I am a Fellow-in-Residence at the Edmond & Lily Safra Center for Ethics at Harvard University. Since 2015, I have been an assistant professor in the Legal Studies and Business Ethics Department at the Wharton School of the University of Pennsylvania.
My research tackles questions on the border between ethical theory and non-ideal political philosophy. In societies that are rife with economic injustice and at best imperfectly democratic, how do the injustices of the legal system affect people’s moral obligations? Part of the answer is that we should strive to change unjust laws, but this cannot be the whole answer. We face urgent ethical questions about how to treat each other under the laws we have. For example, if the legal system fails to ensure that all full-time workers can earn a decent living, may employers pay whatever wages the law and the market allow, or do some employers have a moral obligation to pay a living wage?
Frederick Schauer’s book The Force of Law defends a subtle position about the relationship betwee... more Frederick Schauer’s book The Force of Law defends a subtle position about the relationship between law and coercion. It concedes that it is conceptually possible for individual laws to lack coercive enforcement. A law can count as a real law, not merely as a public recommendation or exhortation, even if there is no penalty for violating it and even if the law is not coercively enforced in any other way. It is even conceptually possible for an entire legal system to lack a coercive enforcement mechanism. But these possibilities have limited practical or theoretical significance, Schauer argues, because in many human societies, there are relatively few people whose behaviour non-coercive law would affect. Non-coercive law can significantly influence people’s conduct only if society includes many people who are inclined to do what the law says because of what it says, not because they fear governmental coercion and not because they recognise a law-independent moral requirement. Following HLA Hart, Schauer calls people who voluntarily turn to the law for guidance ‘puzzled men’. Schauer argues that the admittedly limited empirical evidence suggests that puzzled men are rare in most actual societies; there is no convincing evidence that puzzled people are common in Schauer’s own society, the United States. In his words, ‘There appears to be much assertion and little empirical support for the general proposition that so-called puzzled people exist in significant numbers in modern legal systems’ (94). Since in many societies, law must be coercive to affect people’s conduct significantly, it is appropriate for philosophers of law to think harder about its role. Schauer argues convincingly that a philosophical account of the relationship between law and coercion needs to consider empirical facts about human behaviour. If non-coercive law could not significantly influence human behaviour, then it would matter little for a theory of law as a human institution that a society of angels could have a non-coercive legal system. The book contributes valuable insights to the interpretation of the empirical evidence about people’s motivations for following the law. Schauer is admirably candid about evidence that runs contrary to his position – he admits, for instance, that there are cultural differences in attitudes about obedience to law – and his claims in assessing the evidence are carefully qualified. That said, the book’s conclusion about the existence of puzzled people, and thus about the possibility of effective non-coercive law in human societies, is unduly pessimistic. Indeed, Schauer’s own example of someone refraining
ABSTRACT:Does the content of a physically dangerous job affect the moral permissibility of hiring... more ABSTRACT:Does the content of a physically dangerous job affect the moral permissibility of hiring for that job? To what extent may employers consider costs in choosing workplace safety measures? Drawing on Kantian ethical theory, this article defends two strong ethical standards of workplace safety. First, the content of a hazardous job does indeed affect the moral permissibility of offering it. Unless employees need hazard pay to meet basic needs, it is permissible to offer a dangerous job only if prospective employees have a reason other than hazard pay to choose this job instead of safer alternatives. Second, employers typically cannot justify omitting expensive safety measures by paying employees more, even if employees prefer higher pay to greater safety. Employers offering dangerous jobs must meet these two standards to avoid treating their employees merely as means.
It is widely agreed that medical researchers who conduct studies in low- and middle-income countr... more It is widely agreed that medical researchers who conduct studies in low- and middle-income countries (LMICs) are morally required to ensure that their research benefits the broader host community, not only the subjects. The justification for this moral requirement has not been adequately examined. Most attempts to justify this requirement focus on researchers' interaction with the community as a whole, not on their relationship with their subjects. This paper argues that in some cases, research must benefit the broader host community for researchers to treat subjects and prospective subjects ethically. If research presents substantial net risks to subjects, researchers can ethically ask LMIC citizens to participate only if people in LMICs, normally including people in the host community, stand to benefit.
