Ben Sachs

This chapter entertains three proposals as to the connection between an animal’s moral status and what legal status it ought to have. The first proposal is this strong claim: that an act wrongs an animal is a justification for criminalizing it. The second proposal is this moderate claim: that an act constitutes an injustice to an animal is a justification for criminalizing it. Both of these proposals can be vindicated if an argument for legal moralism that the author constructs, drawing on the work of Michael Moore, is sound. Meanwhile, Martha Nussbaum, Alasdair Cochrane, and Robert Garner have each argued for the second proposal. The chapter demonstrates that all four of these arguments are unsound. The third proposal is this claim: it is obligatory for legislators to eliminate any aspect of the law that facilitates the wronging of animals. This proposal, the author argues, is sound. Comparatively weak though this proposal is, the chapter extracts from it radical implications for animal ownership and state funding of medical research on animal subjects.

Here I inquire into the status of the rules promulgated in the canonical pronouncements on human subjects research, such as the Declaration of Helsinki and the Belmont Report. The question is whether they are ethical rules or rules of policy. An ethical rule is supposed to accurately reflect the ethical fact, whereas rules of policy are implemented to achieve a goal. We should be skeptical, I argue, that the actions prescribed by the rules are ethically obligatory, and consequently we should focus our attention on how to craft the rules so as to promote the legitimate goals of human subjects research. Unfortunately, this cannot be done without evidence about the likely effects of various candidate policies—evidence we currently lack. Therefore, we should take the rules as mere starting points, subject to revision as the evidence comes in.

Alan Wertheimer argues that before we promulgate some rule regarding the conduct of research on human subjects we ethically ought to consider the consequences of the rule being followed. This ethical requirement has an exception, though, Wertheimer maintains: it doesn't apply to rules that are not motivated by considerations of outcome. I agree that there is an exception to be made to Wertheimer's proposed ethical requirement, but not Wertheimer's exception. The important distinction is not that between rules motivated by considerations of outcome and rules motivated otherwise, but between rules designed to enforce ethics and rules not so designed. Before we promulgate the latter kind of rule, we are ethically required to consider the consequences of doing so. This is not so for the former kind of rule. My exception, unlike Wertheimer's, yields the conclusion that we should promulgate, regardless of the consequences of doing so, a rule requiring that the potential benefit to the subject of participation in a study outweigh the risks. This rule is motivated by considerations of outcome, so it would land on the wrong side of Wertheimer's divide. But it's also designed to enforce ethics, so it lands on the correct side of my divide.

This Note will address the salience of a simple analogy: will privacy law be for the information age what consumer protection law was for the industrial age? At the height of industrialization, the United States market for consumer products faced instability caused by a lack of consumer competence, lack of disclosure about product defects, and advancements in technology that exacerbated the market's flaws. As this Note will show, these same causes of market failure are stirring in today's economy as well. The modern economy is not one of goods but of information, and although consumers have long been aware that their personal information may have marketing value, the Internet has fundamentally changed the scope and depth of information collection, exposing more consumers than ever to injuries requiring not just a comprehensive remedy but a wholesale change in the level of care of the information industry. Just as the mass-production economy precipitated a wave of reforms in consumer protection (in part thanks to a kick-start by author Upton Sinclair), so too must the mass-information economy adapt. After demonstrating the parallels between the problems of today with those of yesterday, this Note will propose parallel solutions, particularly a consolidation of regulatory power and a new tort for breach of information privacy, which draws its inspiration from general products liability. These proposals show that rather than reinvent the wheel, modern lawmakers can (and should) answer today's problems with lessons from the last century.

