Mark Tunick

J.S. Mill argues against licensing or forced medical examinations of prostitutes even if these would reduce harm, for two reasons: the state should not legitimize immoral conduct; and coercing prostitutes would violate Mill's harm principle as they do not risk causing non-consensual harm to others, their clients do. There is nothing puzzling about Mill opposing coercive restrictions on self-regarding immoral conduct while also opposing state support of that conduct. But why does Mill oppose restrictions on prostitutes’ liberty if those restrictions could prevent harm to third parties? Mill's position is not puzzling once we recognize that his harm principle is not a harm-prevention principle that warrants restrictions on liberty to prevent harm no matter who caused it (as David Lyons famously argued) but instead warrants restrictions on liberty only of individuals who are the morally relevant cause of that harm. Mill's discussion of prostitution shows he prioritizes both individuality and moral progress over harm reduction.

Mass surveillance involves the collection and storage of vast amounts of information, such as DNA samples from the general population, or location data from cell phones towers, aerial surveillance, and other sources, to then be used when a future crime occurs. For example, DNA from a crime scene could be checked against the database to identify a suspect; location data could identify suspects who were at the scene of a crime. Mass surveillance implicates important privacy interests, but it would surely reduce crime and therefore has been defended by those who reject “privacy at all costs.” I also reject “privacy at all costs.” However, while agreeing that privacy is a value that must be balanced against competing values, I argue that requiring everyone to provide a sample of their DNA or keeping track of everyone’s movements would limit the autonomy of vast numbers of people who there is no reason to suspect will pose a threat, and though such policies would make society safer, that is not worth the cost to individual autonomy. After explaining why individuals can have a substantial interest in privacy even if they are not guilty of a crime, by linking that interest to the value of individual autonomy, and drawing on a political theory of liberal pluralism to restrict what counts as a legitimate public interest that might justify mass surveillance, I articulate a method of balancing these competing interests that is more feasible than a utilitarian approach.

Mill didn't resolve this puzzle: if prostitution must be tolerated according to his principle of liberty as it doesn't non-consensually harm others, why punish the accessory – the pimp? Yet in On Liberty's passage on pimps (CW 18:296–7) Mill seriously considers restricting pimps’ speech for reasons other than preventing harm: pimps’ speech undermines decisional autonomy for purposes the state regards as immoral, and in response the state may use coercion to counteract such immoral influences. In light of this, I argue that we need to rethink the standard view that Mill opposes restrictions on speech that does not harm others.

A liberal pluralist state recognizes that its members exercise a variety of religions or hold diverse comprehensive doctrines, and strives for neutrality so that none is favored. Neutrality can come into tension with the demands of individuals to express their religion in public spaces. I focus on a display of a “finals tree,” that many regard as a Christmas tree, on the campus of a public university, a display objected to by a small minority of non-Christian faculty and students who claim it makes them ‘outsiders’ and should be removed. While display of a Christmas tree doesn’t violate the First Amendment because the Court has ruled it is a secular symbol, resolving that legal issue doesn’t resolve the ethical issue of which side should accommodate the other. To address that, I turn to traditional theories of Kant and Mill, who would side with the tree displayers, who are causing no harm and restricting no one else’s liberty. Finding this resolution wanting, I develop a modified version of Jeremy Waldron’s ‘adequacy’ principle, which has us be sensitive to the aims of others when our actions keep them from adequately pursuing their legitimate aims, so long as accommodating them does not keep us from adequately pursuing our own. I depart from Waldron in arguing that in assessing each side’s claims we should sometimes conduct a limited inquiry into the sincerity of one’s religious reasons, and this inquiry would not be incompatible with liberal pluralism’s requirement that we appeal to public reason.