It is widely agreed that foreign sponsors of research in low- and middle-income countries (LMICs)... more It is widely agreed that foreign sponsors of research in low- and middle-income countries (LMICs) are morally required to ensure that their research benefits the broader host community. There is no agreement, however, about how much benefit or what type of benefit research sponsors must provide, nor is there agreement about what group of people is entitled to benefit. To settle these questions, it is necessary to examine why research sponsors have an obligation to benefit the broader host community, not only their subjects. Justifying this claim is not straightforward. There are three justifications for an obligation to benefit host communities that each apply to some research, but not to all. Each requires a different amount of benefit, and each requires benefit to be directed toward a different group. If research involves significant net risk to LMIC subjects, research must provide adequate benefit to people in LMICs to avoid an unjustified appeal to subjects' altruism. If research places significant burdens on public resources, research must provide fair compensation to the community whose public resources are burdened. If research is for profit, research sponsors must contribute adequately to the upkeep of public goods from which they benefit in order to avoid the wrong of free-riding, even if their use of these public goods is not burdensome.
One of the central controversies in normative business ethics is the question whether transaction... more One of the central controversies in normative business ethics is the question whether transactions and economic relationships can be wrongfully exploitative despite being mutually beneficial and consensual. This article argues that anyone who accepts a shareholder theory of business ethics should accept deontological constraints on mutually beneficial, consensual exploitation.
Considerations of autonomy and independence, properly understood, support strictly egalitarian pr... more Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do not affect their access to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would.
Recently, dramatic price increases by several pharmaceutical companies have provoked public outra... more Recently, dramatic price increases by several pharmaceutical companies have provoked public outrage. These scandals raise questions both about how pharmaceutical firms should be regulated and about how pharmaceutical executives ethically ought to make pricing decisions when drug prices are largely unregulated. Though there is an extensive literature on the regulatory question, the ethical question has been largely unexplored. This article defends a Kantian approach to the ethics of pharmaceutical pricing in an unregulated market. To the extent possible, pharmaceutical companies must price drugs so that those who genuinely need them can get them without financial ruin. This requirement is an ethical side constraint, like the moral prohibitions on deception and theft, that takes precedence over a business’s interest in maximizing profit. That said, the requirement’s application is sensitive to the need to recoup the costs of research and to produce a return that financially justifies the original investment. It may not be either feasible or desirable for government to attempt to enforce the ethical requirements concerning just pharmaceutical pricing. Either price regulation or subsidy could fulfill government’s obligation to protect patients from being objectionably vulnerable to pricing decisions by private companies.
There is far more justice that is not served than served in our criminal justice system. Well mor... more There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration of justice to respond to criminal wrongs. This Article introduces the idea of justice remainders, or the omission of the state's response to crime. Justice remainders include both justified and unjustified failures to punish the guilty. The total of all justice remainders is the sum of justice undone. It is argued that the moral indignation and outrage over many types of justice remainders are simply and remarkably missing. Our collective response to sexual assaults, the most underreported of all serious criminal offenses, reveals the importance of formal and informal recognition of victims, the community affected by the wrongdoing, and the state.
This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.
Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or ... more Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in non-ideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: (1) the parties’ dispute was in good faith, (2) the court’s resolution of the dispute is more impartial than either party’s own judgment, (3) the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and (4) the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness.
Many ethicists maintain that medical research on human subjects that presents no prospect of dire... more Many ethicists maintain that medical research on human subjects that presents no prospect of direct medical benefit must have a prospect of social benefit to be ethical. Payment is not the sort of benefit that justifies exposing subjects to risk. Alan Wertheimer has raised a serious challenge to this view, pointing out that in industry, social value is not considered necessary to make dangerous jobs ethical. This article argues that Wertheimer was correct to think that the ethics of hazard pay should be the same in medical research and in business. Nevertheless, a qualified social benefit requirement should apply in both fields. For a study or a job with significant net physical risk to be ethical, it must have social value beyond the satisfaction of ordinary preferences, including the preference for money.
