Friedrich Hayek's Moral Science

Abstract. F. A. Hayek's defense and analysis of the liberal state built on rule of law is both a moral and a scientific enterprise. The author shows that Hayek favors rule of law because it seeks to protect moral agency. It is procedurally rather than morally restrictive because men cannot easily know moral truth. Markets are included in Hayek's analysis not because they produce wealth but because they promote moral agency.     

Attitudes,anger, and nullification instructions influence jurors’ verdicts in euthanasia cases

Courts have historically avoided informing jurors about their nullification power (i.e. the power to return a not-guilty verdict when their conscience demands it but the law directs otherwise), fearing that such knowledge would prompt disregard for the law and reliance on attitudes and emotions rather than evidence. We investigated jurors’ inclination to nullify the law in a morally ambiguous case of physician-assisted suicide, testing the impact of euthanasia attitudes on case judgments as well as moderators and mediators of that effect. Mock jurors with pro-euthanasia attitudes were overall less likely to vote guilty than anti-euthanasia jurors, especially when they were given jury instructions informing them of jurors’ power to nullify. Nullification instructions also exacerbated the effect of jurors’ attitudes on anger, disgust, and moral outrage toward the defendant – emotions that mediated the effect of attitudes on verdicts. We also tested the impact of incidentally induced anger on jurors’ reliance on their attitudes rather than the law, given anger’s propensity to increase certainty and heuristic processing. Anger enhanced mock jurors’ reliance on their attitudes under certain conditions. Theoretical and practical implications for understanding juror decision-making are discussed.     

Appropriately Using People Merely as a Means

There has been a great deal of philosophical discussion about using people, using people intentionally, using people as a means to some end, and using people merely (or just, or only) as a means to some end. In this paper, I defend the following claim about using people: NOT ALWAYS WRONG: using people—even merely as a means—is not always (prima facie or pro tanto or all-things-considered) morally objectionable. Having defended that claim, I suggest that the following claim is also correct: NO ONE FEATURE: when it is morally objectionable to use people (either as a means or merely as a means), this is for many different kinds of reasons—there is no one wrong-making feature that every morally objectionable using has in common. After discussing these claims, I use them to present and motivate what I call the “precaution” theory of norms against using people. I conclude by considering a few cases from the criminal law context—cases that are naturally described as using people—to assess the moral appropriateness of this kind of use in these cases, and to demonstrate how the theory applies to the real world.     

Soldiers as Public Officials: A Moral Justification for Combatant Immunity

How can we make moral sense of the international humanitarian law doctrine of combatant immunity? The doctrine is morally shocking to many: It holds soldiers on both sides of a war immune from criminal prosecution for their otherwise criminal acts of killing, maiming, destroying property, etc., carried out as part of their country's war effort. That is, soldiers who kill as part of an attack benefit from the immunity just as much as those defending their country. Traditionally, just war theorists have tried to provide situation‐specific arguments to show that soldiers on both sides had a good moral justification for their actions. Recently, self‐styled “revisionist just war theorists” have suggested that the doctrine of combatant immunity is just a convention designed to minimize harm. In this article, I suggest that the moral foundation of the doctrine lies in the status of soldiers as public officials in the service of their country. The reason why we hold them immune from prosecution for their war‐making acts is that such acts are properly thought of as acts of a state, rather than as acts of a particular individual. And the reason why states are immune from prosecution for their acts is one of moral standing: No other state has the moral standing to tell another how to carry out the matters that define its jurisdiction. So as long as a country deems (however implausibly) that it must use force to defend itself from aggression, then it may do what is required to defend itself. No other state has the standing to prohibit such acts or to punish those who carry them out. This argument is rooted in an understanding of how individuals may interact as free and equal under law. It does not aim at the perfection of human action, but it does serve to eliminate the worst forms of tyranny.     

Legal Knowledge about What?

