Re'em Segev

In this paper, I distinguish between two types of normative accounts of discrimination – general and special – and argue for the former and against the latter. General accounts consider the moral status of discrimination in light of all of the reasons that apply to discrimination, and hold that these reasons are not unique to discrimination (for example, the reasons to bring about the greater benefit or prevent the greater burden, to give priority for people who are worse off, and to give people what they morally deserve). In contrast, special accounts argue that discrimination is objectionable due to factors that are especially salient in the context of discrimination (examples are the "deliberative" freedom of people to decide how to live without considering facts such as their race or sex, the message conveyed by discriminatory actions in terms of the moral status of people, and the mental states that accompany discriminatory actions). I argue that general accounts are more plausible than special ones, as foundational accounts of discrimination that determine its overall moral status (both types of accounts appear to suggest such accounts). One argument is that special accounts that suggest conclusions regarding the overall moral status of discrimination without considering all of the pertinent factors, especially general ones, are implausible. Another argument is that special accounts that claim that the factors that they highlight are basic are misguided since these factors are morally significant only if, and to the degree to which, they are derived from general ones.

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them.

According to an appealing and common view, the moral status of an action – whether it is wrong, for example – is sometimes important in itself in terms of the moral status of other actions – especially those that respond to the original action. This view is especially influential with respect to the criminal law. It is accepted not only by legal moralists but also by adherents of the harm principle, for example. In this paper, I argue against this view. The main arguments emphasize the distinctions between the moral status of actions, consequences, and agents. I argue that what matters, in terms of other actions, is not the moral status of the original action but rather other factors that may be confused with it, such as the moral status of its consequences – whether they are good or bad – and the moral status of the agent – whether she is praiseworthy or blameworthy. The intuitive appeal of the common view is, I argue, at least partly due to a conflation of these factors. Most importantly, once we recall the distinctions between these factors, we can see more clearly that this view lacks a compelling rationale. Or, at least, that it is based on assumptions that, first, are much more controversial than their conclusion, and, second, do not support every aspect of this view – and thus do not offer a unified foundation for this view.

According to influential view, using the criminal law against innocent actions or agents is wrong. In this paper, I consider four related arguments against this view: a debunking argument that suggests that the intuitive appeal of this view may be due to a conflation of different ideas; a counterexamples argument that points out that there are many cases in which using the criminal law against innocent actions ("non mala" actions that are not even "mala prohibita") or agents is justified; a theoretical argument, according to which the force of the reasons for and against using the criminal law is a matter of degree and it is therefore implausible to hold that the latter always defeat the former; and an analogy argument, which holds that it is implausible to maintain that harming innocents is often justified in other contexts but (almost) never in the context of the criminal law.

According to an influential and intuitively appealing argument, morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; the law should usually track morality; therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment when the action is almost reasonable and no punishment at all when the action is reasonable. In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous.

A common concern regarding affirmative action is that it sanctions the selection of candidates whose qualifications are not the best overall and that this is inefficient or unjust or both. I argue that this concern is misguided, since there is no independent concern regarding qualifications with respect to the moral status of affirmative action. The only sense in which qualifications are not morally arbitrary—and the only sense in which there is a reason to select the most qualified candidate—is purely instrumental to the promotion of moral values whose fundamental concern is not qualifications.

According to a common view, in a case involving an indivisible good and several potential beneficiaries, who are equal in every relevant respect, there is a non-instrumental reason to allocate the benefit in a way that gives each an equal chance to receive the benefit. In this paper, I argue that this view is incompatible with several plausible and widely held assumptions. I emphasize especially the assumption that the distributive role of chances is secondary to that of benefits in an important sense: the value of allocating chances is related to the ways in which it is possible to allocate the relevant benefits. Specifically, chances should be allocated only when it is impossible or too costly to allocate benefits in accordance with the relative importance of the reasons in favor of allocating the relevant benefit to each potential beneficiary. Given this assumption, I argue that the fact that there is no relation between the distributive concern for chances and other distributive concerns suggests that we should reject the view that chances have a distributive role that is not merely instrumental.

The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the other hand, there is a strong intuition that the consequences of actions sometimes affect the responsibility of agents even when these consequences depend on factors that are beyond their control. A parallel dilemma is present in the law. Legal rules, particularly criminal law rules and tort rules, often differentiate between agents in light of factors that are beyond their control, and in this sense involve legal luck. Of course, factors beyond the control of persons, including the consequences of their actions, can be significant, with respect to the evaluation of the responsibility of persons for instrumental or epistemic reasons. The question is thus only with respect to the independent significance of factors beyond the control of agents, and particularly the consequences of actions, to the evaluation of the (extent of the) responsibility of agents. Benjamin Zipursky offers an interesting argument in order to support the intuition in favor of moral and legal luck, particularly with regard to consequences, especially the rule according to which the punishment of completed offences is more severe than the punishment of attempts and the rule that tort liability applies only to actions that have caused harm. The aim of this Comment is to evaluate this argument. I will try to consider to what extent Zipursky's explanation merely reiterates the familiar intuition that the normative evaluation of the conduct of persons should be influenced by consequential luck, and to what extent it provides new insights that might appeal also to those who are more forcefully drawn to the contrasting intuition that we should judge people only in light of factors that are within their control. I argue that while Zipursky's suggestions might appeal to those who already share the intuition in favor of (consequential) moral and legal luck, they would not convince those who have doubts regarding moral and legal luck.

