissible for a bystander to turn a runaway trolley from five onto one. But she also argues that a trolley driver is required to do just that. We believe that her argument is flawed in three important ways. She fails to give proper weight to (a) an agent¹s claims not to be required to act in ways he does not want to, (b) impartiality in the weighing of competing patient-claims, and (c) the role of patient-claims in determining agent-duties. All three of these failures can be understood in terms of what we call the Mechanics of Claims, an approach we develop for identifying and balancing competing claims in determining rights. Using that framework, one can see both why Thomson's most recent argument is mistaken, and how to think more clearly about deontological choices generally

A robust, if not absolute, prohibition on treating people merely as a means seems to sit at the core of common sense deontological morality. But the principle prohibiting such treatment, the ‘means principle’ (MP), has been notoriously hard to defend: both the subjective, intention-focused and the objective, causal-role-focused interpretations of what it means to use someone as a means face potent objections. In this paper, my goal is not to defend the MP, but to articulate and defend a new principle, which I call the Restricting Claims Principle (RCP), that explains why a person’s causal role is morally significant. The RCP broadens the basic frame of relevant considerations from the MP’s concern with the dyadic relationship between agent and patient to a global balance of patient-claims on an agent. It distinguishes two kinds of patient-claims that weigh in that balance: restricting and non-restricting. In most cases, these can be distinguished as follows: Restricting claims, if respected as rights, would restrict an agent from doing what she could otherwise permissibly do if the claimant (or his property) were absent; non-restricting claims, if respected as rights, would not in that way restrict an agent. Only restricting claims press to make others worse off than if the claimant were absent. The RCP holds that restricting claims must therefore be substantially weaker than non-restricting ones. The claims of those who would be used as a means are non-restricting, while the claims of those who would be harmed as a side effect are restricting. Thus the RCP can account for the same cases (mostly) as the MP, without having to rely on the MP to do so

In an earlier article, I introduced the “restricting claims principle” to explain what is right about the means principle: the idea that it is harder to justify causing or allowing someone to suffer harm if using him as a means than if causing or allowing harm as a side effect. The RCP appeals to the idea that claims not to be harmed as a side effect push to restrict an agent from doing what she would otherwise be free to do for herself or others, given an appropriate account of her baseline freedom. Claims not to be harmed as a means are not in that way ‘‘restricting.’’ The original RCP relied on a counterfactual account of the agent’s baseline freedom: What could the agent permissibly do if the patient were not present? I argue here that that counterfactual baseline fails. The revised RCP relies instead on a ‘‘toolkit baseline’’: Do the patient claims concern the property the agent needs to use? This toolkit baseline reflects the different ways that agents relate to others: as fellow agents with whom they divide up the resources of the world, and as patients who might be affected by their actions. The toolkit baseline, resting on this agent-patient divide, provides a superior account of an agent’s baseline freedom, and a better account of the moral ground for the means principle.

Gideon Yaffe’s “subjectivism about attempts” rest on the Transfer Principle: “If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized.” From the perspective of a moral concern with culpability, this principle seems to get to the heart of the matter: the true essence of what is wrong with attempting to commit a crime. Unfortunately, Yaffe’s argument for the Transfer Principle is based on an equivocation and therefore logically unsound. The moral core of the Principle is still sound, but we can’t tell from Yaffe’s book how far that principle would take us in the criminal law.

Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something

Deontology holds that the rules or principles that govern the permissibility of actions cannot be derived simply from the goal of promoting good consequences. The definition has to be given negatively because there is still much disagreement about what positively grounds these rules or principles. The articles in this special issue—collected mostly from papers presented at a conference sponsored by the Institute for Law and Philosophy at Rutgers UniversityOne paper in this issue, from Gerhard Øverland, was not presented at the conference with the rest. He was scheduled to present his paper, but could not attend the conference because he was diagnosed with cancer. He died of cancer shortly after submitting his article to this issue. This is a great loss to his friends and collaborators, and to the philosophical community as a whole.—cover a fairly representative range of these different views. The truth about deontology—including whether it is true at all—is important to criminal law in ..

