Daniel Wodak

The emergence of the one-system picture is one of the most significant developments within general jurisprudence in decades. The one-system picture promises an account of legal obligations, privileges, powers, and immunities as part of morality. One of its chief contemporary proponents (Greenberg) treats it as thereby offering a new account of legal content, which rivals familiar two-system forms of positivism and antipositivism. The other (Hershovitz) treats it as abandoning the idea of legal content, and thereby ushering in the ‘end of jurisprudence’—that is, leaving jurisprudence as a subject with no object. This essay starts with the observation that the one-system picture promises more than it has provided. We were promised a view about legal obligations etc.; but we were only provided with an account of legal obligations. So, can the one-system picture provide a systematic account? Can it explain all legal norms—including legal privileges, powers, and immunities—as moral norms? I explore two challenges—the problem of inconsistency, and the problem of idiosyncrasy—that the one-system picture faces once it seeks to be systematic.

While there is a vibrant debate over whether _believing_ or _acting_ on the basis of moral and aesthetic testimony is ‘defective’, most grant that _approving_ on the basis of normative testimony is verboten. The main goal of this chapter is to defend such affective responses to normative testimony and it does this by arguing that philosophers have relied on the wrong comparison cases: we need to compare minimal contrastive pairs, and better and worse cases of approving on the basis of normative testimony; and once we do so, it is clear that such testimony gives us some reason to approve, and sometimes strong reasons to approve. A subsidiary goal is to show that if approving on the basis of normative testimony is not defective, this should make us optimistic that normative testimony gives us (strong) reasons to believe and act, while making the ‘fishiness’ of these responses harder to explain.

“X-Firsters” hold that there is some normative feature that is fundamental to all others (and, often, that there’s some normative feature that is the “mark of the normative”: all other normative properties have it, and are normative in virtue of having it). This view is taken as a starting point in the debate about which X is “on first.” Little has been said about whether or why we should be X-Firsters, or what we should think about normativity if we aren’t X-Firsters. Hence the chapter’s two main goals. First, to provide a simple argument that one shouldn’t be an X-Firster about the normative domain, which starts with the observation that analogous views have dubious merits in analogous domains. Second, to offer an alternative view—taking normativity to be a determinable explained in terms of its determinates—that offers an interesting way to think about the structure and unity of normativity.

Expressivists aim to explain the meaning of a fragment of language—typically, claims about what we morally ought to do—in terms of the non-cognitive attitudes they express. Critics evaluate expressivism on those terms. This is a mistake. We don’t use that fragment of language in isolation. We make claims about what we morally, legally, rationally, and prudentially ought to do: we relativize “ought” and other deontic modals to different standards, or varieties of normativity. This chapter argues that the standard-relativity of “ought” poses a dilemma for expressivists. If they claim that “ought” expresses different types of attitudes when it is relativized to different standards (e.g. morality and legality), they struggle to explain why “ought” is univocal when relativized. If they claim that “ought” always expresses the same type of non-cognitive attitude, they struggle to explain why “ought” claims that are relativized to different standards do not express inconsistent attitudes.

The language of law includes normative or prescriptive terms such as 'obligation' and 'permission'. How do we explain the meaning of prescriptive legal language? This has long been regarded as a problem for positivists, since at first glance their view suggests we can derive an ought – a legal obligation or right or permission – from descriptive social facts alone. This Element outlines what we should want from a semantics of prescriptive legal language, critically evaluates four leading semantic accounts, and argues that legal prescriptivity is not, in the end, a problem for positivists.

“Almost everyone,” Ronald Dworkin wrote in Sovereign Virtue, “assumes that democracy means equal voting power.” What, then, is voting power? The standard view defines it as the probability that a vote changes the outcome assuming that each possible combination of votes is equiprobable. This has significant implications: institutions like the US Electoral College give disproportionate voting power to voters in large states. But the standard view cannot be true. As an a priori account, it rests on the principle of indifference, and thus faces the problem of multiple partitions: we could assign an equal probability to each possible combination of votes or to each possible vote share. The choice to partition in terms of combinations of votes is arbitrary, and makes the standard view objectionably overconfident. These problems of arbitrariness and overconfidence undermine the standard view’s main implications. And they call into question whether equal voting power should play a central role in democratic theory.

