Polygamy and Same-Sex Marriage: A Response to Calhoun

Support for legalizing same-sex marriage can be achieved without supporting the case for polygamy. This article responds to Professor Calhoun by raising objections to Calhoun\u27s three main points. Polygamy does not strengthen the case for same-sex marriage because polygamy has not achieved any cultural significance equaling monogamy. Advocating the state to adopt a pluralistic, contractual approach to marriage overlooks the fact that the liberal state\u27s role is not only to enforce but also to regulate private contracts. Polygamy is structurally problematic because it exacerbates the crises marriages face. Because same-sex marriages do not suffer from the same structural problems polygamous marriages suffer from, the author concludes that arguments for same-sex marriage can be put forward without supporting polygamy

A Transcendental Argument for Liberalism

Liberalism is the view that the state should not, except on mutually justifiable grounds, coerce a society’s citizens to adopt, support, or follow some particular comprehensive conception of the good. So understood, a liberal state, by definition, permits each citizen a zone of freedom delimited by her own understanding of the ingredients of a happy life. Liberalism, as a normative theory governing state–citizen (and, indirectly, citizen–citizen) relations, is opposed by various forms of totalitarianism, including theocracy and communism. A theocratic state is one that imposes a particular religious form of life on its citizens, and thereby restricts their freedom to act in ways that the state considers heretical. A communist state is one that imposes a particular economic form of life on its citizens, and thereby restricts their freedom to engage in economic activity that the state considers exploitative or alienating

A Synthetic Approach to Legal Adjudication

Almost every interesting dispute that arises under the law is the product of disagreement among reasonable and competent speakers of the language of the relevant provision. If the meaning of the provision is not clear, then, even if the facts are fixed, how the judge should proceed is a matter of controversy. The Author offers three main suggestions

The Coherence of Orthodox Fourth Amendment Jurisprudence

In the legal academy it is widely believed that the U.S. Supreme Court\u27s orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan\u27s definition of a search as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth amendment rights may be excluded from any criminal case against her), while at the same time carving out numerous ill-defined and unprincipled exceptions to these general constraints. The purpose of this paper is to articulate a principled and textually supported rights-based theory of the fourth amendment that provides the best reconstruction of the Court’s orthodox opinions, and to argue that recent decisions (such as Houghton) indicating that the Court may abandon previous orthodoxy are fundamentally misguided

The Right to Privacy Unveiled

The purpose of this Article is to bring order to this theoretical chaos. In my view, none of these accounts of the right to privacy is accurate. As I will argue, we are better served by a completely different theoretical description of the relevant right. It is my hope that greater philosophical clarity in this area of ethics will lead to a more careful appreciation of the value of the right to privacy, as well as legislation and judicial reasoning that is more carefully crafted to protect against violations of the right. This Article is organized as follows: In Part II, I place the controversy over the nature of the right to privacy within the context of the Hohfeldian theory of rights developed by Thomson. In Part III, I describe some well-known paradigm cases in which the right to privacy is infringed, and explain how standard theories accommodate these examples. In Part IV, I consider counterexamples to the standard theories. In Part V, I return to Thomson\u27s seminal article, The Right to Privacy, for clues to the nature of the right to privacy. As I will argue, the examples Thomson uses in defense of reductionism (ironically) provide the inspiration for a novel nonreductionist account that is theoretically superior to the standard views. I call this account the Barrier Theory. I then conclude with a summary of the main points of the paper and a brief discussion of the possible ways in which the Barrier Theory might contribute to answering some pressing legal questions

Conscience or Disobedience? Comments on Dov Fox, “The Lopsided Law of Medical Conscience”

I am grateful to have been asked to comment on Dov Fox’s excellent and thought-provoking paper. Fox argues that “the conscience regime that governs American healthcare is broken.” By this, he means that whereas conscientious healthcare deniers are protected in various ways by state legal systems, conscientious healthcare providers are not similarly protected. This, argues Fox, is both morally unjust and legally indefensible. Instead, he claims, we should replace our tattered and unjust conscience regime with one that vindicates most forms of conscience, whether they involve denial or provision of healthcare, for those who invoke it in good faith, though this may sometimes require that conscientious providers pay to offset the harms of accommodation. The major restrictions on the invocation of conscience in the healthcare arena Fox accepts are: respect for informed consent, no discrimination on the basis of morally arbitrary characteristics, such as race, sex, and age, and no abandonment in emergencies

Paganism is Dead: Long Live Secularism

Samuel C. Rickless’s contribution to the 2019 Editors’ Symposium: Pagans and Christians in the City

The Nature of Self-Defense

What is self-defense? Most theorists of self-defense are mainly interested in explaining why and when we are morally justified in defending ourselves from a threat posed by another. The moral questions here are important, not just because self-defense represents an interesting moral conundrum, but because morality, at least in this case, is, or should be, a reliable guide to the law. So theorists of self-defense often start with paradigm cases—the culpable aggressor, the justified aggressor, the innocent aggressor, the innocent threat, and so on—and try to explain moral intuitions about them with the help of moral theory, whether Hohfeldian, utilitarian, Thomist, or other. Progress has been achieved in this way, but, like Uwe Steinhoff, I think it is worth asking the question of what, exactly, is supposed to count as self-defense

Locke's Diagnosis of Akrasia Revisited

Matthew Leisinger (2020) argues that previous interpretations of John Locke’s account of akrasia (or weakness of will) are mistaken and offers a new interpretation in their place. In this essay, we aim to recapitulate part of this debate, defend a previously articulated interpretation by responding to Leisinger’s criticisms of it, and explain why Leisinger’s own interpretation faces textual and philosophical problems that are serious enough to disqualify it as an accurate reconstruction of Locke’s views. In so doing, we aim to shed further light on Locke’s views on the various ways in which humans are prone to err in their pursuit of happiness

Locke on the Probability of the Mind's Immateriality

For many years, there has been a vibrant debate about whether Locke is friendly or hostile to the proposition that the mind is a material thing. On the one hand, there are passages in which Locke tells us that it is probable that the mind is immaterial. On the other hand, there are passages in which Locke expressly allows for the possibility that matter, suitably arranged, could be given the power to think. It is no surprise, then, that some scholars assume that Locke is a dualist, while other scholars think that Locke is a materialist. Yet others think that Locke studiously tries to remain completely agnostic about the nature of mind. Taking the relevant primary sources and secondary literature into account, I argue that Locke takes it to be more probable than not that the mind is immaterial