According to the Doctrine of Illicit Intentions, it is impermissible both to form and then to act on an illicit intention. An intention is illicit, roughly, if it causes the agent who has it to be, in a certain way, disposed to perform actions that are impermissible. If the range of actions an agent might be directed to perform by an intention includes impermissible actions, then it may be impermissible to form or act on that intention even if, in the end, the agent performs no action that is impermissible (other than forming and acting on an illicit intention itself).

It is often argued that suspected terrorists captured in the war on terror can be detained just the same way captured enemy soldiers can: until the relevant war is over. But there is a deep disanalogy between suspected terrorists and captured enemy soldiers. Soldiers cannot be held accountable for the use of force , whereas terrorists normally can. Detaining people who can be held accountable as if they cannot is crossing an important moral line, sacrificing the rights of the individual for the welfare of the whole

At the heart of Seth Lazar’s arguments in support of what he calls Moral Distinction – ‘In war, with rare exceptions, killing noncombatants is worse than killing combatants’ – is his treatment of eliminative and opportunistic killing. He adopts the standard line, that eliminative killing is easier to justify than opportunistic killing. And he acknowledges that there are various circumstances in which one might be able to justify killing noncombatants on eliminative grounds. Nonetheless, he relies on the notion of a mixed kind of agency to argue that intentionally killing civilians is normally ‘more opportunistic than intentionally killing soldiers’, and is therefore normally more wrongful. I argue that his argument in favor of this claim fails. If we distinguish objectively available reasons from subjectively motivating ones, and pay attention to the limited relevance of subjectively motivating reasons, then it becomes clear that mixed agency cannot do the sort of work for just war theory that Lazar wants it to do. This failure need not impugn other parts of his defense of Moral Distinction. But it takes the heart out of his defense of it, putting a greater burden on the other parts of his argument.

In this piece I reply to comments on my book, The Mechanics of Claims and Permissible Killing in War, by Ralf Poscher and Pavlos Eleftheriadis. Poscher points out that my discussion of rights gave short shrift to the notion of dignity; my reply here gives me the welcome opportunity to correct that oversight. Eleftheriadis dissects my methodology, trying to shoehorn my theory into an existing category; my reply here gives me an opportunity to clarify why it is not just a variation on a familiar theme but in fact it represents a new approach to rights.

Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs.

The moral justification for targeted killing turns on it being justified as an act of self-defense. That justification can be assessed by addressing five questions: Is the targeted person a threat who lacks the right to threaten? Has the targeted person forfeited some of her claim not to be killed? Even if the answer to the first two questions is positive, is targeted killing a necessary and proportionate response? Is the evidence in favor of targeted killing high enough to meet the relevant standard of proof? And insofar as a person is selected for targeting from a larger group of possible targets, is the selection justifiable? The legal justifiability of targeted killing should aim to track, as much as problems of administrability and limiting unwanted effects allow, the answers to those moral questions.

This book develops an alternative account of rights according to which rights forfeiture has a much smaller role to play because rights themselves are more contextually contingent. For example, those who threaten to cause harm without a right to do so have weaker claims not to be killed than innocent bystanders or those who have a right to threaten to cause harm. By framing rights as the output of a balance of competing claims, and by laying out a detailed account of how to balance competing claims, Walen provides a more coherent account of when killing in war is permissible.

Punishment should, at least normally, be reserved for blameworthy actions. But to make sense of that claim, we need an account of blame and of why it might license or even call for punishment. Doug Husak, in whose honor this paper is written, rejects quality of will theories of blame as relevant to criminal punishment – what I call ‘criminal blame’. He offers instead a reason-responsive account of blameworthiness, according to which blame applies to wrongful actions chosen by agents who knew that what they were doing was or was likely to be wrong, and who nonetheless acted wrongly because of weakness of will. I agree with Husak about quality of will theories, but I argue that weakness of the will is often exculpating, and that when it is not it is because of normative negligence with regard to the reasons to steel one’s will. Thus, I argue his reason responsive account fails too. I offer instead an account of blame the key idea of which is that criminal blame is normatively appropriate as a way of communicating the importance of self-blame. Self-blame properly responds to normative negligence. Moreover, it comes with the emotion of guilt in which an agent experiences a kind of suffering for her unexcused wrongdoing. Punishment, based on criminal blame, reinforces the importance of guilt for maintaining a community of mutual respect.