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135The role of coherence in legal reasoningLaw and Philosophy 3 (3). 1984.Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is …Read more
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116Harming someone after his deathEthics 94 (3): 407-419. 1984.I argue for the possibility of posthumous harm based on an account of the harm of murder. I start with the deep-seated intuition that when someone is murdered he (or she) is harmed (over and above the pain of injury or dying), and argue that Feinberg's account that assumes that harm is an invasion of an interest cannot plausibly accommodate this intuition. I propose a new account of the harm of murder: it is an irreversible loss of functions necessary for worthwhile existence. I suggest a (p…Read more
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91Dworkin's Theoretical Disagreement ArgumentPhilosophy Compass 10 (1): 1-9. 2015.Dworkin's theoretical disagreement argument, developed in Law's Empire, is presented in that work as the motivator for his interpretive account of law. Like Dworkin's earlier arguments critical of legal positivism, the argument from theoretical disagreement has generated a lively exchange with legal positivists. It has motivated three of them to develop innovative positivist positions. In its original guise, the argument from theoretical disagreement is presented as ‘the semantic sting argument’…Read more
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86The meaning of a precedentLegal Theory 6 (2): 185-240. 2000.A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guid…Read more
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66Harming the dead, once againEthics 96 (1): 162-164. 1985.This article responds to criticism by Don Marquis of my previous article, "Harming Someone after His Death." I argue that because the idea of surviving interests in not plausible, the harm-as-loss-theory is not on all fours with the harm-as-invasion-of-interests theory (especially when it comes to the harm of murder), and that the former is preferable.
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63Discretion and Dispositive ConceptsCanadian Journal of Philosophy 11 (4). 1981.In this essay, I argue against a way of approaching the issue of Judicial discretion that finds its clearest exposition and highest development in recent works by Ronald Dworkin. This approach is too narrow. It ignores a kind of Judicial discretion whose existence has been maintained by jurists with discretionist sympathies, and which is philosophically significant. The kind of discretion it ignores raises the issue of the justification of adjudication as clearly as does the kind of discretion …Read more
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60How a statute appliesLegal Theory 12 (1): 71-112. 2006.This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a …Read more
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51That Makes It WorseThe Monist 63 (2): 228-245. 1980.This is an essay on aggravating circumstances. Rather than defend a thesis that particular things ought to be considered aggravating circumstances to wrongdoing, I assume general agreement about major sorts of aggravating circumstances; and I ask instead how they work and what their operation reveals about moral standards in general and minimal expectations in particular. In the final section of this essay, I briefly consider what can be said in defense of the commonsense principle that punish…Read more
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49D-theories, Discretion, and the Justification of AdjudicationSocial Theory and Practice 5 (3-4): 331-345. 1980.This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including …Read more
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47“The Retroactivity Problem,”In O'Rourke Campbell and Silverstein (ed.), Time and Identity (Topics in Contemporary Philosophy, vol. 6), Mit Press. pp. 297-308. 2010.This chapter discusses the retroactivity problem and how it arises when the idea that events occurring after a person’s life can harm that person is pursued. The common objection to this dilemma is the “no subject” type of response. The retroactivity problem is the result of making several assumptions jointly, many of which are initially plausible but none of which are actually defended. The first of these assumptions is referred to as Worse-Off, which states that an event harms a person only if…Read more
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40The parti-resultantness of requirement: An explanation that failedPhilosophical Studies 37 (3). 1980.
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39A puzzle about legal systems and democratic theoryJurisprudence 11 (2): 157-168. 2020.Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer my own account, the De Re Account, which depends…Read more
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33Review essay / A theory of criminal justiceCriminal Justice Ethics 1 (2): 60-64. 1982.Hyman Gross, A Theory of Criminal Justice New York: Oxford University Press, 1979, xviii + 521 pp
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31Review essay / attempts as attacksCriminal Justice Ethics 18 (1): 52-60. 1999.R. A. Duff, Criminal Attempts Oxford: Clarendon Press, 1996, xxvii + 420 pp
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24Review of Ferdinand David Schoeman: Privacy and Social Freedom (review)Ethics 105 (2): 421-422. 1995.
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11Book Review of Ferdinand Schoeman, Privacy and Social Freedom (review)Ethics 105 (2): 421-422. 1995.
