ABSTRACT“A legal system exists,” Joseph Raz claims, “if and only if it is in force.” By this he means to suggest that the efficacy of law—that is, its capacity to control the population to which it applies—is necessary for its identity as such. Despite widespread recognition that efficacy is a condition of the existence of law, however, little time has been spent analyzing the notion. This article begins an attempt to make up the deficit. I make the case for efficacy (...) as necessary for law and go on to develop and defend an account of the concept that is broadly Kelsenian in spirit. In doing so I address questions concerning the relationship between obedience and enforcement in an account of the existence of a legal system as well as relating the discussion to that concerning the ontological status of international law. (shrink)

This essay considers Brian Leiter’s arguments for ‘replacement naturalism’ in the domain of adjudication, his thesis being that we should reject as plausible the ‘normative theory of adjudication’ and replace it witha posterioritheory which best explains the causes of judicial decisions. My central claim is that his ‘naturalizing’ argument is incomplete in the following way: it is against a bad kind of philosophical theory and leaves scope for a better, non-naturalistic, account. Both Leiter’s original arguments for the position and his (...) more recent suggestions in response to critics are considered. (shrink)

This paper discusses some of the practical difficulties confronting Jeff McMahan’s proposal of a jus ad bellum court of experts for deciding the justice of war, and recommends two revisions. First, following the earlier proposals of Vitoria, Suarez, and Grotius, leaders could have a say in appointing judges to the ad bellum court; second, the court could be an organ of the International Criminal Court. Though significant practical challenges remain, these revisions make McMahan’s proposal fairer to democratic governments, and give (...) the court a better chance for successful implementation in the prevailing Westphalian system of state sovereignty. (shrink)

This book traces the history of college costs from the Colonial Era to the early years of the Cold War. The author examines the normalization of tuition, scholarships, and student loans.

Leslie Green is a leading figure in late twentieth and early twenty-first-century legal philosophy. He has made important contributions on topics as varied as legal positivism, political obligation, the limits of government, and the regulation of pornography. Green’s work is marked by its striking originality and approachability, as well as his willingness to see questions in the philosophy of law as integrated with wider questions of moral, political, and social philosophy. This is a collection of essays inspired by Green’s work. (...) It is a celebration of his scholarship and of his career, in which authors explore a range of problems in a new light, reflecting the wide variety of Green’s intellectual interests. The collection covers pressing questions in legal, moral, and political philosophy, including: What do oppressed citizens owe the state? Should law be used to improve sexual morality? How are legal decisions justified? The collection presents these issues as interacting and dynamic. Particular attention is paid to questions about the bearing of morality on law and law on morality, hence the title The Morality in Law, which is also the name of one of Green’s celebrated articles. (shrink)

Decisions are affected by the potential consequences as much as any factor during the decision-making process. This prospective influence represents another flaw overlooked by most experiments that raises questions about the use of certain laboratory paradigms. Lethal force encounters are a prime example of this problem, where negative consequences of slow decisions and wrong decisions should be considered alongside behavior.

In this review article I consider Kenneth Einar Himma’s argument that law is necessarily coercive. While casting doubt on Himma’s framing of the issues as well as on his specific claims in support of that conclusion, I suggest some alternate avenues for arguing that law is a coercive institution.

Anglo-American jurisprudence is often accused of being unhistorical. After examining some pressures that lead it to overestimate the significance of current ideas, the chapter considers what jurisprudence could learn from the past. Neither the past of law nor the past of legal philosophy present special ‘test cases’ for legal theory. On the other hand, the past of jurisprudence may be a resource for philosophical questions about law: (1) it may suggest solutions that have been missed or misunderstood, often by prompting (...) one to clarify or repair questions that have been handed down in bad or misleading form. This is solution-oriented jurisprudence. (2) But when one does engage with the past of jurisprudence, one encounters problems that do not respond to reasoning or repair: they are intractable. Here, in the realm of problem-oriented jurisprudence, one should trust the teachings of the problems over anyone’s supposed solution to them. The value in philosophical reflection on law lies not only in solutions to theoretical problems, but also in actual engagement with solutions proposed by past writers. For this reason, the work of jurisprudence will never be completed. (shrink)