The requirement derives from a non-absolutist version of the doctrine of double effect. If a risky study or a dangerous job has no distinctive social value, and hazard pay is subjects’ or workers’ only reason to undergo risks, the very fact that they undergo risk is intended as a means to a financial end. Inviting people to enroll in such a study or to take such a job wrongfully treats people as mere means. By contrast, if a study or a job has social value, people can participate with a primary end other than money, even if they accept compensation. Researchers or employers do not intend but merely foresee risks to subjects or workers.
Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly viola... more Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly violating regulations with the aim of rendering them dead letters. This article argues that in a democracy, regulatory entrepreneurship is a presumptively unethical business strategy. In all but the most corrupt political environments, businesses that seek to change their regulatory environment should do so through the democratic political process, and they should do so without using illegal business practices to build a political constituency. To show this, the article defends a qualified moral obligation for businesspeople to obey the law even in societies that fall short of ideal democracy and that are rife with economic injustice. Owners and managers of successful businesses have strong moral reasons to obey laws concerning resource allocation. Such laws include not only property law, but also tax laws, environmental regulations, and other laws that regulate businesses in competitive markets. The moral reasons to obey such laws apply even to laws that business leaders think unfair or inefficient, provided that the laws in question have reasonable, good faith defenders.
When a business has competitors that break a burdensome law, is it morally required to obey this ... more When a business has competitors that break a burdensome law, is it morally required to obey this law, or may it break the law to avoid an unfair competitive disadvantage? Though this ethical question is pervasive in the business world, many non-skeptical theories of the obligation to obey the law cannot give it a clear answer. A broadly Kantian account, by contrast, can explain why businesspeople ought to obey laws of a certain type even under competitive pressure, namely laws that play a direct role in defining rights to use physical or financial resources free from substantial interference. Businesspeople must obey these laws even at the cost of allowing their businesses to fail and even when the acts proscribed are mala prohibita. This argument for obeying the law in competitive contexts has limited scope. Considerations of fairness or self-preservation may justify violating laws of other types under competitive pressure.
Philosophical Foundations of the Nature of Law, eds. Wil Waluchow and Stefan Sciaraffa (Oxford University Press), 2013
The justification of the power to make law does not entail the existence of an entitlement to use... more The justification of the power to make law does not entail the existence of an entitlement to use or to threaten coercion. In a society of morally very good people, there can be a justified legal system in which no public agency or private party has any entitlement to enforce law coercively. In such a society, neither the need to address good-faith disagreement nor the need to provide a coercive assurance of people's rights would justify the risk to the innocent that coercive enforcement necessarily presents. In a society of flawed human beings, governments sometimes have an entitlement to coerce, but this entitlement may be more restrictive than is commonly supposed. A coercive response to free-riding is not always required to make laws morally binding. Depending on social circumstances, the need to address unjustified law-breaking may or may not warrant exposing the innocent to risk.
Rethinking Punishment in the Era of Mass Incarceration, ed. Chris W. Surprenant (Routledge)
Government’s use of imprisonment raises distinctive moral issues. Even if government has broad au... more Government’s use of imprisonment raises distinctive moral issues. Even if government has broad authority to make and to enforce law, government may not be entitled to use imprisonment as a punishment for all the criminal laws it is entitled to make. Indeed, there may be some serious crimes that it is wrong to punish with imprisonment, even if the conditions of imprisonment are humane and even if no adequate alternative punishments are available.
This paper defends a new argument for enabling citizen participation in government: individuals m... more This paper defends a new argument for enabling citizen participation in government: individuals must have genuine opportunities to try to change the law in order to be able to satisfy duties of conscience. Without such opportunities, citizens who regard systems of related laws as partially unjust face a moral dilemma. If they comply with these laws willingly without also trying to change them, they commit a pro tanto wrong by willingly participating in injustice . If they disobey, or if they obey only to avoid sanction, they respond inadequately to the morally important purposes that the laws advance despite their injustice. Government should help citizens avoid this dilemma. This argument bolsters the non-instrumentalist view that responsiveness in the political process is desirable even if it does not promote just legislative outcomes. It also helps to explain what governments owe to citizens with minority political views.