I hold that we could justifiably criminalize some threats, on account of the fact that issuing them renders one more likely to commit a crime. But I also point out that if we criminalize some threat-issuing, we will de facto criminalize some warning-issuing, which is unjust. So we ought not to criminalize any threat-issuing. Instead, we should criminalize rendering oneself more likely to commit a crime. This would allow us to punish all the threat-issuers we should want to punish. It would also force us to punish some warning-issuers, but we would not be punishing them for their warning-issuing

Over the last few decades, scientists have been busy debunking the myth that nonhuman animals relate to each other in a primarily competitive, aggressive way. What they have found is that many species of animal, including many of those most closely related to humans, display a remarkable range of cooperative, "prosocial" behavior. In fact, it appears that some animal societies adhere to a moral code. What is preventing us, then, from saying that the members of these societies are moral beings? Nothing important, according to a recent book. Probing further into this question, I suggest that in fact quite a lot is at risk in making this move. To integrate nonhuman animals fully into the moral domain, we may have to adapt our conception of morality in some very troublesome ways

The idea that our economic institutions should be designed meritocratically is back as a hot topic in western academic circles. At the same time political meritocracy is once again a subject of philosophical discussion, with some Western philosophers embracing epistocracy and Confucianism being revived among Eastern philosophers. This survey has the ambition, first, of putting differing strands of this literature into dialogue with each other: the economic with the political, and the Western with the Eastern. Second, we seek here to impose order on the debates over meritocracy by carefully separating out the four steps that must be traversed on the journey to a meritocratic conclusion. Third we want to promote a more productive debate moving forward by cleanly pulling apart three kinds of purported merit base.

The idea that our economic institutions should be designed meritocratically is back as a hot topic in western academic circles. At the same time political meritocracy is once again a subject of philosophical discussion, with some Western philosophers embracing epistocracy and Confucianism being revived among Eastern philosophers. This survey has the ambition, first, of putting differing strands of this literature into dialogue with each other: the economic with the political, and the Western with the Eastern. Second, we seek here to impose order on the debates over meritocracy by carefully separating out the four steps that must be traversed on the journey to a meritocratic conclusion. Third we want to promote a more productive debate moving forward by cleanly pulling apart three kinds of purported merit base.

This book argues that contractarianism is well suited as a political morality and explores the implications of deploying it in this way. It promises to revive contractarianism as a viable political theory, breaking it free from its Rawlsian moorings while taking seriously the long-standing objections to it. It's natural to think that the state owes things to its people: physical security, public health and sanitation services, and a functioning judiciary, for example. But is there a theory--a political morality--that can explain why this is so and who the state's people are? This new contractarianism deploys a reversed state of nature thought experiment as the starting point of political theorizing. From this starting point it develops a political morality: a theory of the common ground of the role moralities attached to the various roles within the state. Contractarianism, so understood, can provide a basis for already popular ideas in political theory--such as political and legal liberalism--and overturn conventional wisdom, for example that the state is obligated to secure justice and that animals should have no legal standing. Contractarianism, Role Obligations, and Political Morality will be of interest to scholars and advanced students working in moral and political philosophy.

This essay is about the timing of research consent, a process that involves participants being given information about, among other things, upcoming research interventions and then being invited to waive their claims against those interventions being undertaken. The standard practice, as regards timing, is as follows: participants are invited to waive all their claims at a single moment in time, and that point in time immediately follows the information-provision. I argue that there we’re not justified in keeping to this practice. What we ought to do is disaggregate the claim-waiving part of the process and move it later, such that the participant is invited to waive her claim against the undertaking of any given intervention only the immediate moment before that intervention is to be undertaken.

This review uses the excellent recent anthology, What Is Enough: Sufficiency, Justice, and Health, edited by Carina Fourie and Annette Rid, as a springboard for a discussion of a little-noticed problem for sufficientarian principles governing the distribution of health or health care. All sufficientarian principles must be assigned a scope: the set of individuals who are to be brought up to the level of sufficiency. When it comes to health and health care, sufficientarians will, rightly, want to reject broad scopes, because they will entail that we are accountable for securing health care for, for example, wild animals. Unfortunately, any narrow scope will seem morally arbitrary, because it will imply that among all the individuals who could benefit from health care we are obligated to provide it only to some of them. But, I suggest here that such arbitrariness is no problem for narrow-scope sufficientarianism in health or health care as long as the principle is cast as a non-fundamental principle of public policy as opposed to a fundamental moral principle.