Leslie Green has argued that law can be an efficacious and warranted means of improving social morality, bringing it better into line with critical (ie ideal or correct) morality. Social sexual morality is a key site, Green says, where the law can effect positive change. This chapter further takes up the question of when and how the law can legitimately use its power to improve social sexual morality. After specifying some candidates for improvement by law, the chapter contemplate one putatively (...) distinct reason for the law to prescind from interfering with sexual morality beyond strict limits, that having to do with the importance of authenticity and self-expression to the value of sexual intimacy. I argue that law is nonetheless justified in using its power to change sexual mores for the better, and that law’s interference might not impede, and can even enhance, sexual freedom and authenticity in certain respects. The last section of the chapter considers the use of law to improve consent communication norms in particular, through ‘affirmative consent’ rules. It highlights some difficulties with affirmative consent laws which depart from socially prevalent norms of consent communication. (shrink)

This chapter explores some of the possibilities for understanding law in moral terms. In making the strong claim that it is important to understand law as a moral enterprise, the chapter respects and accepts the positivist assertion that law’s validity has nothing to do with law’s merit or moral worth. However, it insists that neglecting the fact that law is a moral enterprise as well as a social practice is to fail to grasp one of the most important aspects of (...) understanding law and appreciating its dynamic character. Importantly, the chapter is not offered as a jurisprudential exercise in identifying analytical or necessary truths about that law’s inevitable moral purpose. The chapter, therefore, seeks to illuminate, not universalize, the idea of appreciating law as a moral enterprise. As such, the chapter is an exercise in pragmatic inquiry. (shrink)

Leslie Green raised an important challenge to the reconstruction of the American Legal Realist (ALR) arguments by Brian Leiter for the indeterminacy of law and legal reasoning: how can those arguments be limited, as Leiter claims, to mostly appellate cases? As Leiter argues in this chapter, the key is to recognize that (1) the central ALR argument for indeterminacy appeals to the existence of equally ‘legitimate’ but conflicting ways of interpreting valid sources of law and (2) the relevant notion of (...) ‘legitimacy’ is sociological (ie what is actually accepted by lawyers and judges). The ALR argument for indeterminacy being most apparent at the appellate level is then an empirical claim, which the ALRs supported with extensive evidence in many areas of law. The chapter also considers Green’s suggestion that ALR takes most sources to be ‘permissive sources’ (in Hart’s sense) and criticizes some misunderstandings of both ALR and Scandinavian Realism. (shrink)

This chapter explores the political obligations of oppressed citizens. Oppressed citizens typically are excluded from accounts of political obligation; indeed, it is assumed that oppressed citizens cannot owe political obligations. Among other things, this exclusion fails to recognize the political efforts of oppressed citizens sometimes as they do: as stemming from the political obligations they owe as members of a political community. The chapter first sketches an account of how oppressed citizens could be subject to political obligations, drawing on consent (...) and associative accounts of political obligation. It then illustrates how oppressed citizens can discharge their political obligations, focusing on resistance and refusal. By putting into conversation scholarship on political obligation with more recent discussions of oppression and resistance, the chapter has two principal aims: to counter the cursory attention paid to oppressed citizens by standard accounts of political obligation, and to show how the political activism of oppressed citizens, often treated as a function of their moral duties, can in fact stem from their political obligations. (shrink)

In a 2008 essay ‘On Being Tolerated’, Leslie Green offers us a powerful and compelling strategy for soothing the sting of toleration: attempting to understand the meaning that the tolerated attach to their tolerated conduct. But understanding can only partially soothe the sting of toleration. Drawing on Gandhian thought and practice, this chapter suggests how we might round out the sharp edges of toleration even further, by extending and tweaking Green’s strategy. The chapter calls for a more holistic understanding of (...) the tolerated that goes beyond understanding their tolerated conduct. The chapter expands on Green’s suggestion that toleration requires much more forbearance than is usually assumed, and calls for humility in dealing with the tolerated. Finally, to more fully soothe the sting of toleration, the chapter argues that we should advance from Green’s concern with fellowship to the ideal of fraternity. (shrink)

