Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status – a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting distributive or retributive justice? While the relation between morality and law is a familiar topic, this specific question is typically not considered explicitly. Yet it seems to be controversial and each of the contrasting answers to this (...) question has some appeal. The article highlights and considers this question. it concludes that the answer is negative: there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law. (shrink)

According to an influential and intuitively appealing argument, morality is usually continuous, namely, a gradual change in one morally significant factor triggers a gradual change in another; the law should usually track morality; therefore, the law should often be continuous. This argument is illustrated by cases such as the following example: since the moral difference between a defensive action that is reasonable and one that is just short of being reasonable is small, the law should not impose a severe punishment (...) when the action is almost reasonable and no punishment at all when the action is reasonable. In this Article, I consider two doubts regarding this argument. First, the premise that morality is continuous in such cases is incompatible with the common view that the moral status of actions is not continuous since there is an important difference between actions that are permissible and actions that are wrong— even if this difference is due to a difference that is very small, such as the one between an action whose consequences are the best and an action whose consequences are just slightly less good. This view extends also to the overall moral status of agents given the common assumption that it depends on the moral status of their actions. This is an important challenge that the Continuity Argument should confront. However, I argue that the best account of morality is more scalar than the common view in these respects. Therefore, I conclude that the first premise of the Continuity Argument is correct in this regard, although it is based on a minority view. The second doubt concerns the scope of the second premise: since there are reasons both in favor and against legal continuity, and the applicability and force of these reasons depend not only on various moral propositions but also on contingent non-moral facts, we often lack the evidence to determine the degree to which the law, at a certain place and time, should be continuous, and specifically that it should often be continuous. (shrink)

Is there a reason to prevent deontological wrongdoing—an action that is wrong due to the violation of a decisive deontological constraint? This question is perplexing. On the one hand, the intuitive response seems to be positive, both when the question is considered in the abstract and when it is considered with regard to paradigmatic cases of deontological wrongdoing such as Bridge and Transplant. On the other hand, common theoretical accounts of deontological wrongdoing do not entail this answer, since not preventing (...) wrongdoing does not necessarily amount to doing harm or intending harm, for example. The puzzle is reinforced due to the fact that the intuitive response to other cases seems to be different, namely that there is no reason in favour of preventing deontological wrongdoing. This question is thus interesting in itself. It might also shed light on additional questions such as the “paradox of deontology” and the appropriate response to wrongful actions more generally. Yet, despite its importance, this question is typically overlooked. The paper explores this question. (shrink)

There is a controversy as to the moral status of an action in the face of uncertainty concerning a non-moral fact that is morally significant (according to an applicable moral standard): According to the objective conception, the right action is determined in light of the truth, namely the actual state of affairs (regarding the pertinent fact), whereas according to the subjective conception, the right action depends on the epistemic state of the agent, namely her (justified) belief (concerning the pertinent fact). (...) A similar debate concerns the law, with respect to uncertainty regarding a legally significant fact. In this paper, I argue that moral and legal normative concepts are ambiguous and include two aspects: The ideal aspect, which is concerned with the constitutive feature of the normative standard, and the pragmatic aspect, which determines the correct action under uncertainty . With regard to each aspect, a different conception is appropriate: The objective conception should govern the ideal aspect and the subjective conception the pragmatic aspect. And the relevant aspect (and therefore the appropriate conception) depends on the question under consideration regarding the pertinent normative standard: what is its constitutive feature or whether an action is right (according to the applicable normative standard) in the face of uncertainty. (shrink)

The article explores the interaction of two, potentially clashing, considerations, each reflecting a different conception of fairness concerning the resolution of interpersonal conflicts. According to the Equal Chance Principle, the harm for each person should be minimized in a significant and (roughly) equal degree; when this is impossible, each person should be accorded the highest possible equal chance to avoid the harm. According to the Importance Principle, the danger to the person who would otherwise suffer the more serious harm should (...) be prevented. (shrink)

According to a famous maxim, ignorance or mistake of law is no excuse. This maxim is supposed to represent both the standard and the proper rule of law. In fact, this maxim should be qualified in both respects: ignorance and mistake of law sometimes are, and (perhaps even more often) should be, excused. But this dual qualification only reinforces the fundamental and ubiquitous assumption which underlies the discussions of the subject, namely, that the only ground of exculpation relevant to ignorance (...) or mistake of law is excuse due to lack of (sufficient) culpability. The paper challenges this consensus. I argue that, according to the best conception of justification, ignorance and mistake, including ignorance and mistake of law, could be justified. Generally, ignorance and mistake are justified when based on a rational analysis of the information the agent has and should have. The conceptual possibility of justified ignorance or mistake is demonstrated mainly with respect to ignorance or mistake of law due to reliance on the guidance of public officials or private lawyers. (shrink)

Criminal prohibitions typically forbid harming people. Justificatory defenses, such as lesser evil, justifying necessity and justifying self-defense, provide exceptions to such prohibitions if certain conditions are met. One common condition is that the agent is not responsible for the conflict. The questions whether justificatory defenses should include such a condition, and if so what should be its content, are controversial. I argue that responsibility for a conflict counts against protecting the responsible person at the expense of a non-responsible or a (...) less-responsible person, but that this consideration is not necessarily decisive but rather might be outweighed by another consideration, for example, in favor of preventing the more serious harm. I conclude that responsibility for the conditions of justificatory defenses raises a unique question whose proper resolution should be based on the interaction of several general considerations. (shrink)

This is an introduction to the special issue on criminal law theory.