Though political philosophers often presuppose that coercive enforcement is fundamental to law, m... more Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant.
Frederick Schauer’s book The Force of Law defends a subtle position about the relationship betwee... more Frederick Schauer’s book The Force of Law defends a subtle position about the relationship between law and coercion. It concedes that it is conceptually possible for individual laws to lack coercive enforcement. A law can count as a real law, not merely as a public recommendation or exhortation, even if there is no penalty for violating it and even if the law is not coercively enforced in any other way. It is even conceptually possible for an entire legal system to lack a coercive enforcement mechanism. But these possibilities have limited practical or theoretical significance, Schauer argues, because in many human societies, there are relatively few people whose behaviour non-coercive law would affect. Non-coercive law can significantly influence people’s conduct only if society includes many people who are inclined to do what the law says because of what it says, not because they fear governmental coercion and not because they recognise a law-independent moral requirement. Following HLA Hart, Schauer calls people who voluntarily turn to the law for guidance ‘puzzled men’. Schauer argues that the admittedly limited empirical evidence suggests that puzzled men are rare in most actual societies; there is no convincing evidence that puzzled people are common in Schauer’s own society, the United States. In his words, ‘There appears to be much assertion and little empirical support for the general proposition that so-called puzzled people exist in significant numbers in modern legal systems’ (94). Since in many societies, law must be coercive to affect people’s conduct significantly, it is appropriate for philosophers of law to think harder about its role. Schauer argues convincingly that a philosophical account of the relationship between law and coercion needs to consider empirical facts about human behaviour. If non-coercive law could not significantly influence human behaviour, then it would matter little for a theory of law as a human institution that a society of angels could have a non-coercive legal system. The book contributes valuable insights to the interpretation of the empirical evidence about people’s motivations for following the law. Schauer is admirably candid about evidence that runs contrary to his position – he admits, for instance, that there are cultural differences in attitudes about obedience to law – and his claims in assessing the evidence are carefully qualified. That said, the book’s conclusion about the existence of puzzled people, and thus about the possibility of effective non-coercive law in human societies, is unduly pessimistic. Indeed, Schauer’s own example of someone refraining
ABSTRACT:Does the content of a physically dangerous job affect the moral permissibility of hiring... more ABSTRACT:Does the content of a physically dangerous job affect the moral permissibility of hiring for that job? To what extent may employers consider costs in choosing workplace safety measures? Drawing on Kantian ethical theory, this article defends two strong ethical standards of workplace safety. First, the content of a hazardous job does indeed affect the moral permissibility of offering it. Unless employees need hazard pay to meet basic needs, it is permissible to offer a dangerous job only if prospective employees have a reason other than hazard pay to choose this job instead of safer alternatives. Second, employers typically cannot justify omitting expensive safety measures by paying employees more, even if employees prefer higher pay to greater safety. Employers offering dangerous jobs must meet these two standards to avoid treating their employees merely as means.
It is widely agreed that medical researchers who conduct studies in low- and middle-income countr... more It is widely agreed that medical researchers who conduct studies in low- and middle-income countries (LMICs) are morally required to ensure that their research benefits the broader host community, not only the subjects. The justification for this moral requirement has not been adequately examined. Most attempts to justify this requirement focus on researchers' interaction with the community as a whole, not on their relationship with their subjects. This paper argues that in some cases, research must benefit the broader host community for researchers to treat subjects and prospective subjects ethically. If research presents substantial net risks to subjects, researchers can ethically ask LMIC citizens to participate only if people in LMICs, normally including people in the host community, stand to benefit.
