Lesser-Evil Justifications: A Reply to Frowe

Sometimes one can prevent harm only by contravening rights. If the harm one can prevent is great enough, compared to the stringency of the opposing rights, then one has a lesser-evil justification to contravene the rights. Non-consequentialist orthodoxy holds that, most of the time, lesser-evil justifications add to agents’ permissible options without taking any away. Helen Frowe rejects this view. She claims that, almost always, agents must act on their lesser-evil justifications. Our primary task is to refute Frowe’s flagship argument. Secondarily, it is to sketch a positive case for nonconsequentialist orthodoxy.

     

Participation and Judicial Review: A Reply to Jeremy Waldron

This article challenges Jeremy Waldron'sarguments in favour of participatorymajoritarianism, and against constitutionaljudicial review. First, I consider andcritique Waldron's arguments againstinstrumentalist justifications of politicalauthority. My central claim is that althoughthe right to democratic participation isintrinsically valuable, it does not displacethe central importance of the `instrumentalcondition of good government': politicaldecision-making mechanisms should be chosen(primarily) on the basis of their conducivenessto good results.I then turn to an examination of Waldron'sclaim that individuals are entitled toparticipate in decisions which affect theirlives. Furthermore, I respond to his claimthat justifications of constitutional judicialreview rely on an objectionable distrust ofdemocratic politics, and is inconsistent with aview of the person as a morally responsible,autonomous agent. Finally, I seek to show thatjudicial review can itself become a valuablechannel of political participation, especiallyfor those who are marginalized and disempoweredin the normal political process.     

A Reply to Five Friends

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law (Schauer 2015 ) have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence.     

Defending the Semantic Interpretation: A Reply to Ferraro

In a recent article in this journal, Giuseppe Ferraro mounted a sustained attack on the semantic interpretation of the Madhyamaka doctrine of emptiness, an interpretation that has been championed by the authors. The present paper is their reply to that attack.     

A Political Theory of Blackmail: A Reply to Professor Dripps

This essay was originally presented at the Rutgers Institute for Law and Philosophy as part of the Symposium on The Evolution of Criminal Law Theory. It is a Reply to Professor Donald Dripps’ politically-based justification for blackmail’s prohibition. Under Dripps’ account, by exacting payment from the victim blackmail is an impermissible form of private punishment that usurps the state’s public monopoly on law enforcement. This essay demonstrates that Dripps’ account is either under-inclusive or over-inclusive or both. Dripps’ account is applied to a number of the standard blackmail scenarios by which theories of blackmail are typically assessed. Dripps’ account is under-inclusive by failing to treat as blackmail Victim-Welcomed Blackmail, Non-Monetary Blackmail, Rebuffed Blackmail, and Non-Informational Blackmail which the law considers as blackmail. And it is over-inclusive by treating as blackmail Victim-Initiated Exchange and Unconditional Disclosure which the law does not recognize as blackmail.