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law.

The article explores the interaction of two, potentially clashing, considerations, each reflecting a different conception of fairness concerning the resolution of interpersonal conflicts. According to the Equal Chance Principle, the harm for each person should be minimized in a significant and (roughly) equal degree; when this is impossible, each person should be accorded the highest possible equal chance to avoid the harm. According to the Importance Principle, the danger to the person who would otherwise suffer the more serious harm should be prevented.

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture.

There is a controversy as to the moral status of an action in the face of uncertainty concerning a non-moral fact that is morally significant (according to an applicable moral standard): According to the objective conception, the right action is determined in light of the truth, namely the actual state of affairs (regarding the pertinent fact), whereas according to the subjective conception, the right action depends on the epistemic state of the agent, namely her (justified) belief (concerning the pertinent fact). A similar debate concerns the law, with respect to uncertainty regarding a legally significant fact. In this paper, I argue that moral and legal normative concepts are ambiguous and include two aspects: The ideal aspect, which is concerned with the constitutive feature of the normative standard, and the pragmatic aspect, which determines the correct action under uncertainty . With regard to each aspect, a different conception is appropriate: The objective conception should govern the ideal aspect and the subjective conception the pragmatic aspect. And the relevant aspect (and therefore the appropriate conception) depends on the question under consideration regarding the pertinent normative standard: what is its constitutive feature or whether an action is right (according to the applicable normative standard) in the face of uncertainty

One of the central normative questions regards a decision between conflicting moral values. A decision of this nature is often required in disciplines such as philosophy, economics and law. According to common terminology, a decision between conflicting values reflects a balance of values, considerations or interests. Several types of questions arise in this context. One category includes substantive questions: which values exist, which considerations should be derived from these values, what is the degree of importance of these considerations, and which principles should be established for deciding between conflicting considerations? Another category includes institutional questions: which individual or body should decide normative questions, and should the normative nature of the decision be manifest or concealed? This paper is an abstract of a book that considers general aspects concerning these questions.

According to a famous maxim, ignorance or mistake of law is no excuse. This maxim is supposed to represent both the standard and the proper rule of law. In fact, this maxim should be qualified in both respects: ignorance and mistake of law sometimes are, and (perhaps even more often) should be, excused. But this dual qualification only reinforces the fundamental and ubiquitous assumption which underlies the discussions of the subject, namely, that the only ground of exculpation relevant to ignorance or mistake of law is excuse due to lack of (sufficient) culpability. The paper challenges this consensus. I argue that, according to the best conception of justification, ignorance and mistake, including ignorance and mistake of law, could be justified. Generally, ignorance and mistake are justified when based on a rational analysis of the information the agent has and should have. The conceptual possibility of justified ignorance or mistake is demonstrated mainly with respect to ignorance or mistake of law due to reliance on the guidance of public officials or private lawyers.

Is there a reason to prevent deontological wrongdoing—an action that is wrong due to the violation of a decisive deontological constraint? This question is perplexing. On the one hand, the intuitive response seems to be positive, both when the question is considered in the abstract and when it is considered with regard to paradigmatic cases of deontological wrongdoing such as Bridge and Transplant. On the other hand, common theoretical accounts of deontological wrongdoing do not entail this answer, since not preventing wrongdoing does not necessarily amount to doing harm or intending harm, for example. The puzzle is reinforced due to the fact that the intuitive response to other cases seems to be different, namely that there is no reason in favour of preventing deontological wrongdoing. This question is thus interesting in itself. It might also shed light on additional questions such as the “paradox of deontology” and the appropriate response to wrongful actions more generally. Yet, despite its importance, this question is typically overlooked. The paper explores this question.

The subject of this study is the justification for limiting negative expression directed at the government: its institutions and public officials, in order to preserve public faith in government. This paper is an abstract of a book that considers this question. The conclusion is that since the value of speech concerned with the performance of government is very high and the interest in protecting the status of government is limited and typically not substantial, there is generally no justification for legal restrictions of this kind.