A central debate in philosophy of race is between eliminativists and conservationists about what we ought do with ‘race’ talk. ‘Eliminativism’ is often defined such that it’s committed to holding that (a) ‘race’ is vacuous and races don’t exist, so (b) we should eliminate the term ‘race’ from our vocabulary. As a stipulative definition, that’s fine. But as an account of one of the main theoretical options in the debate, it’s a serious mistake. I offer three arguments for why eliminativism should not be tethered to vacuity or error theory, and three arguments for why the view shouldn’t be understood in terms of eliminating the term ‘race’ from our vocabulary. Instead, I propose we understand the debate as concerning whether certain uses of ordinary race terms are typically wrong. This proposal is quite simple, and naturally suggested by the common gloss that eliminativism about ‘race’ is akin to a commonsensical view about 'witch' talk. But nonetheless, I argue [Corrections made on 30 July 2021, after first online publication: The word “should” was replaced by “argue” in the last sentence of the abstract] that it offers a significant recharacterization of this core debate in philosophy of race.

Victims of discriminated are often disadvantaged. Are they necessarily disadvantaged? Many say so: “in discriminating against someone, one is necessarily acting to the disadvantage of that someone” (Gardner 2018: 67); “discrimination against someone simply is disadvantageous differential treatment” (Lippert-Rasmussen 2013: 15). The connection between discrimination and disadvantage is also supposed to play two significant explanatory roles. That you are disadvantaged by the differential treatment of you and me is meant to explain why it was discrimination against you rather than me; and that discrimination necessarily involves disadvantage is meant to unify direct and indirect discrimination. Drawing on cases from the opioid epidemic, I aim to challenge this received view about the connection between discrimination and disadvantage.

In general, otherwise permissible actions do not become wrong when agents act on bad attitudes. But cases of discrimination can be exceptions to this generalization. It could “be morally permissible for someone to rent her house to any one of several prospective tenants but not morally permissible to refuse to rent it to one of those people because of his race” (Scanlon 2008: 71). These two claims are plausible and widely accepted, but they call for explanation. Why is it that in some cases of discrimination, agents' bad attitudes make otherwise permissible actions wrong? Why doesn't this imply that otherwise permissible actions generally become impermissible when agents act on bad attitudes?? Together, these questions produce a puzzle which existing accounts of wrongful discrimination have not solved. We argue that the solution comes from appreciating how the manifestation of bad attitudes in action is a central constituent in the unjust social condition to which discrimination subjects members of subordinated groups: the deprivation of positive moral standing.

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, ‘one person, one vote’, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed; but by what, exactly? This Article seeks an answer by focusing on the Court’s commitments about the scope and strictness of one person, one vote: it is a broad (rather than narrow) principle of rough (rather than exact) equality. As such, one person, one vote requires an equal number of people per district and an equal number of votes per voter; and it requires a roughly equal number of people per district. These commitments are attractive in isolation. But, this Article shows, they are objectionable in conjunction: they entail that one person, one vote is too permissive, as it only requires a roughly equal number of votes per voter. If your vote is roughly equal to mine when your district is fractionally more populous than mine, your vote is also roughly equal to mine when I can cast fractionally more votes than you. Since this problem follows inexorably from the Court’s commitments about the scope and strictness of one person, one vote, there are two possible solutions. First, one person, one vote could be broad a principle of exact equality; administrability may then justify underenforcing the principle in distributing voters to districts, but not in distributing votes to voters. Second, one person, one vote could include a narrow principle requiring rough equality in apportionment, as well as a distinct principle requiring exactly equal votes per voter. These solutions have important constitutional implications—including for resolving the population baseline at issue in malapportionment, which remains uncertain after Evenwel v. Abbott. But neither provides an easy way out. Each makes one person, one vote either too restrictive or too permissive. This puzzle brings to light why the operative principle in a venerated series of cases is deeply unclear and unsettled. But it has a special significance beyond that. One person, one vote lies at the heart of America’s constitutional democracy, which is already under considerable threat. On the one hand, if the content of the principle is too restrictive (or too uncertain), then objections to its constitutionality are considerably strengthened. On the other hand, if it is too permissive, then one person, one vote provides little constraint on Vice-President J.D. Vance’s recent proposal to give extra votes to parents, as well as myriad similar policies and procedures that would erode voters’ equality at the ballot box.

