Stephen K. McLeod

(Under contract with Oxford University Press, Oxford Legal Philosophy series.) This book is a legal and ethical study of state entrapment: that is, entrapment by law-enforcement agents or their deputies. It approaches entrapment via three questions: definition (What makes an act one of entrapment?), permissibility (Under what conditions, if any, is entrapment permissible?), and implications (When someone has been entrapped, what remedy, if any, is appropriate? More broadly, how should the law respond?). It explains these questions, looks at how the law and scholars have answered them, gives our answers to them, and is structured according to them. It treats these questions as distinct, and that of definition as prior (in a sense that it clarifies) to the others. The methodology deployed combines applied analytical philosophy with approaches to comparative legal studies that are predominantly analytical and historical. The main focus, in terms of scope, is upon common-law jurisdictions in the Anglophone world.

The harm principle entails the subprinciple that harm to others provides a pro tanto moral reason for legal or social coercion. We address a ‘scope problem’ for that subprinciple: how can what counts as harm be restricted sufficiently, without sacrificing extensional adequacy, to protect the harm principle’s liberal credentials? While recognizing the centrality of such basic liberties as freedom of speech, freedom of association, and freedom of movement to any liberalism worthy of the name, a satisfactory solution to the scope problem must secure a distinction between conduct that harms others and conduct that, while it might negatively affect others (casually or relationally), does not harm them. We ground such a distinction in a further distinction between needs and attitudes.

Despite being a common phenomenon with significant consequences on our everyday life, strikes (and direct actions in general) are still relatively undertheorized in the philosophical literature. Our paper has a specific focus that is best encapsulated in a question: What is the relationship between liberalism and the right to strike? Liberalism’s cornerstone is the idea that rights and liberties of individuals are of supreme political importance. Rights and liberties, however, are not created equal. The basic liberties are those that are so politically important that legal restrictions upon them are unjustified unless to protect other basic liberties within an overall scheme of liberties, such as under a bill of rights. So, our question becomes: Is the right to strike a basic liberty? Two ongoing disputes are relevant here. The ‘older’ debate concerns the status of economic liberties and their relation to the right to strike. We will focus on a ‘newer’ discussion because it poses a challenge to liberalism itself. Namely, some ‘radical’ critics of liberalism (Gourevitch, Raekstad and Rossi) have argued that there are rights that involve coercing others, exercised during strikes or engagement in other direct action, that do not qualify as liberal basic liberties and that can sometimes take normative precedence over the liberal basic liberties. This criticism, if correct, defeats liberalism. Notice, though: since the weighing of different particular basic liberties against each other in an overall scheme of liberty is integral to high liberalism, the genuine threat that the radical critique poses stems not from the second conjunct (which its proponents have defended) but from its first (which they have merely assumed). For, if (contrary to what the radical work assumes) the right to engage in coercive strike action is a liberal basic liberty then it can, at least in principle, win out over other basic liberties, within an overall scheme of liberties, in situations of prima facie moral conflict. Raekstad and Rossi extend the radical critique, beyond the case of coercive strikes, to other forms of direct action (outside of industrial disputes) that have avowedly moral or political goals. These could include workplace occupations, street blockades, hacktivism, counter-economics, tax resistance and more. In the paper we argue that the ‘radicals’ are not entitled to the assumption that the right to strike is not a liberal basic liberty. Moreover, we suggest, high liberalism has the resources to accommodate not only a general right to engage in non-coercive strike action, but also the right to engage in some forms of coercive direct action, whether as part of an industrial dispute or not. More precisely, we show that liberalism has the resources to accommodate not only (i) a general right to engage in non-coercive strike action, but also (ii) the right to engage in some forms of coercive direct action, whether (iii) as part of an industrial dispute or (iv) not.

