For many years, moral philosophers have been debating the conceptual and moral status of the distinction between intending harm and (merely) foreseeing harm. In this paper, after surveying some of the objections to the moral significance of this distinction in general, I focus on the special case of state action, arguing that whatever reasons we have to be suspicious about the distinction's moral significance in general, we have very good reasons to believe it lacks intrinsic moral significance when applied to state action. After arguing for this claim, I pursue in a preliminary way some of its implications.

Contemporary legal philosophers have focussed their attention on two aspects of the general theory of authority: the issue of legitimacy (or the right to govern) and the issue of obligation (or the duty to obey). In John Finnis's work we have a powerful statement of the importance of a third issue: the problem of governance (or the duty to govern). This paper explores the nature of this duty, its foundations, and its relation to the other aspects of a theory of authority.

Philosophers have been attracted by the theory that an agreement consists of undertakings by the parties. But the theory faces objections from three sides: unconditional undertakings by both parties are insufficient for an agreement; if the parties give interconditional undertakings, both comply if neither does anything; and, if one party gives an unconditional undertaking and the other a conditional one, a condition of interdependence is breached. The options are to live with the breach, to produce an undertaking-based theory that avoids the objections, or to analyze an agreement otherwise than in terms of undertakings. I consider each option and advocate the third: a better theory is that two people have an agreement where one makes an offer to the other that the other accepts.

This article engages with Jaffey's recent contribution on the nature of no-prior-duty remedial obligations. Jaffey's use of a right-liability relation and his challenge to Hohfeld's analytical scheme are rejected as unsound. An alternative model distinguishing three pathways to account for remedial obligations and other legal consequences is proposed. This draws on the Hohfeldian scheme but extends it to permit the full expression of reflexive liabilities, mutually correlative liabilities, and the operation of nonhuman conditions. The proposed approach also recognizes a weaker form of a Hohfeldian power, which is required in considering the way that the law deals with the allocation and realization of risk.

It is often claimed that John Finnis's natural law theory is detachable from the ultimate theistic explanation that he offers in the final chapter of Natural Law and Natural Rights. My aim in this paper is to think through the question of the detachability of Finnis's theistic explanation of the natural law from the remainder of his natural law view, both in Natural Law and Natural Rights and beyond. I argue that Finnis's theistic explanation of the natural law as actually presented can be, without too much strain, treated as largely detachable in the way that his readers have by and large supposed it to be; indeed, Finnis's account as actually presented really amounts to no explanation of the natural law at all, theistic or otherwise, and that fact accounts in part for the ease with which Finnis's natural law view can be detached from theism of that final chapter. Nevertheless, the considerations raised in that chapter militate in favor of a much more thoroughgoing, largely nondetachable theistic account. And it is just such an account that we find Finnis affirming in the development of his views after Natural Law and Natural Rights.

Justice, you might think, is the first virtue of the law. After all, we call our judges justices, the administration of law the administration of justice, and the government's legal department the Justice Department. We should reject this Priority of Justice for the Law in favor of the more moderate Priority of Justice for the Courts, the view that justice is the first virtue of the law courts. Under its comparative conception, justice is distinguishable by its concern with the relative positions of subjects. I claim that legal duties divide into primary and secondary, that primary legal duties are not essentially comparative, and that this impugns the Priority of Comparative Justice for the Law. Still, the bipolar structure of litigation appears to suggest that comparative justice is the first virtue of the courts. I explain why that is not so. I then introduce a desert-based conception of justice I dub requitative justice. I argue that the Priority of Justice for the Law cannot draw succor from this conception of justice because primary legal duties are no more requitative than they are comparative. However, the special affinity between law courts and secondary legal duties suggests that requitative justice is the first virtue of the courts. Finally, I concede that the Priority of Justice for the Courts gives us reason to accept the Priority of Justice for the Law after all, if we accept the common Priority of Courts for the Law, the view that the courts are the first institution of the law. We should not do so, however.

Many liberal societies are deeply committed to freedom of speech. This commitment is so entrenched that when it seems to come into conflict with other commitments (e.g., gender equality), it is often argued that the commitment to speech must trump the other commitments. In this paper, we argue that a proper understanding of our commitment to free speech requires being clear about what should count as speech for these purposes. On the approach we defend, “speech” should get a special, technical sense, different from its ordinary sense. We offer a partial characterization of this technical sense. Finally, we argue that if certain theorists (e.g., MacKinnon) are right about what (some) pornography does, then it should fall outside the scope of the free-speech principle. If so, then contrary to first appearances, pornography may not be a case in which our commitments to freedom and gender equality come into conflict.