Mandatory minimum sentencing provisions have been a feature of the U.S. justice system since 1790. But they have expanded considerably under the war on drugs, and their use has expanded considerably under the Trump Administration; some states are also poised to expand drug-related mandatory minimums further in efforts to fight the current opioid epidemic. In this paper I outline and evaluate three prominent arguments for and against the use of mandatory minimums in the war on drugs—they appeal, respectively, to proportionality, consistency, and efficiency. I ultimately defend the view that the use of mandatory minimums in the war on drugs is unjust.

Political egalitarians hold that there is a distinct ideal of political equality, which defines and justifies democracy. So what is political equality? The orthodox view says it is equality of opportunity for political influence, not equality of political influence. The first goal of this article is to argue against this view about the nature of political equality. From 1962 to 1983, Australia’s First Nations citizens had the right to vote, but unlike other citizens they did not have the duty to vote. First Nations citizens were made politically unequal without being given any less opportunity for influence; the most plausible explanation for why they were made politically unequal is instead that they were made to exert less influence. The second goal is to use this challenge to illuminate the point of political equality. The orthodox view is typically undergirded by taking political equality to be concerned with some cosmic injustice that inheres in states of affairs, depending on the distribution of power. This is doubly mistaken. The point of political equality is deontic, not telic; and what it prescribes is not distributive, but relational. More specifically, the point of political equality is for the state to treat each citizen as an equal coauthor of the law. The overarching goal is to catalyze a more vigorous debate about political equality, akin to the long-standing debates about other dimensions of equality.

‘One person, one vote’ (OPOV) is an important slogan in democratic movements, a principle that undergirds a landmark series of cases in US constitutional law, and a widely accepted axiom of democratic theory in philosophy and political science. It is taken to be sacrosanct; some even state that OPOV “is, like the injustice of chattel slavery, a ‘fixed point’” (Kolodny 2023: 291). This is a rare distinction for an ideal. For all the ink spilt on Rawls’ Difference Principle, no one printed it on the pamphlets and placards of trade unionist, decolonial, and anti-Apartheid protests; it never appears in US Supreme Court decisions; and none of its defenders would say that denying it is akin to accepting slavery. But despite this, OPOV has proved remarkably hard to pin down. It is not meant to be a mere slogan. It is meant to explain why practices of plural voting and vote dilution are inegalitarian. But there is no consensus and little debate about what it means. Many leave the principle undefined. Others say OPOV means anonymity, or equal voting weight, or equal representation, or equal voting power. These accounts differ significantly. But little is said about one should be preferred to its rival. My goal is to convince you that the meaning of OPOV poses a deep, urgent problem, for which we have no adequate solution. I will argue that all current accounts of OPOV should be rejected. The key upshot will be that we need, but lack, a good explanation of the datum that practices of plural voting and vote dilution robustly fail a minimal condition for political equality. In closing, I’ll explain why my arguments also push us towards embracing what has often been considered a radical and overly demanding implication: namely, that all district-based systems—including those used in the US House of Representatives, Senate, and Electoral College—violate OPOV.