We assume—in contrast to many "legal realists"—that law is a part of reality. Law exists because people believe in law, but law is not identical with beliefs. Law supervenes on human beliefs, preferences, actions, dispositions and artefacts. Moreover, the morally binding personal interpretation of the law supervenes on two things together: on the individual's knowledge of legal institutions and on moral obligation. The first supervenes in its turn on mutual beliefs; the second supervenes on motivations and dispositions of the individual, provided that she is morally sensitive and rational. Personal interpretation of law converts into social law, if other persons on the basis of overriding reasons do not contest it. Morally binding social law supervenes on moral motivation that is triggered by institutions that supervene on mutual beliefs.     

Can Tort Law Be Moral?

According to the established orthodoxy, the law of private wrongs—especially common law torts—fails to map onto our moral universe. Four objections in particular have caught the imagination of skeptics about the moral foundations of tort law: They purport to cast doubt over the moral appeal of the duty of care element; they target the seemingly inegalitarian objective standard of care; they object to the morally arbitrary elements of factual causation and harm; and they complain about the unnecessary extension of liability under the guise of the proximate cause element. Analyzing these four prevailing arguments concerning the a‐moral (and, with regard to some interpretations, anti‐moral) character of tort law, I shall seek to show that the normative structure of tort law can, nonetheless, be reconstructed so as to reflect, to an important extent, our considered judgments about basic moral principles.     

Policewomen in the 1950s

Attempts to prevent prenatal harm have led to a number of court cases resulting in interference with pregnant women. These include incarceration and the imposition of medical and surgical treatments thought to prevent prenatal harm. We argue that the legal sanctions that have been used and/or are proposed for use against pregnant women in order to prevent prenatal harm are (1) morally unjustified even where they might be legal, (2) are morally and legally unacceptable because they violate important moral values captured in our legal system, and (3) are morally unacceptable and would make bad law because they would contribute to the harm they would be instituted to prevent.     

Injustice in Robes: Iniquity and Judicial Accountability*

The paper addresses the question of judges' moral responsibility in an unjust society. How is the “moral” judge to reconcile his perception of justice with a malevolent law? Upon what grounds might judges, and perhaps other public officials, be held morally responsible for their acts or omissions? Does a positivist approach yield a more satisfactory resolution than a natural law or Dworkinian analysis? Could inclusive positivism offer any clues as to how this quandary might be judiciously resolved?     

Is a Refrigerator Good or Evil? The Moral Evaluation of Everyday Objects

Certain objects such as family heirlooms are often treated as if they have intrinsic moral qualities, including sacredness and infinite value. Other objects such as instruments of torture are often seen as inherently repellent. Do people also evaluate more mundane objects such as refrigerators as morally good or bad? Here we explore the nature and scope of moral object evaluation through two experiments that asked participants to rate how morally good or bad a large set of familiar objects were. We find that (a) everyday objects tend to be seen as morally positive and (b) unlike mere liking, the moral evaluation of objects is positively linked to the age and political conservatism of the participants. These findings are discussed in relation to research on automatic evaluation, mere exposure effects, and the relationship between affective states and moral judgments.     

Justice,Context, and Violence: Law Enforcement Officers on Why They Torture

How do police explain their support for torture? Findings from 12 months of fieldwork with police in India complicate previous researchers’ claims that violence workers tend to morally disengage and blame circumstances for their actions. The officers in this study engage in moral reflection on torture, drawing on their beliefs about human nature and justice to explain their support for it. They admit that they use torture more widely than their own conceptions of justice allow, but see this as an imperfect implementation of their principles rather than as a violation of them. Previous research on the spread of human rights norms has focused on how these norms can be adapted to the local beliefs that support them, rather than on understanding the beliefs that conflict with human rights. I argue that illuminating the self‐understanding of state actors who support or engage in torture is crucial to building theory on why such violence occurs, as well as to designing interventions to prevent it.     

The role of criminal record in the federal sentencing guidelines

In this paper my concern is with the collective moral responsibility of criminal investigators for the outcomes of their investigations, bearing in mind that it is important to distinguish collective moral responsibility from, and relate it to, individual moral responsibility. In what sense, if any, are police detectives individually and collectively morally responsible for their success (or, for that matter, their failure) in gathering sufficient evidence to identify, arrest, and charge an offender who has committed a serious crime? Alternatively, in what sense are they morally responsible in cases where they identify, arrest, and charge an innocent person? And in what sense, if any, are police detectives individually and collectively morally responsible for the ultimate outcome of the trial, the finding by the courts of someone they have investigated and charged with a serious crime to be guilty or innocent?     