We begin by setting out the posision dubbed 'Fregean descriptivism', that Kripke attributed to Frege. We then set out various descriptivist theses. We proced to argue that Kripke’s interpretation of Frege as a reference-fixing descriptivist stems from his ascription of two other views, each logically weaker than reference-fixing descriptivism itself, to Frege. These are sense descriptivism and the view that sense fixes reference. The meaning descriptivism and the reference-fixing descriptivism of Kripke’s Frege have sense descriptivism as their common, logically weaker, core. Since we do not concur with Kripke’s view that Frege was a sense descriptivist, we do not share his reasons for thinking that Frege was a reference-fixing descriptivist.

We discuss how the law and scholars have approached three questions. First, what acts count as acts of entrapment? Secondly, is entrapment a permissible method of law-enforcement and, if so, in what circumstances? Thirdly, what must criminal courts do, in response to the finding that an offence was brought about by an act of entrapment, in order to deliver justice? While noting the contrary tendency, we suggest that the first question should be addressed in a manner that is neutral about the answers to the other two. On the second question, we summarize various arguments about the permissibility of entrapment, while remaining largely neutral about their merits. With regard to the third question, we summarize the approaches to entrapment in various jurisdictions, and we note some patterns, across the jurisdictions here surveyed, concerning shifts from one sort of entrapment remedy to another.

Under a ‘dirty hands’ model of undercover policing, it inevitably involves situations where whatever the state agent does is morally problematic. Christopher Nathan argues against this model. Nathan’s criticism of the model is predicated on the contention that it entails the view, which he considers objectionable, that morally wrongful acts are central to undercover policing. We address this criticism, and some other aspects of Nathan’s discussion of the ‘dirty hands’ model, specifically in relation to state entrapment to commit a crime. Using János Kis’s work on political morality, we explain three dilemmatic versions of the ‘dirty hands’ model. We show that, while two of these are inapplicable to state entrapment, the third has better prospects. We then pursue our main aim, which is to argue that, since the third model precludes Nathan’s criticism, a viable ‘dirty hands’ model of state entrapment remains an open possibility. Finally, we generalize this result, showing that the case of state entrapment is not special: the result holds good for policing practices more generally, including such routine practices as arrest, detention, and restraint.

We address the ethics of scenarios in which one party entraps, intentionally tempts or intentionally tests the virtue of another. We classify, in a new manner, three distinct types of acts that are of concern, namely acts of entrapment, of intentional temptation and of virtue testing. Our classification is, for each kind of scenario, of itself neutral concerning the question whether the agent acts permissibly. We explain why acts of entrapment are more ethically objectionable than like acts of intentional temptation and why these, in turn, are more ethically objectionable than like acts of virtue testing. Along the way, we scrutinize, and eventually reject, the view that acts of entrapment are ethically unacceptable because intentional temptation is involved in entrapment.

Kit Fine has proposed a new solution to what he calls ‘a familiar puzzle’ concerning modality and existence. The puzzle concerns the argument from the alleged truths ‘It is necessary that Socrates is a man’ and ‘It is possible that Socrates does not exist’ to the apparent falsehood ‘It is possible that Socrates is a man and does not exist’. We discuss in detail Fine’s setting up of the ‘puzzle’ and his rejection, with which we concur, of two mooted solutions to it. (One of these uses standard, Kripkean, notions, and the other rests on work done by Arthur Prior.) We set out, and reject, the philosophy of modality underlying Fine’s new solution, and we defend an alternative response to the alleged puzzle. Our solution follows the work of David Wiggins in distinguishing between the sentential operator ‘It is necessary that’ and the predicate modifier ‘necessarily’. We briefly provide this distinction with a possible- world semantics on which it is neither a necessary truth, in some sense, that Socrates exists nor true, in some sense, that Socrates necessarily exists.

Some legal theorists say that legal entrapment to commit a crime is incoherent. So far, there is no satisfactorily precise statement of this objection in the literature: it is obscure even as to the type of incoherence that is purportedly involved. (Perhaps consequently, substantial assessment of the objection is also absent.) We aim to provide a new statement of the objection that is more precise and more rigorous than its predecessors. We argue that the best form of the objection asserts that, in attempting to entrap, law-enforcement agents lapse into a form of practical incoherence that involves the attempt simultaneously to pursue contrary ends. We then argue that the objection, in this form, encompasses all cases of legal entrapment only if it is supplemented by appeal to the premise that law-enforcement agents have an absolute duty never to create crimes.