According to an appealing and common view, the moral status of an action – whether it is wrong, for example – is sometimes important in itself in terms of the moral status of other actions – especially those that respond to the original action. This view is especially influential with respect to the criminal law. It is accepted not only by legal moralists but also by adherents of the harm principle, for example. In this paper, I argue against this view. (...) The main arguments emphasize the distinctions between the moral status of actions, consequences, and agents. I argue that what matters, in terms of other actions, is not the moral status of the original action but rather other factors that may be confused with it, such as the moral status of its consequences – whether they are good or bad – and the moral status of the agent – whether she is praiseworthy or blameworthy. The intuitive appeal of the common view is, I argue, at least partly due to a conflation of these factors. Most importantly, once we recall the distinctions between these factors, we can see more clearly that this view lacks a compelling rationale. Or, at least, that it is based on assumptions that, first, are much more controversial than their conclusion, and, second, do not support every aspect of this view – and thus do not offer a unified foundation for this view. (shrink)

According to a common view, criminal law should be structured in a way that allocates the conditions of criminal liability to different types of legal rules, given the content of the condition and the nature of the rule. This view classifies some conditions as elements of offenses and others as (part of) justificatory defenses or of excusatory defenses. While this view is attractive, I argue that it should be rejected, since it is incompatible with two plausible propositions about legal rules. (...) The first is that foundational reasons are not concerned with the structure of the law as such. The second is that legal rules should be constructed in a way that reflects (the balance of) all the applicable reasons and not just some of them. (shrink)

In this paper, I distinguish between two types of normative accounts of discrimination – general and special – and argue for the former and against the latter. General accounts consider the moral status of discrimination in light of all of the reasons that apply to discrimination, and hold that these reasons are not unique to discrimination (for example, the reasons to bring about the greater benefit or prevent the greater burden, to give priority for people who are worse off, and (...) to give people what they morally deserve). In contrast, special accounts argue that discrimination is objectionable due to factors that are especially salient in the context of discrimination (examples are the "deliberative" freedom of people to decide how to live without considering facts such as their race or sex, the message conveyed by discriminatory actions in terms of the moral status of people, and the mental states that accompany discriminatory actions). I argue that general accounts are more plausible than special ones, as foundational accounts of discrimination that determine its overall moral status (both types of accounts appear to suggest such accounts). One argument is that special accounts that suggest conclusions regarding the overall moral status of discrimination without considering all of the pertinent factors, especially general ones, are implausible. Another argument is that special accounts that claim that the factors that they highlight are basic are misguided since these factors are morally significant only if, and to the degree to which, they are derived from general ones. (shrink)

A common concern regarding affirmative action is that it sanctions the selection of candidates whose qualifications are not the best overall and that this is inefficient or unjust or both. I argue that this concern is misguided, since there is no independent concern regarding qualifications with respect to the moral status of affirmative action. The only sense in which qualifications are not morally arbitrary—and the only sense in which there is a reason to select the most qualified candidate—is purely instrumental (...) to the promotion of moral values whose fundamental concern is not qualifications. (shrink)

Justificatory defenses apply to actions that are generally wrong and illegal—mainly since they harm people—when they are justified—usually since they prevent harm to others. A strict conception of justification limits justificatory defenses to actions that reflect all pertinent principles in the optimal manner. A more relaxed conception of justification applies to actions that do not reflect all pertinent principles optimally due to mistake but are not too far from this optimum. In the paper, I consider whether justificatory defenses should reflect (...) the strict conception of justification or a more relaxed conception of justification. This question is important since often the relevant actions are not strictly justified, while the alternative of an excuse is frequently irrelevant or does not provide an appropriate solution. Reflection on this question raises the following dilemma: On the one hand, the strict interpretation seems too harsh, especially with regard to legal liability. On the other hand, it is difficult to explain the basis for a more relaxed conception of justification. I conclude, first, that justification—and accordingly wrongfulness—is a matter of degree and that the strictly justified action is merely the peak of a continuum, and, second, that a practical reaction is in place only with regard to actions whose wrongness is above a minimal threshold. (shrink)

How should a democratic state fight terrorism? This is the question discussed by Michael Ignatieff in his latest book. Ignatieff explores several possible positions as a response to this question. The review considers the analysis of these positions.