In this essay I elaborate a particular, and particularly important, morality: the morality of human rights. Next, I ask the ground-of-normativity question (as I call it) about the morality of human rights and go on to elaborate a religious response. Then, after explaining why one might be skeptical that there is a plausible secular response to the ground-of-normativity question (i.e., to the question asked about the morality of human rights), I comment critically on John Finnis's secular response. Finally, I consider what difference it makes if there is no plausible secular response to the ground-of-normativity question.

Review of Foundations of Evidence Law, by Alex Stein (Oxford University Press, 2005)

Judges and lawyers believe that international law, customary law, and legal systems such as the Third Reich or apartheid law in South Africa are law. But how do we explain the fact that there is one concept of law when there are different conceptions of law with a variety of different features? Finnis, inspired by the Aristotelian notion of central case, adumbrates the idea that the concept of law might be unified by a primary concept which is the concept of “law as practical reason”; that is, law conceived from an ethical perspective. He advances two arguments to defend his methodology: the conceptual and the functional. Contra Finnis, the paper shows that neither the conceptual nor the functional argument can successfully support the view that “law as practical reason” is the central case of the concept of law. The study clarifies the Aristotelian notion of central case and illustrates the mistaken application of this notion to the concept of law. However, we also argue that Finnis's insight–the idea that all the different conceptions of law might be unified for the purposes of theoretical research–is fundamental and appealing. This paper aims to reconstruct Finnis's insight through the model of core resemblance. The result is that the different conceptions of law can be unified by resemblance to the concept of “law as practical reason,” though there is no identity among the different conceptions of law.

John Finnis's powerfully and deservedly influential modern classic, Natural Law and Natural Rights, expounds a theory of law and morality that is based on a picture of “persons” using practical reason to pursue certain “basic goods.” While devoting much attention to practical reason and to the goods, however, Finnis says little about the nature of personhood. This relative inattention to what “persons” are creates a risk—one that Finnis himself notices—of assuming or importing an inadequate anthropology. This essay suggests that the “new natural law” developed by Finnis suffers in places from the inadvertent adoption of (or, more likely, acquiescence in) a flawed anthropology—an anthropology under the thrall of modern individualistic commitments. To explain this suspicion, this article discusses three difficulties (or so they seem to me) in his natural law theory: difficulties in accounting for the basic good of friendship, for obligations we owe to others, and for legal authority. These difficulties may seem disconnected, but this article suggests that they may all reflect an inadequate anthropology—one that Finnis does not exactly embrace (in fact, I suspect that he would reject it) but that is pervasive today and that in places may affect his theorizing.

Linking theses of Plato, Wittgenstein, and Weber, section I argues that identification of central cases and settling of focal meanings depend upon the theorist's purpose(s) and, in the case of theory about human affairs—theory adequately attentive to the four irreducible orders in which human persons live and act—upon the purposes for which we intelligibly and intelligently act. Among these purposes, primacy (centrality) is to be accorded (by acknowledgement, not fiat) to purposes which are, as best the theorist can judge, reasonable and fit to be adopted by anyone, the theorist included. Section II defends the reasonableness (and hence entitlement to universal assent) of practical and moral judgments, against Michael Perry's ultimately nihilist claims that egoism's challenge to moral normativity has gone unanswered and that “reason for A” does not entail “reason for” anyone else. Section III takes up Steven Smith's suggestion that such subjectivism is encouraged by the talk in Natural Law and Natural Rights of “pursuing goods,” talk which (he argues) is individualistic and neglectful of (other) persons, inimical to an understanding of friendship, and impotent in the face of egoism. Here as elsewhere the key is to grasp that understanding any basic or intrinsic human good is to understand it as good for anyone like me and thus—since as I instantiate and embody a universal, viz. human being—as a good common to (good for) anyone and everyone. Section IV argues that common good (which includes respect for human rights, and the Rule of Law) gives reason for exercise and acceptance of authority, and for allegiance, even (and in a sense, especially) in time of breakdown. Section V argues that natural law theory is no more dependent on affirming God's existence than any other theory is, in any of the four orders of theory, but equally that is not safe for atheists. For, like any other sound theory, it suggests and is consistent with questions and answers about its grounds, in this case about the source of its normativity and of the human nature that its normative universals presuppose and affirm; and the answers are those argued for, too abstemiously, in the last chapter of NLNR and, more adequately, in the equivalent chapter of Aquinas.