We characterize, more precisely than before, what Rawls calls the “analytical” method of drawing up a list of basic liberties. This method employs one or more general conditions that, under any just social order whatever, putative entitlements must meet for them to be among the basic liberties encompassed, within some just social order, by Rawls’s first principle of justice (i.e., the liberty principle). We argue that the general conditions that feature in Rawls’s own account of the analytical method, which employ the notion of necessity, are too stringent. They ultimately fail to deliver as basic certain particular liberties that should be encompassed within any fully adequate scheme of liberties. To address this under-generation problem, we provide an amended general condition. This replaces Rawls’s necessity condition with a probabilistic condition and it appeals to the standard liberal prohibition on arbitrary coercion by the state. We defend our new approach both as apt to feature in applications of the analytical method and as adequately grounded in justice as fairness as Rawls articulates the theory’s fundamental ideas.

Our question is this: What makes an act one of entrapment? We make a standard distinction between legal entrapment, which is carried out by parties acting in their capacities as (or as deputies of) law- enforcement agents, and civil entrapment, which is not. We aim to provide a definition of entrapment that covers both and which, for reasons we explain, does not settle questions of permissibility and culpability. We explain, compare, and contrast two existing definitions of legal entrapment to commit a crime that possess this neutrality. We point out some problems with the extensional correctness of these definitions and propose a new definition that resolves these problems. We then extend our definition to provide a more general definition of entrapment, encompassing both civil and legal cases. Our definition is, we believe, closer to being extensionally correct and will, we hope, provide a clearer basis for future discussions about the ethics of entrapment than do the definitions upon which it improves.

The article responds to previous work, by Martin O’Neill, about the Rawlsian case for an entitlement to an element of workplace democracy. Of the three arguments for such an entitlement that O’Neill discusses, this article focuses mainly on the one he rejects (on the grounds of its having an implausible premise): the Fundamental Liberties Argument, according to which the right to an element of workplace democracy is a basic liberty. This article argues that while the argument can be improved to withstand O’Neill’s objection, it is invalid. The article sets out a new argument, the Argument from Risk to the Moral Powers. While inspired by the Fundamental Liberties Argument, it is valid. Moreover, its premises are at least as plausible as those of one of the two arguments upon which O’Neill builds his Rawlsian case for an entitlement to an element of workplace democracy.

To reconcile true claims of de re necessity with the supposedly contingent existence of the concrete objects those claims are typically about, Kripkean essentialists invoke weak necessity. The claim that a is necessarily F is held to be equivalent to the claim that necessarily, if a exists then a is F. This strategy faces a barrage of serious objections a proper subset of which shows that the strategy fails to achieve its intended purpose. Relief can be provided via recourse to a markedly non-Kripkean version of essentialism.1.

In recent analytic metaphysics, the view that ‘ordinary inanimate objects such as sticks and stones, tables and chairs, simply do not exist’ has been defended by some noteworthy writers. Thomasson opposes such revisionary ontology in favour of an ontology that is conservative with respect to common sense. The book is written in a straightforward, methodical and down-to-earth style. It is also relatively non-specialized, enabling the author and her readers to approach problems that are often dealt with in isolation in a more unified way.Thomasson's arguments are mainly counter-attacks on six ‘eliminativist’ arguments against ordinary objects. A causal redundancy argument espoused by Trenton Merricks holds that to suppose that there are ordinary objects is to suppose that these objects have distinctive causal powers. However, the casual efficacy of a baseball, for example, is exhausted by that of some suitably arranged …

Modality and Anti-Metaphysics critically examines the most prominent approaches to modality among analytic philosophers in the twentieth century, including essentialism. Defending both the project of metaphysics and the essentialist position that metaphysical modality is conceptually and ontologically primitive, Stephen McLeod argues that the logical positivists did not succeed in banishing metaphysical modality from their own theoretical apparatus and he offers an original defence of metaphysics against their advocacy of its elimination. Seeking to assuage the sceptical worries which underlie modal anti-realism, McLeod provides an original contribution to essentialist epistemology, engaging with current debates about modality and suggesting that standard essentialist approaches to some issues in the philosophies of logic and language require revision. This book offers valuable insights to professional philosophers, postgraduates and advanced undergraduates interested in metaphysics, philosophy of logic or the history of twentieth-century analytic philosophy.