Fair equality of opportunity, a principle that governs the competition for desirable jobs, can seem irrelevant in our actual world, for two reasons. First, parents have broad liberty to raise their children as they see fit, which seems to undermine the fair equality of opportunity–based commitment to eliminating the effects of social circumstances on that competition. Second, we already have a well-established principle for distributing jobs, namely meritocracy, thereby leaving no theater in which fair equality of opportunity can operate. I argue that we can solve both of these problems by conceding, in contrast to previous fair equality of opportunity defenders, that there’s no unique good associated with the right job, while insisting that there is a unique bad associated with the wrong job and holding that fair equality of opportunity should govern the competition to avoid that bad by attaining the right job. This move enables new responses to the two problems previously mentioned. In response to the meritocracy problem, I propose simply accepting that that principle should guide the distribution of jobs and all the associated goods while maintaining that there is room for a separate, non-consequentialist principle whose function is to ensure a fair distribution of chances to avoid the unique bad just identified. In response to the parental liberty problem, I argue that, for any given person, which job will deliver the unique bad I identify is contingent on her skills, and therefore, the way she is raised determines what would constitute a bad employment outcome for her, but doesn’t affect her chances of avoiding that outcome.

Contractarianism initially made its mark, in the seventeenth century, as a sort of theory of everything in ethics. But gradually philosophers became convinced that there were resources available outside contractarianism for settling important moral questions—for instance, ideas of human rights and the moral equality of persons. Then Rawls revived contractarianism with a more modest aim—namely, as a theory of justice. But even this agenda for contractarianism has been called into question, most notably by G.A. Cohen, who contends that we have other tools at our disposal for identifying the true conception of justice. So the question remains: how should contractarianism be construed if it is to provide answers to questions that cannot be answered in some other way? In my essay I offer a very simple answer: contractarianism should be construed as a political morality. I arrive at this answer by starting with contractarianism as a theory of everything and paring away the unappealing layers of contractarianism so understood. I begin by describing what contractarianism is. Then I dispense with contractarianism as a theory of state legitimacy, as a theory of interpersonal morality, and as a theory of justice. Finally, I distinguish political morality from the other already-mentioned areas of morality, and argue that contractarianism is a sensible theory of its grounds.

In this essay I defend the claim that all reasons can ground final requirements. I begin by establishing a prima facie case for the thesis by noting that on a common-sense understanding of what finality is, it must be the case that all reasons can ground such requirements. I spend the rest of the paper defending the thesis against two recent challenges. The first challenge is found in Joshua Gert’s recent book, Brute Rationality. In it he argues that reasons play two logically distinct roles – requiring action and justifying action. He argues, further, that some reasons – ‘purely justificatory’ reasons – play only the latter role. Jonathan Dancy offers the second challenge in his Ethics Without Principles, where he distinguishes between the ‘favoring’ and ‘ought-making’ roles of reasons. While all reasons play the former role, some do not play the latter, and are therefore irrelevant to what one ought to do. My contention is that both Gert and Dancy are going to have trouble accounting for our intuitions in a number of cases.

Whereas most moral philosophers believe that the facts as to what we’re morally required to do are grounded by the facts about our moral reasons, which in turn are grounded by non-normative facts, I propose that moral requirements are directly grounded by non-normative facts. This isn’t, however, to say that there is no place in the picture for moral reasons. Moral reasons exist, and they’re grounded by moral requirements. Arguing for this picture of the moral sphere requires playing both offense and defense; this article provides the defense. I defend this view against the objections that it must deny that one is generally blameworthy for having violated a moral requirement, that it implies the existence of genuine moral dilemmas, that it runs counter to an obviously true view of how moral deliberation should work, and that it cannot explain why it feels as though figuring about what one is morally required to do often takes the form of thinking about what one’s moral reasons are.