When mature minors face a decision with important consequences, such as whether to undergo a risky but potentially life-saving medical procedure, who should decide? Relying on liberal political theory’s account of the importance of decisional autonomy for adults, and given the scalar nature of the capacities needed to exercise decisional autonomy, I argue that mature minors with the requisite capacities and commitments have a right to decisional autonomy though they are not yet 18. I argue for this right using a ‘balancing of interest’ account of rights: the interest mature minors have in decisional autonomy outweighs their parents’ interest in shaping their children as a means of ‘creative self-extension’. But I propose two limitations on this right: requests for waivers of the rule that one must be at least 18 to decide cannot be so numerous as to make adjudication impractical; and though a competent adult’s voluntary decision to refuse medical treatment should generally be respected, the state may reject a mature minor’s decision upon review by an indifferent judge of the minor’s capacities and reasons. The judge reviews not the substantive merits or prudence of the decision, but whether the decision promotes the interest in decisional autonomy, by asking among other things whether the decision is the minor’s own, is tethered to core commitments rather than based on arbitrary preferences, and could be regarded as reasonable to the minor’s ‘future self’.

Through a series of texts and phone calls, Michelle Carter encouraged her boyfriend Conrad Roy to act on his suicidal thoughts, and after Roy killed himself, Carter was convicted of involuntary manslaughter. The case has received widespread attention, generating reactions ranging from rage at Ms. Carter to disbelief that she was convicted. An issue emphasized up to now is what it might mean for the First Amendment right of free speech if we hold that words can kill. In presenting the case against punishing Ms. Carter, I show how the free speech issue intertwines with several others: Should the intimate exchanges between Carter and Roy have remained private? While privacy is valuable, it should not be a shield for harmful conduct, but did Ms. Carter, through her words, cause harm? If she believed that suicide would relieve Conrad of unbearable suffering, did she even act badly? And should the fact that society judges an individual’s actions to be immoral mean that the individual should be legally punished? The case serves as a touchstone for addressing fundamental issues of political, moral and legal theory with implications broader than whether Ms. Carter goes to prison.

There are many studies of Hegel's Philosophy of Right. Philip Kain does not break new ground in Hegel and Right. Nor does he deal with the German scholarship that did, by posing the possibility of an esoteric Hegel belying the exoteric author caving to censorship pressure. Still, he has provided us a worthwhile book that touches on some controversial issues. Kain professes to be a Marxian and social democrat who opposes capital punishment and supports same-sex marriage and, perhaps not coincidentally, his Hegel is open to at least the latter three positions. Some scholars of Hegel may be dismayed that there is little reference to Hegel's Logic, though they should appreciate Kain emphasizing how the Absolute is the...

Hegel's Rechtsphilosophie is metaphysical, to be sure; but it is also political. To help show this I will make sense, and show the plausibility and relevance, of what appears to be one of the most metaphysical (and bizarre) claims to be found in Hegel's political philosophy: his justification of hereditary monarchy. While among Hegel scholars Hegel's theory of constitutional monarchy has been a focus of heated debate over whether Hegel is a liberal or a conservative; and has recently become a focus in the debate over whether Hegel accommodated himself to the Prussian government out of fear of censorship by publishing an exoteric view endorsing hereditary monarchy that belies his �genuine�, more democratic view, to the nonspecialist Hegel's argument will seem to be of little relevance -- hereditary monarchy is not a live option for us in the 1990s. My intention in giving it serious consideration is not to have us entertain hereditary monarchy as an undeservedly neglected possibility, but rather to put the brakes on a tendency to dismiss Hegel as too much the idealist to dirty his hands with politics

Dateline NBC’s “To Catch a Predator”(2006-08) involved NBC staff working with police and a watchdog group called “Perverted Justice” to televise “special intensity” arrests of men who were lured into meeting adult decoys posing as young children, presumably for a sexual encounter. As reality television, “To Catch a Predator” facilitates public shaming of those caught in front of the cameras, which distinguishes it from fictional representations. In one case, a Texas District Attorney, Louis Conradt, shot himself on film, unable to bear the public humiliation of cameras airing his arrest. The show engenders conflicting responses: Did the show fulfill a public service by informing the public about real dangers and deterring potential predators, or was it an insensitive effort to garner ratings by taking advantage of human weaknesses? Is the sort of public shaming it imposes an appropriate form of punishment given the legitimate purposes of punishment? Did the show portray justice, or did it entrap victims? How did NBC’s working relationship with local police bear on the answer to that question? This paper addresses these questions and develops three objections to the show: that NBC in effect metes out unjust punishment; that it invades privacy; and that it entraps.