Many commentators lament that American democracy is in crisis. It is becoming a system of minority rule, wherein a party with a minority of the nationwide vote can control the national government. Partisan gerrymandering in the House of Representatives fuels this crisis, as does the equal representation of small and large states in the Senate. But altering these features of the legislature would not end minority rule. Indeed, it has long been held that majority rule cannot be guaranteed within any district system, as a minority of voters nationwide can be efficiently distributed such that a minority party wins a majority of districts by narrow margins. This Article offers a way to save majority rule. Since the way a party can gain control of the legislature with a minority of the vote is to win a majority of districts by narrow margins of victory and lose a minority of districts by large margins of victory, the solution is to make margins matter. Hence, this Article proposes that we preserve electoral districts in which the candidate with the most votes wins, while making the weight of their vote in the legislature (a representative’s “legislative power”) a function of margins of victory. The first goal of this Article is to outline how this proposal, which I call “weighted voting by margin of victory” (WVMV), retains the democratic virtues of district systems while ending minority rule. This is the first basis for the democratic imperative to make margins matter. There is, however, a second basis for that same imperative, which turns on the political equality of voters. The U.S. Supreme Court has long held that the democratic equality should be understood in terms of equal voting power (one person, one vote). But when margins of victory don’t matter, the power of a vote lies exclusively in its potential decisiveness. A vote that changes the margin of victory without changing the victor is “wasted”. But it is an electoral reality that votes in competitive districts are more likely to be decisive, and votes in uncompetitive districts are more likely to be wasted; as a result, candidates and parties are more responsive to some voters than others. So voters are not political equals. They do not have equal voting power, except in an empty formalistic sense. By contrast, WVMV gives votes a second type of power. The power of a vote is to potentially decide who wins and to actually change the legislative power of the victor. Each vote, in effect, transfers a unit of political power to a democratic representative. This “transference” power can be meaningfully equalized between voters. A voter in an uncompetitive district is far less likely to change who wins, but is equally able to change the margin of victory, such that their vote is no longer wasted. This gives candidates and parties a strong reason to be more equally responsive to all voters who can change the margins. Hence, there is a democratic imperative to make margins matter, in order to give voters a meaningfully equal form of voting power. The final goal of this Article is to explain how we can implement WMVM in modern democracies, focusing on three particularly challenging cases: the U.S. Senate, the Parliament of the United Kingdom, and the U.S. House of Representatives. These cases are challenging for several reasons, the most pertinent of which turn on the ways we should understand margins of victory when electorates are of unequal sizes (as in the U.S. Senate) or are contested by more than two parties (as in the U.K.) or are conducted under different voting procedures (as in many districts in the U.S. House). I argue that WVMV should be considered feasible in such contexts, and hence offers a practical, rather than purely theoretical, alternative to the status quo.

Mary Kate McGowan’s Just Words offers an interesting account of exercitives. On McGowan’s view, one of the things we do with words is change what’s permitted, and we do this ubiquitously, without any special authority or specific intention. McGowan’s account of exercitives is meant to identify a mechanism by which ordinary speech is harmful, and which justifies the regulation of such speech. It is here that I part ways. I make three main arguments. First, McGowan’s focus on harm is misguided; that ordinary speech is harmful is harder to support, and in turn does not less to support conclusions about whether it is wrong and warrants regulation, than Just Words suggests. Second, if the speech is harmful, McGowan’s account of exercitives is ill-suited to explain why; the relevant instances of ordinary speech seem to express speakers’ views about moral norms, not change social norms. Third, McGowan’s argument for why ordinary speech should be regulated because it is a form of discrimination presupposes a great deal that is controversial about what makes discrimination wrong and legally actionable, and even if it is right it may license the regulation of more speech than many, including McGowan, would deem acceptable

Pronouns often convey information about a person’s social identity (e.g., gender). Consequently, pronouns have become a focal point in academic and public debates about whether pronouns should be changed to be more inclusive, such as for people whose identities do not fit current pronoun conventions (e.g., gender non-binary individuals). Here, we make an empirical contribution to these debates by investigating which social identities lay speakers think that pronouns should encode and why. Across four studies, participants were asked to evaluate different types of real and hypothetical pronouns, including binary gender pronouns, race pronouns, and identity-neutral pronouns. We sampled participants from two languages with different pronoun systems: English (N = 1,120) and Turkish (N = 260). English pronouns commonly denote binary gender (e.g., he for men), whereas Turkish pronouns are identity-neutral (e.g., o for anyone). Participants’ reasoning about pronouns reflected both a familiarity preference (i.e., participants preferred the pronoun type used in their language) and—critically—participants’ social ideologies. In both language contexts, participants’ ideological beliefs that social groups are inherently distinct (essentialism) and should be hierarchal (social dominance orientation) predicted relatively greater endorsement of binary gender pronouns and race pronouns. A preregistered experimental study with an English-speaking sample showed that the relationship between ideology and pronoun endorsement is causal: Ideologies shape attitudes toward pronouns. Together, the present research contributes to linguistic and psychological theories concerning how people reason about language and informs policy-relevant questions about whether and how to implement language changes for social purposes.

