•  229
    Should Law track Morality?
    Criminal Justice Ethics 36 (2): 205-223. 2017.
    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 answe…Read more
  •  204
    Well-Being and Fairness
    Philosophical Studies 131 (2): 369-391. 2006.
    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 woul…Read more
  •  193
    Should we prevent deontological wrongdoing?
    Philosophical Studies 173 (8): 2049-2068. 2016.
    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 answ…Read more
  •  170
    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 o…Read more
  •  141
    Hierarchical consequentialism
    Utilitas 22 (3): 309-330. 2010.
    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 – indivi…Read more
  •  139
    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 ignor…Read more
  •  118
    Well-being and fairness in the distribution of scarce health resources
    Journal of Medicine and Philosophy 30 (3). 2005.
    Based on a general thesis regarding the proper resolution of interpersonal conflicts, this paper suggests a normative framework for the distribution of scarce health resources. The proposed thesis includes two basic ideas. First, individual well-being is the fundamental value. Second, interpersonal conflicts affecting well-being should be resolved in light of several conceptions of fairness, reflecting the independent value of persons and the moral significance of responsibility of individuals f…Read more
  •  105
    Making Sense of Discrimination
    Ratio Juris 27 (1): 47-78. 2014.
    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 and widely accepted provides a plausible account of the concept of wrongful discrimination. According to the combined theory, wrongful discrimination consists of allocating a benefit that is not …Read more
  •  96
    Second-Order Equality and Levelling Down
    Australasian Journal of Philosophy 87 (3). 2009.
    Many think that equality is an intrinsic value. However, this view, especially when based on a consequential foundation, faces familiar objections related to the claim that equality is sometimes good for none and bad for some: most notably the levelling down objection. This article explores a unique (consequential) conception of equality, as part of a more general conception of fairness concerning the resolution of interpersonal conflicts, which is not exposed to these objections.
  •  75
    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, McMah…Read more
  •  70
    Freedom of Expression: Justifications & restrictions
    Israel Democracy Institute. 2008.
    "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 agai…Read more
  •  65
    Moral Rightness and the Significance of Law: Why, How and When Mistake of Law Matters
    University of Toronto Law Journal, Forthcoming 64 36-63. 2014.
    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 rightn…Read more
  •  63
    The legality of interrogational torture: A question of proper authorization or a substantive moral issue
    with Mordechai Kremnitzer
    Israel Law Review 34 (2): 509-559. 2000.
    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 absenc…Read more
  •  62
    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 …Read more
  •  61
    Continuity in Morality and Law
    Theoretical Inquiries in Law. forthcoming.
    According to the an influential and intuitively appealing argument (the Continuity Argument): (1) morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; (2) the law should usually track morality; (3) 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 r…Read more
  •  49
    Freedom of expression against governmental authorities
    Israel Democracy Institute. 2001.
    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 justificati…Read more
  •  48
    How should a democratic state fight terrorism? This is the question discussed by Michael Ignatieff in his latest book. Ignatieff explores several possible positions as a response to this question. The review considers the analysis of these positions.
  •  48
    Justification Under Uncertainty
    Law and Philosophy 31 (5): 523-563. 2012.
    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 t…Read more
  •  42
    Weighing values and balancing interests
    Israel Democracy Institute. 2008.
    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…Read more
  •  37
    Sub-Optimal Justification and Justificatory Defenses
    Criminal Law and Philosophy 4 (1): 57-76. 2010.
    Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are justified—usually since they prevent harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies to actions that do not reflect all pertinent principles optimally due to mistake but are not too far from this optimum. In the pap…Read more
  •  35
    Justice and Chances
    Journal of Social Philosophy 49 (2): 315-333. 2018.
    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…Read more
  •  31
    What is the appropriate division of power between public officials and private individuals? The straightforward answer to this question, it seems, is that an official should have a power if she employs it (morally) better compared to a private individual. However, Alon Harel argues that this answer is misguided, or at least partially, since there are some decisions—mainly concerning the employment of violence—that should be made and implemented only by public officials regardless of the (relativ…Read more
  •  30
    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 concept…Read more
  •  25
    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 …Read more
  •  13
    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 theo…Read more
  •  12
    Responsibility and Justificatory Defenses
    Criminal Law and Philosophy 11 (1): 97-110. 2017.
    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…Read more
  •  11
    General Versus Special Theories of Discrimination
    Journal of Moral Philosophy 1-34. forthcoming.
    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…Read more