Douglas Portmore’s recent book, Commonsense Consequentialism: Wherein Rationality Meets Morality, is an ambitious, painstaking effort to render the moral requirements of consequentialism consistent both with our intuitions and with the requirements of rationality. Portmore argues for a version of consequentialism that requires one to act in accordance with one’s reasons for preference or reasons for desire. I raise doubts here as to whether such reasons can explain moral requirements and whether, if they do, it would be of any practical use to know that they do.

It is usually thought that wrongful acts of threat-involving coercion are wrong because they involve a violation of the freedom or autonomy of the targets of those acts. I argue here that this cannot possibly be right, and that in fact the wrongness of wrongful coercion has nothing at all to do with the effect such actions have on their targets. This negative thesis is supported by pointing out that what we say about the ethics of threatening (and thus the ethics of coercion) constrains what we can say about the ethics of warning and offering. Importantly, our favoured explanation of the wrongness of certain kinds of threatening should not commit us to condemning as wrong parallel cases of warning and offering. My positive project is to show how this can be done. I defend the claim that wrongful coercion is nothing more than the issuing of a conditional threat to do wrong, and that an agent's issuing of a conditional threat to do wrong is wrong because it constitutes motivation for that agent to adopt the announced intention to do wrong. The idea of explaining the wrongness of wrongful coercion in this way has gone unnoticed because we have thus far been mistaken about what a threat is. In this essay I present my moral analysis of coercion only after presenting a careful descriptive analysis of threats. On my view, it is essential to a threat that the announced intention is one that the agent does not possess before announcing it. This analysis makes it possible to elucidate the descriptive differences between threats, warnings and offers, which sets up the later project of elucidating the moral differences between them

The principle of fair equality of opportunity is regularly used to justify social policies, both in the philosophical literature and in public discourse. However, too often commentators fail to make explicit just what they take the principle to say. A principle of fair equality of opportunity does not say anything at all until certain variables are filled in. I want to draw attention to two variables, timing and currency. I argue that once we identify the few plausible ways we have at our disposal for filling in those variables, it will become apparent that a reasonable version of the principle will be quite narrow. Its usefulness as a justificatory basis for social policies will be limited to those policies that target the distribution of competitive opportunities among people entering majority.

This paper investigates whether moral status talk gets us anywhere in our search for answers to questions in the ethics of marginal cases. I consider the usefulness of moral status talk first on the assumption that an individual's possession of moral status is not a further fact about that individual, and then on the assumption that it is. Finally, I offer an expressivistic interpretation of moral status talk. In each case, I argue that such talk conveys nothing that cannot be conveyed more clearly in other words. My conclusion is that we should stop using moral status and its cognates

Here I inquire into the status of the rules promulgated in the canonical pronouncements on human subjects research, such as the Declaration of Helsinki and the Belmont Report. The question is whether they are ethical rules or rules of policy. An ethical rule is supposed to accurately reflect the ethical fact (the fact that the action the rule prescribes is ethically obligatory), whereas rules of policy are implemented to achieve a goal. We should be skeptical, I argue, that the actions prescribed by the rules are ethically obligatory, and consequently we should focus our attention on how to craft the rules so as to promote the legitimate goals of human subjects research. Unfortunately, this cannot be done without evidence about the likely effects of various candidate policies—evidence we currently lack. Therefore, we should take the rules as mere starting points, subject to revision as the evidence comes in.

This article concerns the validity of six canonical rules that institutional review boards use to constrain the behavior of investigators. These rules require investigators to design their studies in a scientifically valid way, not pay their subjects to take risks, minimize risks to their subjects, secure for their subjects access to effective interventions post-trial, not pay their subjects too much and allow their subjects to withdraw from the study unconditionally. Enforcement of these rules is problematic because there are other relationships that seem to be like the investigator-subject relationship in all ethically relevant respects, such as the employer-employee and volunteer organizer-volunteer relationships, to which we would not dream of applying these same rules. Applying these rules in one context but not the others is a violation of ethical consistency I label “exceptionalism.” We should conclude that it is time to reexamine the validity of the six rules