In an age of smartphones, Facebook and You Tube, privacy may seem to be a norm of the past. This book addresses ethical and legal questions that arise when media technologies are used to give individuals unwanted attention. Drawing from a broad range of cases within the US, UK, Australia, Europe, and elsewhere, I ask whether privacy interests can ever be weightier than society’s interest in free speech and access to information. Taking a comparative and interdisciplinary approach, and drawing on the work of political theorist Jeremy Waldron concerning toleration, the book argues that we can still have a legitimate interest in controlling the extent to which information about us is disseminated. The book begins by exploring why privacy and free speech are valuable, before developing a framework for weighing these conflicting values. By taking up key cases in the US and Europe, and the debate about a ‘right to be forgotten’, I discuss the potential costs of limiting free speech, and point to legal remedies and other ways to develop new social attitudes to privacy in an age of instant information sharing.

I argue that Hegel is an immanent critic: he adduces the principles immanent in our practices in order to criticize actual practices when they diverge from these principles. Hegel uses the principle he understands to underlay the practice of legal punishment, retribution, to guide practitioners who must justify why we punish for certain actions; why the state may punish; why we punish this person; why we punish in this way. Each of these problems arises within "subpractices" of the practice--lawmaking, "clutching" of suspects, determination of guilt, sentencing, and infliction of punishment. Hegel guides us by pointing to the purpose of and principle immanent in the practice to which these subpractices belong. ;Hegel's strategy of immanent criticism is promising but problematic, in part because legal punishment is an essentially-contested practice: at least two conflicting principles are immanent in it , so any account that brackets either is inadequate. At times in the practice we must choose between the two principles. I argue that Hegel persuasively shows the costs of ignoring the retributive principle. ;Hegel often is said to give up social criticism, to accommodate himself to existing practices. Others have challenged this claim. By distinguishing two sorts of criticism--immanent and radical--I resolve this dispute: Hegel is an immanent critic; rather than uncritically accept actual practices, he subjects them to the standards he finds immanent in them. But as immanent critic, Hegel seems to presuppose the justice of the practices from which he adduces his standard of criticism--Hegel is a positive justifier who avoids radical criticism. While Hegel's general project is to reconcile us to existing practices, he also leaves open the possibility for radical criticism when our practices are bad root and branch. To establish this I make use of recently published but as of yet untranslated lecture notes of Hegel's Rechtsphilosophie lectures. Some argue Hegel was unable to publish his genuine political views in his Philosophy of Right on account of Prussia's censorship laws, and so the lecture notes are a crucial source of Hegel's political views

The inability thesis holds that one’s culture determines behavior and can make one unable to comply with the law and therefore less deserving of punishment. Opponents of the thesis reject the view that humans are made physically unable to act certain ways by their cultural upbringing. The article seeks to help evaluate the inability thesis by pointing to a literature in cultural psychology and anthropology presenting empirical evidence of the influence of culture on behavior, and offering conceptual analysis of the concept of determinism and its connection to moral culpability. Without conceding that culture never determines behavior, I argue that opponents of the inability thesis err in drawing a moral implication from this premise. What matters in formulating moral judgments about punishment are not the possibility but the reasonability of complying with the law. Cultural influences may make an action reasonable that without similar cultural influences would be unreasonable.