Metaethical quietists agree with realists that moral judgments express beliefs and that some of those beliefs are true. But, quietists continue, this is so even though moral truths lacks truth-makers. To its advocates—including McDowell (1979), Lovibond (1983), Nagel (1997), Dworkin (1996), Rorty (1998), Kramer (2009), Parfit (2011), Scanlon (2014), Crary (2016), and Sepielli (2022)—quietism offers a simple way out of an otherwise intractable quagmire. To its detractors, what it offers is either utterly opaque or unacceptably anti-realist. That charge partly stems from the observation that most quietists mainly offer a negative program—as in Parfit's claim that normative properties exist "in a non-ontological sense" (2011: 747). This chapter critically evaluates the two leading accounts of quietism as a positive program: Scanlon's Being Realistic About Reasons and Sepielli's Pragmatist Quietism.

Majority rule is often regarded as an important democratic principle. But modern democracies divide voters into districts. So if the majority should rule, which majority should rule? Should it be the popular majority, or an electoral majority (i.e., either the majority of voters in the majority of districts, or the majority of voters in districts that contain the majority of the population)? I argue that majority rule requires rule by the popular majority. This view is not novel and may seem obvious. But it is rarely defended, and often rejected. I defend it by arguing that this view about which majority should rule is best supported by the arguments for why the majority should rule, and best avoids the arbitrary and perverse verdicts of rule by electoral majorities. I close by considering the significant practical implications of the view. The Electoral College is often criticized on the basis that the winner of the popular vote doesn’t always win the election. But all district-based democracies have this feature, so all district-based democracies must be reformed if they are to satisfy the principle of majority rule.

We argued that formal objections to the error theory overgeneralize and therefore fail. Christine Tiefensee and Gregory Wheeler deny this. We argue that they are wrong, for two reasons. The first concerns how we should adjudicate conflicts between formal and substantive commitments. The second concerns an overlooked tension between formal objections and non-error-theoretic views. Our discussion shows that the commitments behind formal objections to the error theory, such as the dual schema, should be regarded as much more contentious than is often assumed.

Our concern in this paper lies with a common argument from racial discrimination to realism about races: some people are discriminated against for being members of a particular race (i.e., racial discrimination exists), so some people must be members of that race (i.e., races exist). Error theorists have long responded that we can explain racial discrimination in terms of racial attitudes alone, so we need not explain it in terms of race itself. But to date there has been little detailed discussion of whether it is better to explain racial discrimination in terms of race or in terms of racial attitudes alone. Our goal is to offer a novel and detailed argument in defense of explaining racial discrimination in terms of racial attitudes alone, by attending to the neglected phenomenon of misperception discrimination, which involves differential treatment due to misperceived race. We argue that the discriminatory action in misperception cases must be explained in the same way as cases where (according to the realist) the victim’s race is accurately perceived. Thus, the victim’s actual race cannot provide the best explanation. The main upshot of our argument is that explanatory arguments from racial discrimination to realism about race fail.

Weighted voting involves weighting representatives’ votes by the populations that they represent. Such systems have been adopted in some legislative bodies as a remedy for malapportionment, and are sometimes used to elect candidates for the executive branch of government. But they receive little attention. This note observes the neglected vices of weighted voting systems: they violate intuitive conditions of monotonicity and participation. These vices count significantly against the use of weighted voting, and reflecting on why they arise improves our understanding of axioms in social choice theory.

Take “legal reality” to be the part of reality that actual legal thought and talk is dis- tinctively about, such as legal institutions, legal obligations, and legal norms. Our goal is to explore whether legal reality is disunified. To illustrate the issue, consider the possibility that an important metaphysical thesis such as positivism is true of one part of legal reality (legal institutions), but not another (legal norms). We offer two arguments that suggest that legal reality is disunified: one concerns the heteroge- neity of different entities that are part of legal reality; the other concerns variation within legal thought and talk. We then show that taking the possibility of the disunity of legal reality seriously has important upshots for how we think about the positivist and antipositivist traditions, the debate between them, and their relation to other parts of legal theory, such as critical legal theory and legal realism.