Should the Law Convict Those Who Act from Conviction? Reflections on a Demands-of-Conscience Criminal Defense

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate.     

The Epistemological Moral Relevance of Democracy*

Abstract. The author deals with one aspect of the justification of governmental action and its product (the law). He focuses on the authoritative character of legal rule, analyzing the apparent capacity of governments to produce reasons for action not grounded on substantive moral considerations. The assumption of that capacity seems necessary in order to establish a general moral obligation to obey a government irrespective of the actions required. This question is faced in connection with the thesis that only a particular form of government, democracy, is morally justified insofar as it rests on legal rules issued by a legitimate source.     

Making Sense of Discrimination

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.     

Judicial Practical Reason: Judges in Morally Imperfect Legal Orders

I here address the question of how judges should decide questions before a court in morally imperfect legal systems. I characterize how moral considerations ought inform judicial reasoning given that the law may demand what it has no right to. Much of the large body of work on legal interpretation, with its focus on legal semantics and epistemology, does not adequately countenance the limited legitimacy of actual legal institutions to serve as a foundation for an ethics of adjudication. I offer an adjudicative theory in the realm of non-ideal theory: I adopt a view of law that has achieved consensus in legal philosophy, make some plausible assumptions about human politics, and then consider directly the question of how judges should reason. Ultimately, I argue that judges should be cognizant of the goods that are at stake on particular occasions of adjudication and that this requires treating legal requirements transparently, i.e., as sensitive to their moral justifications.     

Copyright in custom code: Who owns commissioned software?

Legal context: When software is commissioned, it is important that the partiesagree what rights are being acquired and what rights retained.Copyright is the most important such right, but moral rightsand database rights must also be considered. When there is noexplicit agreement on these rights, the courts are often facedwith claims that there is an implied term that they should vestin the client (or be waived in the case of moral rights). Thisarticle examines the issues that arise in such cases. Key points: The article outlines the development of case law dealing withimplied terms as to ownership of commissioned works. It explainshow the courts have applied older principles to the new areaof commissioned software, and how those principles have evolvedto make it more difficult for a client to establish an impliedterm in their favour. The article examines in particular issuesarising from code reuse, the disclosure of source code, andthe application of database rights and moral rights to software.It also considers case law where clients have claimed to bejoint authors of software by virtue of their involvement inits design and testing. Practical significance: There are an increasing number of cases where software is commissionedon an informal basis and disputes later arise as to the ownershipof that software. This article provides a framework for consideringsuch disputes.     

The Moral Justification for the Preventive Detention of Terrorists

The moral, as opposed to legal, justification for the preventive detention of terrorists is the topic of this article, and, in particular, for the preventive detention of members of extremist Islamist terrorist organizations, such as Islamic State (IS) and Al Qaeda (AQ). The article argues that preventive detention of terrorists is morally justified under certain circumstances. Its argument for preventive detention of terrorists is analogous to that used to detain enemy combatants as prisoners of war. However, rather than relying on the possession of the properties definitive of the legal status of a combatant, it relies on demonstrable possession of constitutive features of functionally integrated membership of a terrorist organization. Membership in this sense of a terrorist organization creates the presumption of a standing intention to commit murder, or at least to assist others to do so, in the service of the organization’s political ends.     

A Moral Equivalent of Consent of the Governed

Though genuine (voluntary, deliberate) consent of the governed does not occur in modern states, political legitimacy still requires something that does what consent does. Dereification of the state (recognizing that citizens continually create their state), combined with a defensible notion of moral responsibility, entails citizens' moral responsibility for their state. This implies that we may treat citizens morally as if they consented to their state, yielding a moral equivalent of consent of the governed, and a conception of political legitimacy applicable to modern states thought legitimate. It implies that legitimate states have a moral right to rule, and their citizens have a prima facie moral obligation to obey the law.