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6The retroactivity problemIn Joseph Keim Campbell, Michael O'Rourke & Harry S. Silverstein (eds.), Time and Identity, Bradford. 2010.This chapter discusses the retroactivity problem and how it arises when the idea that events occurring after a person’s life can harm that person is pursued. The common objection to this dilemma is the “no subject” type of response. The retroactivity problem is the result of making several assumptions jointly, many of which are initially plausible but none of which are actually defended. The first of these assumptions is referred to as Worse-Off, which states that an event harms a person only if…Read more
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2“Are There Any Positive Rights?”Archiv für Rechts- und Sozialphilosophie 42 156-66. 1990.This essay is aimed at those moral philosophers who recognize a certain category of negative moral rights, but refuse to recognize a similar category of positive moral rights. That category consists of moral rights normally held by human beings. Such rights may be called "natural moral rights." My thesis is that if there is a natural negative right not to be killed, then -- contra Thomson, Nozick and others -- there must be at least one natural positive right, which might be called a "right no…Read more
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1The Law of the StreetIn James Penner & Mark McBride (eds.), New Essays on the Nature of Legal Reasoning, Hart Publishing. 2022.Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding and governing the conduct of …Read more
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1Disposition of RemainsIn Christopher Berry Gray (ed.), The philosophy of law: an encyclopedia, Garland. 1999.This is a reference work surveying the literature (as of the publication date) on treatment of the remains of human beings. I discuss leading views on the possibility of posthumous harm, posthumous rights, and rights of the living in the bodies of the dead.
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1Welfare and Harm After DeathIn James Stacey Taylor (ed.), The Metaphysics and Ethics of Death: New Essays, Oxford University Press. pp. 188-209. 2013.I defend the claim that posthumous harm is possible against a simple but powerful and appealing argument for the impossibility of harm from posthumous events. I produce a counterargument against one of its assumptions. My conclusion is that the boundaries of welfare-affecting events may extend beyond the existence of the person whose welfare is in question. My case for rejecting the contrary claim avoids an objection to some familiar arguments for posthumous harm and is superior to another ar…Read more
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“How to Hold the Social Fact Thesis – a Reply to Greenberg and Toh,”In “How to Hold the Social Fact Thesis – a Reply to Greenberg and Toh,”, Oxford University Press. pp. 75-102. 2013.The social fact thesis, is, roughly, that law is ultimately a matter of social fact. Mark Greenberg and Kevin Toh have launched transcendental arguments against important or interesting general versions of the social fact thesis. Together, they can be read as posing a dilemma for the thesis. Suppose that many correct assertions of law are normative. Then, according to Toh, the considerations in virtue of which they are correct cannot ultimately be social facts, because the derivation of any …Read more
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Disposition of RemainsIn Christopher Berry Gray (ed.), The philosophy of law: an encyclopedia, Garland. 1999.
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"Postema's Account of Integrity"In Thomas da Rosa de Bustamante & Thiago Lopes Decat (eds.), Philosophy of law as an integral part of philosophy: essays on the jurisprudence of Gerald J. Postema, Hart Publishing, an Imprint of Bloomsbury Publishing. pp. 47-79. 2020.In his “Integrity: Justice in Work Clothes,” Postema assumes the task of showing that integrity is a genuine moral value of political communities, distinct from other values such as justice and fairness. Postema’s conception of integrity borrows much from Dworkin’s, but also differs from it in an important respect. As anyone familiar with Dworkin’s theory would expect, Postema’s idea of integrity is a kind of fidelity in laws (“practical directives”) and policies to principles arising from wh…Read more
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“Does Dignity Help in Thinking about Paternalism?”In Levenbook Barbara Baum (ed.), The Role of Dignity in the Legal and Political Philosophy of Ronald Dworkin, Oxford University Press. pp. 221-244. 2018.Dworkin’s dignity framework has little explanatory value for one moral topic for which it should be especially suited: paternalistic intervention by one adult with another. The dignity framework has little epistemic value for morality regarding paternalism. Dworkin’s conception of dignity is too inchoate to illuminate why and when individual paternalism is wrong, all things considered. Dignity does somewhat better at illuminating why some types of individual paternalism are pro tanto wrong;…Read more
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The relevance of literary interpretationIn Thomas da Rosa de Bustamante & Margaret Martin (eds.), New essays on the Fish-Dworkin debate, Hart Publishing, an Imprint of Bloomsbury Publishing. 2023.
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Value Theory |
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Value Theory |