A central debate in philosophy of race is between eliminativists and conservationists about what we ought do with ‘race’ talk. ‘Eliminativism’ is often defined such that it’s committed to holding that (a) ‘race’ is vacuous and races don’t exist, so (b) we should eliminate the term ‘race’ from our vocabulary. As a stipulative definition, that’s fine. But as an account of one of the main theoretical options in the debate, it’s a serious mistake. I offer three arguments for why eliminativism should not be tethered to vacuity or error theory, and three arguments for why the view shouldn’t be understood in terms of eliminating the term ‘race’ from our vocabulary. Instead, I propose we understand the debate as concerning whether certain uses of ordinary race terms are typically wrong. This proposal is quite simple, and naturally suggested by the common gloss that eliminativism about ‘race’ is akin to a commonsensical view about 'witch' talk. But nonetheless, I argue that it offers a significant recharacterization of this core debate in philosophy of race.

We explore an underappreciated tension at the heart of the debate over legal positivism. On the one hand, many legal philosophers aspire for the debate to tell us what law is, and the nature of law. But on the other hand, the positions in the debate are generally formulated such that they’re about something else: what law is necessarily connected to or dependent on. This is a genuine tension, because theses about what law is necessarily connected to or dependent on do not by themselves state or automatically settle what law is or the nature of law. This tension prompts us to propose a new approach to formulating positivism and antipositivism as theses about the real definition of law. Our proposal is simple, but fruitful. We argue that it better insulates and unifies the debate: that is, it prevents orthogonal theses from trivially vindicating or falsifying positivism and antipositivism, and it explains how different threads of the existing debate contribute to a single topic. We close by briefly considering two recent arguments about exclusive positivism, to illustrate how our discussion bears on contemporary jurisprudential debates.

Hume’s Law that one cannot derive an “ought” from an “is” has often been deemed to bear a significance that extends far beyond logic. Repeatedly, it has been invoked as posing a serious threat to views about normativity: naturalism in metaethics and positivism in jurisprudence. Yet in recent years, a puzzling asymmetry has emerged: while the view that Hume’s Law threatens naturalism has largely been abandoned (due mostly to Pigden’s work, see e.g. Pigden 1989), the thought that Hume’s Law is a serious challenge to positivism has only grown in prominence. Our main aim is to establish that Hume’s Law is not a threat to positivism or naturalism. First, we connect extensive, but unfortunately siloed, discussions of this issue. Second, we show that Hume’s Law is not a serious threat to naturalism or positivism, for the gap between logic and such theses is very hard to bridge in a way that would make Hume’s Law able to bear this significance. Finally, we emphasize an implication of our discussion: it undermines one of the main “dialectical tributaries” in jurisprudence (Toh 2018).

If a reliable testifier tells you that a song is beautiful or that an act is wrong, do you thereby have a reason to approve of the painting and disapprove of the agent's action? Many insist that we don’t: normative testimony does not give us reasons for affective attitudes like approval. This answer is often treated as a datum in the literatures on moral and aesthetic testimony. I argue that once we correct for a common methodological mistake in these literatures, the answer must be Yes. I then show why this matters for the broader discussion of the puzzle(s) posed by deference to moral and aesthetic testimony.

“X-Firsters” hold that there is some normative feature that is fundamental to all others (and, often, that there’s some normative feature that is the “mark of the normative”: all other normative properties have it, and are normative in virtue of having it). This view is taken as a starting point in the debate about which X is “on first.” Little has been said about whether or why we should be X-Firsters, or what we should think about normativity if we aren’t X-Firsters. Hence the chapter’s two main goals. First, to provide a simple argument that one shouldn’t be an X-Firster about the normative domain, which starts with the observation that analogous views have dubious merits in analogous domains. Second, to offer an alternative view—taking normativity to be a determinable explained in terms of its determinates—that offers an interesting way to think about the structure and unity of normativity.