It is widely agreed that foreign sponsors of research in low- and middle-income countries (LMICs)... more It is widely agreed that foreign sponsors of research in low- and middle-income countries (LMICs) are morally required to ensure that their research benefits the broader host community. There is no agreement, however, about how much benefit or what type of benefit research sponsors must provide, nor is there agreement about what group of people is entitled to benefit. To settle these questions, it is necessary to examine why research sponsors have an obligation to benefit the broader host community, not only their subjects. Justifying this claim is not straightforward. There are three justifications for an obligation to benefit host communities that each apply to some research, but not to all. Each requires a different amount of benefit, and each requires benefit to be directed toward a different group. If research involves significant net risk to LMIC subjects, research must provide adequate benefit to people in LMICs to avoid an unjustified appeal to subjects' altruism. If research places significant burdens on public resources, research must provide fair compensation to the community whose public resources are burdened. If research is for profit, research sponsors must contribute adequately to the upkeep of public goods from which they benefit in order to avoid the wrong of free-riding, even if their use of these public goods is not burdensome.
One of the central controversies in normative business ethics is the question whether transaction... more One of the central controversies in normative business ethics is the question whether transactions and economic relationships can be wrongfully exploitative despite being mutually beneficial and consensual. This article argues that anyone who accepts a shareholder theory of business ethics should accept deontological constraints on mutually beneficial, consensual exploitation.
Considerations of autonomy and independence, properly understood, support strictly egalitarian pr... more Considerations of autonomy and independence, properly understood, support strictly egalitarian provision of necessary medical treatment. If the financially better-off can purchase access to necessary medical treatments that the financially less well-off cannot purchase without help, then their discretionary power to give or to withhold monetary gifts indirectly gives them the power to make life-and-death or sickness-and-health decisions for others. To prevent private citizens from having this objectionable form of power, government must ensure that citizens’ finances do not affect their access to medical treatments that significantly prolong life, relieve suffering, or cure or mitigate disabilities. Government should ensure this even if doing so involves leveling down and even if it is unclear whether egalitarian provision of necessary treatment would provide better care to the poor than a less egalitarian health care system would.
Recently, dramatic price increases by several pharmaceutical companies have provoked public outra... more Recently, dramatic price increases by several pharmaceutical companies have provoked public outrage. These scandals raise questions both about how pharmaceutical firms should be regulated and about how pharmaceutical executives ethically ought to make pricing decisions when drug prices are largely unregulated. Though there is an extensive literature on the regulatory question, the ethical question has been largely unexplored. This article defends a Kantian approach to the ethics of pharmaceutical pricing in an unregulated market. To the extent possible, pharmaceutical companies must price drugs so that those who genuinely need them can get them without financial ruin. This requirement is an ethical side constraint, like the moral prohibitions on deception and theft, that takes precedence over a business’s interest in maximizing profit. That said, the requirement’s application is sensitive to the need to recoup the costs of research and to produce a return that financially justifies the original investment. It may not be either feasible or desirable for government to attempt to enforce the ethical requirements concerning just pharmaceutical pricing. Either price regulation or subsidy could fulfill government’s obligation to protect patients from being objectionably vulnerable to pricing decisions by private companies.
There is far more justice that is not served than served in our criminal justice system. Well mor... more There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, systemic, and societal factors constrain the administration of justice to respond to criminal wrongs. This Article introduces the idea of justice remainders, or the omission of the state's response to crime. Justice remainders include both justified and unjustified failures to punish the guilty. The total of all justice remainders is the sum of justice undone. It is argued that the moral indignation and outrage over many types of justice remainders are simply and remarkably missing. Our collective response to sexual assaults, the most underreported of all serious criminal offenses, reveals the importance of formal and informal recognition of victims, the community affected by the wrongdoing, and the state.
This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.
Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or ... more Many accounts of the moral duty to obey the law either restrict the duty to ideal democracies or leave the duty’s application to non-ideal societies unclear. This article presents and defends a partial account of the moral duty to obey the law in non-ideal societies, focusing on the duty to obey judicial orders. We need public judicial authority to prevent objectionable power relationships that can result from disputes about private agreements. The moral need to prevent power imbalances in private relationships grounds a qualified moral duty to obey judicial decisions. The parties to a dispute are morally required to comply with a judicial order in their dispute if all of the following conditions obtain: (1) the parties’ dispute was in good faith, (2) the court’s resolution of the dispute is more impartial than either party’s own judgment, (3) the order does not call for violation of important natural duties or important artificial duties that the duty-bearer incurred involuntarily, and (4) the primary aim of disobeying the court order would be to advance an ordinary, non-political project, not to call public attention to an injustice. The moral duty to obey judicial decisions can survive significant departures from ideal fairness.
Many ethicists maintain that medical research on human subjects that presents no prospect of dire... more Many ethicists maintain that medical research on human subjects that presents no prospect of direct medical benefit must have a prospect of social benefit to be ethical. Payment is not the sort of benefit that justifies exposing subjects to risk. Alan Wertheimer has raised a serious challenge to this view, pointing out that in industry, social value is not considered necessary to make dangerous jobs ethical. This article argues that Wertheimer was correct to think that the ethics of hazard pay should be the same in medical research and in business. Nevertheless, a qualified social benefit requirement should apply in both fields. For a study or a job with significant net physical risk to be ethical, it must have social value beyond the satisfaction of ordinary preferences, including the preference for money.
The requirement derives from a non-absolutist version of the doctrine of double effect. If a risky study or a dangerous job has no distinctive social value, and hazard pay is subjects’ or workers’ only reason to undergo risks, the very fact that they undergo risk is intended as a means to a financial end. Inviting people to enroll in such a study or to take such a job wrongfully treats people as mere means. By contrast, if a study or a job has social value, people can participate with a primary end other than money, even if they accept compensation. Researchers or employers do not intend but merely foresee risks to subjects or workers.
Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly viola... more Some sharing economy firms have adopted a strategy of “regulatory entrepreneurship,” openly violating regulations with the aim of rendering them dead letters. This article argues that in a democracy, regulatory entrepreneurship is a presumptively unethical business strategy. In all but the most corrupt political environments, businesses that seek to change their regulatory environment should do so through the democratic political process, and they should do so without using illegal business practices to build a political constituency. To show this, the article defends a qualified moral obligation for businesspeople to obey the law even in societies that fall short of ideal democracy and that are rife with economic injustice. Owners and managers of successful businesses have strong moral reasons to obey laws concerning resource allocation. Such laws include not only property law, but also tax laws, environmental regulations, and other laws that regulate businesses in competitive markets. The moral reasons to obey such laws apply even to laws that business leaders think unfair or inefficient, provided that the laws in question have reasonable, good faith defenders.
When a business has competitors that break a burdensome law, is it morally required to obey this ... more When a business has competitors that break a burdensome law, is it morally required to obey this law, or may it break the law to avoid an unfair competitive disadvantage? Though this ethical question is pervasive in the business world, many non-skeptical theories of the obligation to obey the law cannot give it a clear answer. A broadly Kantian account, by contrast, can explain why businesspeople ought to obey laws of a certain type even under competitive pressure, namely laws that play a direct role in defining rights to use physical or financial resources free from substantial interference. Businesspeople must obey these laws even at the cost of allowing their businesses to fail and even when the acts proscribed are mala prohibita. This argument for obeying the law in competitive contexts has limited scope. Considerations of fairness or self-preservation may justify violating laws of other types under competitive pressure.
Philosophical Foundations of the Nature of Law, eds. Wil Waluchow and Stefan Sciaraffa (Oxford University Press), 2013
The justification of the power to make law does not entail the existence of an entitlement to use... more The justification of the power to make law does not entail the existence of an entitlement to use or to threaten coercion. In a society of morally very good people, there can be a justified legal system in which no public agency or private party has any entitlement to enforce law coercively. In such a society, neither the need to address good-faith disagreement nor the need to provide a coercive assurance of people's rights would justify the risk to the innocent that coercive enforcement necessarily presents. In a society of flawed human beings, governments sometimes have an entitlement to coerce, but this entitlement may be more restrictive than is commonly supposed. A coercive response to free-riding is not always required to make laws morally binding. Depending on social circumstances, the need to address unjustified law-breaking may or may not warrant exposing the innocent to risk.