Some authors perceive a close connection between censorship and condemnation. They claim that censorship condemns the lifestyle from which the censored speech arises. Joseph Raz argues that condemnation is part of censorship’s social meaning. Ronald Dworkin argues that censorship is often, as best we can tell, motivated by condemnation. These connections between censorship and condemnation reinforce the case for a robust free speech principle. Why? Because if it’s wrong to condemn a good lifestyle, and if some harmful speech arises out (...) of good lifestyles, then there’s some harmful speech that it’s nevertheless wrong to censor. This chapter uses Leslie Green’s account of understanding—and of the relation between understanding and toleration—to challenge this reasoning. The chapter argues that the effort to understand a lifestyle can mitigate or nullify the condemnatory potential of censorship that restricts bad speech arising out of that lifestyle. (shrink)

This chapter, which spans the bridge between the personal and professional, the affective and the intellectual, reflects on the development of the field in which both Leslie Green and the author have worked since they met as graduate students in the late 1970s. Since then, the jurisprudential field has been enriched by a substantial engagement with several of the moral, political, and cultural issues with which they have both been concerned over the years. But what impact has this diversification of (...) jurisprudence had on what is regarded as the ‘core’ of the field? And why does dialogue across the diverse subfields of jurisprudence—notably between feminist legal theory and analytical jurisprudence—remain so fraught? The chapter addresses these questions, and makes the case for thinking that, pace Green, feminist legal theory raises key questions about the gender of legal concepts and legal methods, which belong at the core of general jurisprudence. (shrink)

This chapter argues that the notion of a ‘permissive’ source of law cannot be made sense of and should be discarded; and that the more general, metaphorical notion of a ‘source’ of law is not particularly valuable and might well be discarded too. Several authors suggest that the distinction between ‘permissive’ and ‘mandatory’ sources is purely deontic; that both are ‘sources’ of law in the same sense. This suggestion, this chapter argues, is untenable: the former must be ‘sources’ in a (...) different sense, one that refers to certain recognized ‘good reasons’ for decision rather than to ‘sources of law’ proper. They are not ‘permissive’ either, since, if they are (as is also often claimed) sources of practical reasons, they are not normatively inert and cannot be permissibly disregarded. In any event, the deontic contrast is ill-drawn, for there can be ‘source’-based reasons for decision that, while not (‘formal’) ‘sources’ of law, courts are legally bound to attend to, as well as (‘formal’) ‘sources’ that, though relevant and applicable, courts are not bound to apply. It is arbitrary, then, to isolate, conceptually, only putatively ‘permissive’ source-based reasons for decision; and arbitrary, too, to isolate any such ‘source’-based reasons from merit-based ones. So-called ‘permissive’ sources should instead be understood in terms of epistemic rather than practical reasons. As to the general notion of a ‘source’ of law, it is unhelpfully ambiguous: it has at least four candidate readings. The chapter ends, partly tongue-in-cheek, by offering a better metaphor for law: fashion design. (shrink)

This chapter explores the concept of government by drawing on the liberal tradition of limited government. In that tradition, moral autonomy and independence are situated as the source of limits on government justified on other grounds. An alternative relationship between government and moral autonomy and independence is examined here, one according to which such autonomy and independence lie at the very heart of the justification for government rather than limiting its activity. The task of government is thus conceived as enabling (...) moral autonomy and independence. One consequence of this way of understanding the justification for government is to deny that a government uncommitted to the liberal ideas of autonomy and independence counts as a government. Drawing on the example of Gilead in Margaret Atwood’s The Handmaid’s Tale, it is shown that the claim of the Commanders of Gilead to be a government fails: in indiscriminately violating moral autonomy and independence, those officers are tyrants, oppressors, dictators, autocrats—but they are no government. The chapter concludes by exploring how Leslie Green’s contributions to the understanding of government and governing were developed in conversation with one whose ideas on many matters were at a great distance from his own. Green’s example of honourable engagement is a reminder of how progress in jurisprudence is facilitated by seeking the truth in charitable collaboration with others. (shrink)