Instrumentalists about need believe that all needs are instrumental, i.e., ontologically dependent upon ends, goals or purposes. Absolutists view some needs as non-instrumental. The aims of this article are: clearly to characterize the instrumentalism/absolutism debate that is of concern (mainly §1); to establish that both positions have recent and current adherents (mainly §1); to bring what is, in comparison with prior literature, a relatively high level of precision to the debate, employing some hitherto neglected, but important, insights (passim); to show, on grounds not previously to the fore in the literature, that insofar as instrumentalism’s advocates have provided arguments for the position, these are unsound (§2); to argue against instrumentalism using a new dilemma concerning whether ‘end’, ‘goal’ and ‘purpose’ are interpreted in a mentalistic manner (§3); to elucidate the implications of the needs/need-satisfiers and preconditions/means distinctions for the debate (§4).

Benjamin Schnieder has argued that several traditional definitions of truth-functionality fail to capture a central intuition informal characterizations of the notion often capture. The intuition is that the truth-value of a sentence that employs a truth-functional operator depends upon the truth-values of the sentences upon which the operator operates. Schnieder proposes an alternative definition of truth-functionality that is designed to accommodate this intuition. We argue that one traditional definition of ‘truth-functionality’ is immune from the counterexamples that Schnieder proposes and is preferable to Schnieder’s alternative.

I set up a dilemma, concerning metaphysical modality de re, for the essentialist opponent of a ‘two senses’ view of necessity. I focus specifically on Frank Jackson's two-dimensional account in his From Metaphysics to Ethics (Oxford: Oxford University Press, 1998). I set out the background to Jackson's conception of conceptual analysis and his rejection of a two senses view. I proceed to outline two purportedly objective (as opposed to epistemic) differences between metaphysical and logical necessity. I conclude that since one of these differences must hold and since each requires the adoption of a two senses view of necessity, essentialism is not consistent with the rejection of a two senses view.

By the lights of a central logical positivist thesis in modal epistemology, for every necessary truth that we know, we know it a priori and for every contingent truth that we know, we know it a posteriori. Kripke attacks on both flanks, arguing that we know necessary a posteriori truths and that we probably know contingent a priori truths. In a reflection of Kripke's confidence in his own arguments, the first of these Kripkean claims is far more widely accepted than the second. Contrary to received opinion, the paper argues, the considerations Kripke adduces concerning truths purported to be necessary a posteriori do not disprove the logical positivist thesis that necessary truth and a priori truth are co-extensive

Absolute needs (as against instrumental needs) are independent of the ends, goals and purposes of personal agents. Against the view that the only needs are instrumental needs, David Wiggins and Garrett Thomson have defended absolute needs on the grounds that the verb ‘need’ has instrumental and absolute senses. While remaining neutral about it, this article does not adopt that approach. Instead, it suggests that there are absolute biological needs. The absolute nature of these needs is defended by appeal to: their objectivity (as against mind-dependence); the universality of the phenomenon of needing across the plant and animal kingdoms; the impossibility that biological needs depend wholly upon the exercise of the abilities characteristic of personal agency; the contention that the possession of biological needs is prior to the possession of the abilities characteristic of personal agency. Finally, three philosophical usages of ‘normative’ are distinguished. On two of these, to describe a phenomenon or claim as ‘normative’ is to describe it as value-dependent. A description of a phenomenon or claim as ‘normative’ in the third sense does not entail such value-dependency, though it leaves open the possibility that value depends upon the phenomenon or upon the truth of the claim. It is argued that while survival needs (or claims about them) may well be normative in this third sense, they are normative in neither of the first two. Thus, the idea of absolute need is not inherently normative in either of the first two senses