Rethinking Punishment in the Era of Mass Incarceration, ed. Chris W. Surprenant (Routledge)
Government’s use of imprisonment raises distinctive moral issues. Even if government has broad au... more Government’s use of imprisonment raises distinctive moral issues. Even if government has broad authority to make and to enforce law, government may not be entitled to use imprisonment as a punishment for all the criminal laws it is entitled to make. Indeed, there may be some serious crimes that it is wrong to punish with imprisonment, even if the conditions of imprisonment are humane and even if no adequate alternative punishments are available.
This paper defends a new argument for enabling citizen participation in government: individuals m... more This paper defends a new argument for enabling citizen participation in government: individuals must have genuine opportunities to try to change the law in order to be able to satisfy duties of conscience. Without such opportunities, citizens who regard systems of related laws as partially unjust face a moral dilemma. If they comply with these laws willingly without also trying to change them, they commit a pro tanto wrong by willingly participating in injustice . If they disobey, or if they obey only to avoid sanction, they respond inadequately to the morally important purposes that the laws advance despite their injustice. Government should help citizens avoid this dilemma. This argument bolsters the non-instrumentalist view that responsiveness in the political process is desirable even if it does not promote just legislative outcomes. It also helps to explain what governments owe to citizens with minority political views.
Though political philosophers often presuppose that coercive enforcement is fundamental to law, m... more Though political philosophers often presuppose that coercive enforcement is fundamental to law, many legal philosophers have doubted this. This article explores doubts of two types. Some legal philosophers argue that given an adequate account of coercion and coerciveness, the enforcement of law in actual legal systems will generally not count as coercive. Others accept that actual legal systems enforce many laws coercively, but they deny that law has a necessary connection with coercion. There can be individual laws that lack coercive sanctions, and it is at least conceptually possible for there to be a legal system that lacks coercive enforcement altogether. This article then examines why most political philosophers and some legal philosophers have been reluctant to treat the conceptual possibility of non-coercive law as significant.
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This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.
challenge to this view, pointing out that in industry, social value is not considered necessary to make dangerous jobs ethical. This article argues that Wertheimer was correct to think that the ethics of hazard pay should be the same in medical research and in business. Nevertheless, a qualified social benefit requirement should apply in both fields. For a study or a job with significant net physical risk to be ethical, it must have social value beyond the satisfaction of ordinary preferences, including the preference for money.
The requirement derives from a non-absolutist version of the doctrine of double effect. If a risky study or a dangerous job has no distinctive social value, and hazard pay is subjects’ or workers’ only reason to undergo risks, the very fact that they undergo risk is intended as a means to a financial end. Inviting people to enroll in such a study or to take such a job wrongfully treats people as mere means. By contrast, if a study or a job has social value, people can participate with a primary end other than money, even if they accept compensation. Researchers or employers do not intend but merely foresee risks to subjects or workers.
This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.
challenge to this view, pointing out that in industry, social value is not considered necessary to make dangerous jobs ethical. This article argues that Wertheimer was correct to think that the ethics of hazard pay should be the same in medical research and in business. Nevertheless, a qualified social benefit requirement should apply in both fields. For a study or a job with significant net physical risk to be ethical, it must have social value beyond the satisfaction of ordinary preferences, including the preference for money.
The requirement derives from a non-absolutist version of the doctrine of double effect. If a risky study or a dangerous job has no distinctive social value, and hazard pay is subjects’ or workers’ only reason to undergo risks, the very fact that they undergo risk is intended as a means to a financial end. Inviting people to enroll in such a study or to take such a job wrongfully treats people as mere means. By contrast, if a study or a job has social value, people can participate with a primary end other than money, even if they accept compensation. Researchers or employers do not intend but merely foresee risks to subjects or workers.