In The Authority of the State Leslie Green argues that political legitimacy is a property of the state, and that the state is legitimate when ‘all things considered, its rule is morally justified’. This chapter suggests an alternative analysis. Political legitimacy, it is argued, is a non-derivative property of governments, and only secondarily a property of states and of political decisions. When a government is legitimate this imposes on both subjects and outsiders a pro tanto duty not to overthrow or (...) undermine that regime for the sake of another, but it neither justifies the existence of the wider coercive structure within which that government operates—that is, the state—nor renders justified the exercise of power by it. Political legitimacy is in this sense a narrow idea, but it is nonetheless of fundamental importance to the political system. (shrink)

In a series of recent papers, Walter Sinnott-Armstrong has used findings in social psychology to put pressure on the claim that our moral beliefs can be non-inferentially justified. More specifically, he has suggested that insofar as our moral intuitions are subject to what psychologists call framing effects, this poses a real problem for moral intuitionism. In this paper, we are going to try to add more fuel to the empirical fire that Sinnott-Armstrong has placed under the feet of the intuitionist. (...) Along the way, we first provide an overview of what Sinnott-Armstrong calls the Master Argument against intuitionism. Then we examine some of the literature on framing effects—especially as it pertains to moral philosophy. Finally, we present the results of a new study which create yet another hurdle intuitionists must clear if they want to motivate their view. It appears that in addition to being influenced by framing effects, our moral intuitions are also influenced by an actor–observer bias as well—a bias whereby we hold other people to different moral standards than we would hold ourselves even if we were in the same situation. If we’re right, the burden is on the moral intuitionist to explain why we should have faith in our moral intuitions despite the gathering evidence concerning their seeming unreliability. And by our lights, this is something that simply cannot be done from the armchair. (shrink)

In the free will literature, some compatibilists and some incompatibilists claim that their views best capture ordinary intuitions concerning free will and moral responsibility. One goal of researchers working in the field of experimental philosophy has been to probe ordinary intuitions in a controlled and systematic way to help resolve these kinds of intuitional stalemates. We contribute to this debate by presenting new data about folk intuitions concerning freedom and responsibility that correct for some of the shortcomings of previous studies. (...) These studies also illustrate some problems that pertain to all of the studies that have been run thus far. (shrink)

“Supererogation” is now a technical term in philosophy for a range of ideas expressed by terms such as “good but not required,” “beyond the call of duty,” “praiseworthy but not obligatory,” and “good to do but not bad not to do” (see Duty and Obligation; Intrinsic Value). Examples often cited are extremely generous acts of charity, heroic self-sacrifice, extraordinary service to morally worthy causes, and sometimes forgiveness and minor favors. These concepts are familiar in institutional contexts, for example, when teachers (...) give points for “extra credit” work, corporations give “bonuses” for profitable leadership, and armies award medals for extraordinary service and valor. Moral philosophers, however, have generally focused on whether or not some of these terms refer to a fundamental moral category and, if so, how the category should be defined, which acts the category includes, and whether various moral theories adequately acknowledge it. The idea that acts can be good and praiseworthy but beyond duty has seemed puzzling for several reasons. For example, it seems that “good and praiseworthy” appeals to scalar standards of (“more or less”) value and virtue whereas “duty,” “required,” and “obligatory” invoke nonscalar norms that make (“all or nothing”) demands. This raises the theoretical question whether morality presupposes two distinct conceptual schemes, and, if so, to what extent and how these can be unified in a consistent and coherent moral theory. (shrink)

Immanuel Kant is known for his ideas about duty and morally worthy acts, but his conception of virtue is less familiar. Nevertheless Kant’s understanding of virtue is quite distinctive and has considerable merit compared to the most familiar conceptions. Kant also took moral education seriously, writing extensively on both the duty of adults to cultivate virtue and the empirical conditions to prepare children for this life-long responsibility. Our aim is, first, to explain Kant’s conception of virtue, second, to highlight some (...) distinctive and potentially appealing features of the Kantian account of virtue, third, to summarize and explain Kant’s prescriptions for educating young children and youth as well as the duty of moral self-improvement that he attributes to all adults, and, fourth, to respond to some common objections that we regard as misguided or insubstantial. (shrink)

Part of a special issue, Ontologies of Living Beings, guest-edited by A. M. Ferner and Thomas Pradeu.