The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question, namely whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises, regarding moral rightness under uncertainty, the nature of law and the moral significance of law, entail a positive answer to this question. Specifically, I consider this argument: (1) one (subjective) sense of moral rightness depends on the (epistemically justified) belief of the agent concerning a non-moral fact that is morally significant; (2) a law is (partly) a non-moral fact; (3) a legal fact might be morally significant; (4) therefore an action that is compatible with an applicable moral standard, in light of the mistaken (justified) belief of the agent concerning a morally significant law, is (subjectively) right or less wrongful; (5) the (subjective) moral rightness of an action counts against criminal liability for this action; (6) therefore an action that is compatible with the applicable moral standard, in light of the mistaken (epistemically justified) belief of the agent, counts against criminal liability for the action if the law is morally significant.

The main aim of Jeff McMahan's manuscript on the morality of war is to answer the question: why and accordingly when is it justified or permissible to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. McMahan rejects all doctrines of collective responsibility and liability. His claim is that every individual is liable for what he has done and not for the actions of others - even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Many of McMahan's main claims are appealing. Particularly, appealing is his rejection of the collectivist account of war. Indeed, it seems that the simple story according to which people are responsible solely for their actions - rather than (also) to the actions of others - should be held on until a different, more complex, account of collective responsibility is put forward and its plausibility is explained. Therefore, the article focuses on the general principles advocated by McMahan with regard to the resolution of all interpersonal conflicts: Whether these conflicts are small scale or large scale (that is, whether few or a many people are involved in the conflict), and within the latter category of conflicts involving many people, whether these conflicts qualify as war (according to some standard) or not.

In this comment I consider Jack Balkin’s general argument for his method of constitutional interpretation – the question of why interpret (the United States Constitution) in this way (as presented in his book Living Originalism). I contrast this question with the way in which the conclusion of this argument should be implemented with regard to specific clauses – the question of how to interpret (the United States Constitution). While the former question is concerned with the general form of the argument, the latter is concerned with a substantiation of one premise in the argument.

The paper considers a hierarchical theory that combines concern for two values: individual well-being – as a fundamental, first-order value – and (distributive) fairness – as a high-order value that its exclusive function is to complete the value of individual well-being by resolving internal clashes within it that occur in interpersonal conflicts. The argument for this unique conception of high-order fairness is that fairness is morally significant in itself only regarding what matters – individual well-being – and when it matters – in interpersonal conflicts in which constitutive aspects of individual well-being clash. Consequently, the proposed theory is not exposed to claim that fairness comes at the expense of welfare. This theory is considered within a consequential framework, based on the standard version and, alternatively, on a novel interpretation of consequentialism. Thus, it refutes the claim that consequentialism does not take the distinction between persons seriously.

In several papers, I have argued for a theory of distributive justice and considered its implications. This theory includes a principle of responsibility that was endorsed by others within an account of defensive force (self-defense and defense of others). Whitley Kaufman criticizes this account which he refers to as the "distributive justice theory of self-defense" (DJ theory). In this paper, I respond to this criticism. I argue that Kaufman presents the theory inaccurately, that his standard of evaluation of the theory is inadequate and that his claim that the theory should be rejected is unconvincing.

"Freedom of expression" is a complex notion that reflects various considerations and raises many questions related to their content and interaction. This paper is an abstract of a book that considers general aspects regarding the justification and the limits of freedom of expression and analyzes exiting law in light of this normative discussion. Particularly, it considers the way to determine the proper scope of freedom of expression; first-order and second-order considerations in favor and against freedom of expression, both in general and regarding central specific kinds of expressions; and possible ways to normatively regulate the field of expressions - in particular to restrict expressions, primarily by law - and specifically the common view that subsequent punishment for an expression is generally preferable to prior restraint of an expression.

Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a less-responsible person, but that this consideration is not necessarily decisive but rather might be outweighed by another consideration, for example, in favor of preventing the more serious harm. I conclude that responsibility for the conditions of justificatory defenses raises a unique question whose proper resolution should be based on the interaction of several general considerations.

Discrimination is a central moral and legal concept. However, it is also a contested one. Particularly, accounts of the wrongness of discrimination often rely on controversial and particular assumptions. In this paper, I argue that a theory of discrimination that relies on premises that are very general (rather than unique to the concept of discrimination) and widely accepted provides a plausible (exhaustive) account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not supported by a morally significant fact (a valid reason), or in a way that involves distributive injustice, or both.

The article explores the Israeli Supreme Court main judgment regarding the legality of the use of special interrogation methods in order extract information concerning future acts of terror. The Judgment's main conclusion was that while there might be a justification for using exceptional interrogation measures in order to save lives, based on the concept of lesser evil as embedded in the criminal defense of necessity, the government is nevertheless not authorized to use such means in the absence of explicit legislation to that effect. The article presents and evaluates the Judgment, particularly the relation between the substantive moral questions involved and the aspect of authorization.