Is it always morally wrong to violate a law and in doing so does one necessarily act badly? I argue that whether in breaking a law one acts badly depends on considerations unique to the particular act of lawbreaking. The moral judgment in question is deeply contextual and cannot be settled by appeal to blanket moral rules such as that it is wrong to break (any) law. The argument is made by focusing on the example of a runner having to decide whether to disobey the law against trespass. If in trespassing one acts badly it is not because there is a prima facie moral obligation to obey law. Theories of political obligation which ground an obligation to obey law in the principles of fairness or gratitude or in consent all fail to provide a persuasive reason not to trespass given a particular fact situation. I argue that when it is morally wrong to trespass it is morally wrong not because one has broken the law, but because and insofar as one has violated reasonable expectations of privacy. Whether there is a reasonable expectation of privacy in one's property depends in part on the character of the property in question.

Philosophers have focused on why privacy is of value to innocent people with nothing to hide. I argue that for people who do have something to hide, such as a past crime, or bad behavior in a public place, informational privacy can be important for avoiding undeserved or disproportionate non-legal punishment. Against the objection that one cannot expect privacy in public facts, I argue that I might have a legitimate privacy interest in public facts that are not readily accessible, or in details of a public fact that implicate my dignity, or in not having a public fact memorialized and spread to more people than I willingly exposed myself to.

Hegel claims democracy is inappropriate for a modern state and offers two justifications: an empirical one focusing on the failure of existing democracies; and a metaphysical one focusing on the inappropriateness for the modern state of the ideal of individual sovereignty that Hegel associates with democracy. This paper shows how Hegel’s discussion of democracy is relevant to the broader interpretive questions of whether Hegel’s understanding of history and of the development of political institutions is truly empirical and whether Hegel accepts the relativist implications of an empirical approach.

The Dispossessed has been described by political thinker Andre Gorz as 'The most striking description I know of the seductions—and snares—of self-managed communist or, in other words, anarchist society.' To date, however, the radical social, cultural, and political ramifications of Le Guin's multiple award-winning novel remain woefully under explored. Editors Laurence Davis and Peter Stillman right this state of affairs in the first ever collection of original essays devoted to Le Guin's novel. Among the topics covered in this wide-ranging, international and interdisciplinary collection are the anarchist, ecological, post-consumerist, temporal, revolutionary, and open-ended utopian politics of The Dispossessed. The book concludes with an essay by Le Guin written specially for this volume, in which she reassesses the novel in light of the development of her own thinking over the past 30 years

To scholars of Western intellectual history Hegel is one of the most important of all political thinkers, but politicians and other "down-to-earth" persons see his speculative philosophy as far removed from their immediate concerns. Put off by his difficult terminology, many participants in practical politics may also believe that Hegel's idealism unduly legitimates the status quo. By examining his justification of legal punishment, this book introduces a Hegel quite different from these preconceptions: an acute critic of social practices. Mark Tunick draws on recently published but still untranslated lectures of Hegel's philosophy of right to take us to the core of Hegel's political thought. Hegel opposes radical criticism like that later offered by Marx, but, argues Tunick, he employs "immanent" criticism instead. For instance, Hegel claims that punishment is the criminal's right and makes the criminal free. From this standpoint, he defends specific features of the practice of punishment that accord with this retributive ideal and criticizes other features that contradict it. In a lucid account of what Hegel means by right and freedom, Tunick addresses Hegel specialists and those interested in criminal law, the interpretation of legal institutions and social practices, and justification from an immanent standpoint. Originally published in 1992. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