A number of philosophers have recently become increasingly interested in the potential usefulness of fictitious and illusory beliefs.As a result, a wide variety of fictionalisms and illusionisms have sprung up in areas ranging anywhere from mathematics and modality to morality.1 In this paper, we focus on the view that Saul Smilansky has dubbed “free will illusionism”—for example, the purportedly descriptive claim that the majority of people have illusory beliefs concerning the existence of libertarian free will, coupled with the normative claim (...) that because dispelling these illusions would produce negative personal and societal consequences, those of us who are unfortunate enough to know the dangerous and gloomy truth about the nonexistence of libertarian free will should simply keep quiet in the name of the common good. (shrink)

Music teachers are often inclined to advocate the aesthetic value of music that is uncritically propagated by their conservatory training.1 Consequently, a host of misleading assumptions that music is a "fine" art that exists solely to promote aesthetic experience is simply taken for granted as the benefits of art and music education—thus ignoring the differences of purpose between school music and university-level training. Just offering routine musical activities and performances is thereby assumed to kindle students' aesthetic appreciation. Whether the experiences (...) provided have led to an enriched life of playing and enjoying... (shrink)

Africa's wildlife heritage is under siege--and its worst enemy may be traditional conservation methods. The authors tell of new conservation programs that include more Africans in the planning, execution, and financial benefits of this multi-billion dollar business.

Disabilities pose special problems that fortunately have been recognized (to some extent) in our public policies. Public policy is important, as are the deliberative frameworks that we use to justify them, and the original essays in the second and third sections of this volume have significant implications for public policy and offer new proposals for justifying frameworks. Underlying public policies and their assessment, however, are the attitudes, good and bad, that we bring to them, and our attitudes as well deeply (...) affect our interpersonal relationships. Although some excellent work in philosophy of disability has been done in this area of attitudes and relationships, more discussion is needed. The essays here, especially in the first section, reveal how complex and problematic our attitudes towards persons with disabilities are when we are in relationships with them as care-givers, friends, family members, or briefly encountered strangers. Our attitudes towards ourselves as persons with (or without) disabilities are implicated in these discussions as well. Among the highlights of this volume are its focus on moral attitudes and relationships involving disabilities and its contributors’ recognition of the multi-faceted nature of disability problems. The importance of respect for persons as a necessary complement to beneficence is an underlying theme, and a deeper understanding of respect is made possible by considering its implications for relationships with disabled people. Awareness of human vulnerabilities also makes clear the need for modifying traditional deliberative frameworks for assessing policies, and several essays make constructive proposals for the changes that are needed. (shrink)

Coral reefs have been challenged by the current rate and severity of environmental change that might outpace their ability to adapt and survive. Current research focuses on understanding how microbial communities and epigenetic changes separately affect phenotypes and gene expression of corals. Here, we provide the hypothesis that coral‐associated microorganisms may directly or indirectly affect the coral's phenotypic response through the modulation of its epigenome. Homologs of ankyrin‐repeat protein A and internalin B, which indirectly cause histone modifications in humans, as (...) well as Rv1988 histone methyltransferase, and the DNA methyltransferases Rv2966c, Mhy1, Mhy2, and Mhy3 found in coral‐associated bacteria indicate that there are potential host epigenome‐modifying proteins in the coral microbiome. With the ideas presented here, we suggest that microbiome manipulation may be a means to alter a coral's epigenome, which could aid the current efforts to protect coral reefs. Also see the video abstract here: https://youtu.be/CW9GbChjKM4. (shrink)