Blacks, Cops, and the State of Nature

This essay offers a new way to conceptualize the “police violence against Blacks” phenomenon. I argue that we should see the situation as an instance of what Thomas Hobbes called the state of nature, that is, a state without effective law. This understanding of the phenomenon stands in sharp contrast to that offered by Professor Michelle Alexander in her book The New Jim Crow. Alexander sees the phenomenon as a continuation of centuries-old patterns of state-backed anti-Black racism. My account is that police are not under control of the state in their interactions with Blacks

Rorty’s Promise in Metaethics

Little attention is given to Richard Rorty’s metaethical views. No doubt this stems from the fact that most commentators are more interested in his metaphilosophical views; most see his metaethical views, offered in scattered passages, as just the downstream runoff from higher-level reflection. This article considers Rorty’s metaethics on their own merits, quite apart from whether his global picture works. I ultimately argue that Rorty’s metaethical outlook is attractive but beset by internal difficulties. Specifically, I contend that Rorty does not and cannot remain faithful to the methodological approach to metaethics for which he advocates. At the paper’s close, I gesture at a nearby methodological approach that best approximates Rorty’s metaethical methodology

The Nihilist

Scattered skeptical remarks and a general austerity that infused his writings have given Justice Oliver Wendell Holmes a reputation as some type of nihilist. Noted commentators such as Richard Posner and Albert Alschuler have claimed as much. This article seeks to correct this misunderstanding. Holmes was not a nihilist in the sense of being melancholy due to a belief that the world has no absolute moral values or gods. Instead, Holmes was a pragmatist in the spirit of William James and John Dewey. While Holmes had doubts about moral truth and deities, he ultimately thought that their existence (or non-existence) should have no bearing on our behavior or the law. We must, through our collective efforts, find values that work for us

Cruel and Unusual What? Toward a Unified Definition of Punishment

This Article argues for an expanded understanding of legal punishment for American courts to use. Punishment, on this new view, includes all significant harm caused by state actors’ retributive intent and most significant harm that befalls someone as a result of the state seeking retribution against her. What commends this new definition is not that it tracks lexicographers’ or metaphysicians’ understandings of punishment; rather, this new definition aims to track relevant moral and political considerations. Importantly, the proposed definition results from an attempt to reason from the perspective of someone harmed by state practices, as that perspective has greater moral import than perspectives of courts, lawmakers, or corrections officials

The Inherent Problem with Mass Incarceration

For more than a decade, activists, scholars, journalists, and politicians of various stripes have been discussing and decrying mass incarceration. This collection of voices has mostly focused on contingent features of the phenomenon. Critics mention racial disparities, poor prison conditions, and spiraling costs. Some critics have alleged broader problems: they have called for an end to all incarceration, even all punishment. Lost in this conversation is a focus on what is inherently wrong with mass incarceration specifically. This essay fills that void and supplies an answer, drawing on the early modern English philosopher Thomas Hobbes. On the Hobbesian account developed here, mass incarceration is always wrong because it is always inconsistent with having a free society

Fuller and the Folk: The Inner Morality of Law Revisited

The experimental turn in philosophy has reached several sub-fields including ethics, epistemology, and metaphysics. This paper is among the first to apply experimental techniques to questions in the philosophy of law. Specifically, we examine Lon Fuller's procedural natural law theory. Fuller famously claimed that legal systems necessarily observe eight principles he called "the inner morality of law." We evaluate Fuller's claim by surveying both ordinary people and legal experts about their intuitions about legal systems. We conclude that, at best, we should be skeptical of Fuller's inner morality of law in light of the experimental data