The Philosophy of Right is an enormously complex work, and any short treatment of it has to set limits for itself. Harry Brod, in this highly readable and useful new book, chooses to focus only on the last third of the Philosophy of Right, in which Hegel discusses civil society and the state, and also limits his scope by avoiding engagement with much of the relevant secondary literature. This is not to say Brod avoids larger interpretive questions; on the contrary, he focusses on the concrete political institutions in the last third of the Philosophy of Right in order to advance his general thesis that Hegel’s analysis of history, as the development of human beings’ consciousness of their freedom, shapes the philosophic enterprise and structure of the Philosophy of Right. In Brod’s view, Hegel intends to show how the practices and institutions discussed in the Philosophy of Right “engender in the citizens of the Hegelian state an ever-more-conscious awareness of their roles as political agents”. In Hegel’s view, “people and institutions in succeeding historical periods display increasingly greater consciousness of their freedom”. This is due to appropriate political institutions that have developed in history - “for Hegel, subjective freedom follows the institutionalization of objective freedom, not the reverse”. Brod suggests that for Hegel we can judge and criticize our political institutions according to whether they fulfill the principles toward the realization of which history is aiming. These principles - “subjective freedom,” “universality,” and “rationality” - are reflected in the modern consciousness of Hegel’s day, as a result largely of the French Revolution but also of Protestantism. Part of Brod’s thesis is that Hegel insists on drawing on these principles precisely because they contribute to the modern consciousness of Hegel’s own time. There is one other “primary principle of the modern world,” though, one shunned by the Revolutionaries and their liberal theorists of abstract individualism, namely, “being part of the world in which one feels at home”, and Brod repeatedly shows how Hegel invokes this additional “principle” to criticize modern liberal thought. I shall have more to say about these principles later.

Does privacy--the condition of being invisible to public scrutiny--in so emphasizing individual rights, undermine community? One objection to privacy is that it is a license to engage in antisocial activity that undermines social norms. Another objection is that privacy encourages isolation and anonymity, also undermining community. Drawing on the political theory of Hegel, I argue that privacy can promote community. Some invasions of privacy can undermine a sort of autonomy essential for maintaining a community. I also discuss what we need to know before establishing whether privacy empirically promotes or undermines community.

Hegel thinks the state is so important to our identity that we should be willing to give our lives for it. He characterizes the state as our ethical "substance." It is sometimes inferred from this that he thinks members of a modern state form a tightly-knit, culturally and ethnically homogeneous community. A close reading of his texts shows, rather, that Hegel does not think they must be a "community," or of the same race or ethnicity, or speak the same language, or practice the same religion. I explore Hegel's view of the ties that bind members of a state, arguing that what he thinks members must share are social practices. I conclude by considering whether in his effort to forge a common identity Hegel resorts to ties too weak to justify the claims he makes about the state being our substance, something worth dying for.

I address the question, ‘Should a retributivist support an entrapment defense and if so, under what circumstances?’, by considering the culpability of entrapped defendants. An entrapment defense is invoked by defendants who claim they violated the law because they were enticed to crime by the police and would not otherwise have committed the crime. There are different rationales for the defense: people who are normally law abiding, and who are not predisposed to commit crimes, do not commit crimes merely when the opportunity is presented, without further coaxing—only criminals do—and so spending resources to entice and then punish such “false criminals” is wasteful from a utilitarian perspective. Several theorists assume retributivists must oppose the defense: entrapped defendants have broken the law and, according to one version of retributivism (Mabbott), this itself might warrant punishment; they are still culpable although they were enticed, because succumbing to temptation is no defense—there is no ‘private entrapment defense’; and to not punish the non-predisposed who are enticed to crime by government, while punishing those who are predisposed, is wrongly to assert that a person’s culpability hinges on their predisposition and wrongly to punish someone not for their present conduct but for their character or past actions. I explore some reasons why a retributivist can support an entrapment defense. First, entrapped defendants may be less culpable than the privately enticed insofar as they do not cause harm. As police control the situation, no actual harm is caused, and whether one actually causes harm may bear on one’s culpability; and if one’s predisposition was weak and required substantial police coaxing to be triggered, we might say that the police action and not the defendant caused the crime in the relevant sense. Second, applying Robert Nozick’s account of coercion in a novel way, I consider the argument that entrapped defendants may be less culpable insofar as their action was not fully voluntary, in that unlike in private enticement cases, they necessarily underestimate the probability of being caught before making their choice.

New technologies of surveillance such as Global Positioning Systems (GPS) are increasingly used as convenient substitutes for conventional means of observation. Recent court decisions hold that the government may, without a warrant, use a GPS to track a vehicle’s movements in public places without violating the 4th Amendment, as the vehicle is in plain view and no reasonable expectation of privacy is violated. This emerging consensus of opinions fails to distinguish the unreasonable expectation that we not be seen in public, from the reasonable expectation that we not be followed. Drawing on a critical discussion of the plain view doctrine, analysis of privacy interests in public places, and distinguishing privacy from property interests, the article contends that government use of GPS to track our movements should require a warrant.

In the Phenomenology Hegel insists there are no presupposed standards of truth: standards are internal. "Consciousness provides its own criterion from within itself, so that the investigation becomes a comparison of consciousness with itself"(PhdG 84). We need only contemplate "the matter in hand as it is in and for itself"(PhdG 84). The Phenomenology is a characterisation of consciousness taking on increasingly adequate forms, testing its own internal standards against experience. The Philosophy of Right is a search for right, not, as in the Phenomenology, for the reality of cognition; but one of the methods Hegel adopts and which helps make sense of the structure of Philosophy of Right is the method he uses in the Phenomenology. This paper offers an alternative, though not necessarily conflicting, interpretation to that given in recent accounts of Philosophy of Right that emphasize its "logical spirit." While the phenomenological account is not necessarily incompatible with these others, it will point to a nonfoundational interpretation of Hegel's phenomenological method that is.

The natural duty theory holds that "we have a natural duty to support the laws and institutions of a just state" (Jeremy Waldron). We owe this not because we ever promised to support these laws and institutions, nor because fair play requires we support the cooperative ventures from which we receive benefits. The claim is that we have a general duty to promote institutions that do something justice requires wherever these institutions may be, a duty that does not depend on our having special ties to these institutions, special ties of the sort we have to the institutions of our own government. I argue that we do not need to appeal to the idea of a natural duty to justify compliance with many laws. For example, New Zealanders must not murder, rape, or steal while in France, not because they have a duty to obey laws of a just state, but because it is wrong to murder, rape, or steal. If the natural duty theory is taken to be a statement of the conditions necessary for an obligation to exist, it would wrongly conclude there is no duty to obey laws against murder or rape in a state whose institutions and laws are not just. A second class of laws reflect not moral judgments but, rather, local conventions, conventions that are morally arbitrary but which may be useful in coordinating action. For example, New Zealanders visiting France must drive on the right side of the road, as dictated by French convention. Here, too, the natural duty theory fails to provide a suitable account of the relation noncitizens have to such laws. Our reasons for driving on the right side of the road when this is accepted convention have nothing to do with the justice of the institutions of the state. To flout this convention is not to undermine justice since there is nothing just or unjust about driving on one side of the road or another. I question the advantages of the natural duty theory, especially in light of important ambiguities in the theory.

Recent legal opinions and scholarly works invoke the political philosophy of John Locke, and his claim that there is a natural right of self-defense, to support the view that the 2nd Amendment’s right to bear arms is so fundamental that no state may disarm the people. I challenge this use of Locke. For Locke, we have a right of self-defense in a state of nature. But once we join society we no longer may take whatever measures that seem reasonable to us to defend ourselves: we are bound to the law duly enacted according to the original Constitution to which we consented. For Locke, how best to avoid dissolution of government and preserve individual liberty is for the people to judge collectively, unconstrained by natural proscriptions on gun regulations, limited only by the demands that government not be arbitrary and that it serve the public good.

Thom Brooks criticizes utilitarian and retributive theories of punishment but argues that utilitarian and retributive goals can be incorporated into a coherent and unified theory of punitive restoration, according to which punishment is a means of reintegrating criminals into society and restoring rights. I point to some difficulties with Brooks’ criticisms of retributive and utilitarian theories, and argue that his theory of punitive restoration is not unified or coherent. I argue further that a theory attempting to capture the complex set of rules and behaviors that constitute the practice of legal punishment cannot persuasively be unified and coherent: legitimate features of the practice advance goals and promote values that in some cases conflict.