On Preferences and Promises: A Response to Harsanyi

John C. Harsanyi sketches an entire normative and metaethical theory in under twenty pages. Combining breadth and brevity, his essay is useful and interesting. It reveals the interrelations between Harsanyi\u27s positions on various issues as no longer work or series of articles could do. But by virtue of its programmatic nature, the essay creates a dilemma for a commentator, at least for one who finds many things to disagree with. If I responded to Harsanyi in the same sweeping terms in which he argues, we would end up with little more than opposing assertions. At the other extreme, I could point out what seem to me particular defects in Harsanyi\u27s arguments as they stand. But that would seem pedantic and ungenerous if my particular objections could be avoided by spelling out his arguments at greater length, as some of them surely could. (I am especially troubled by this possibility because I am persuaded that in the past I once misinterpreted an argument of Harsanyi\u27s and treated it unjustly.) Constraints of space prevent me from first spelling out Harsanyi\u27s arguments as best I can and then criticizing them. Accordingly, I shall limit myself to two topics, chosen partly because I think the observations I shall make are worth making whether or not they represent points of ineliminable disagreement between Harsanyi and myself

Rewriting Roe v. Wade

Roe v. Wade is one of the most controversial cases the Supreme Court has decided. The result in the case - the establishment of a constitutional right to abortion - was controversial enough. Beyond that, even people who approve of the result have been dissatisfied with the Court\u27s opinion. Others before me have attempted to explain how a better opinion could have been written. It seems to me, however, that the most promising argument in support of the result of Roe has not yet been made. This essay contains my suggestions for rewriting Roe v. Wad

A Gambling Paradox: Why an Origin-Neutral \u27Zero-Quota\u27 Is Not a Quota Under GATS Article XVI

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was in effect a zero-quota , and that such a zero-quota violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body\u27s effects test . This article argues that the Appellate Body\u27s in effect analysis is not an effects test and is not the real problem. The real mistake is regarding a so-called zero-quota as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word quota in such a context; it is at odds with the object and purpose of Article XVI; and it is likely to reduce Members\u27 willingness to make concessions

Measures with Multiple Purposes: Puzzles from EC-Seal Products

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles is unique to the Agreement on Technical Barriers to Trade (TBT); the second and third concern the TBT, the General Agreement on Tariffs and Trade (GATT), and probably other agreements

Gewirth on Necessary Goods: What Is the Agent Committed to Valuing?

In this chapter I shall be concerned with stage I of Gewirth\u27s argument, in which he argues that the agent must value her freedom and well-being as necessary goods. Stage I has attracted less criticism over the years than stages II and III, but even so, a good deal has been written about it. I do not claim to have found any brand new objection to Gewirth\u27s argument. The core of my objection occurred to me during my first reading of Reason and Morality, and it obviously occurred to a number of other people as well. 3 But it is clear that there is not yet universal agreement on the merits of Gewirth\u27s argument, and the argument is important enough so that it is worth trying to establish definitively whether or not it succeeds

What a Sensible Natural Lawyer and a Sensible Utilitarian Agree about and Disagree about: Comments on Finnis

Before I start, let me say two things. First of all, to the extent that John Finnis is entering a plea for more attention to what is a relatively neglected tradition (in the narrow his message a hundred percent. And you courd learning about the natural law tradition than by reading his book, Natural Law and Natural Rights. My second introductory observation is that Finnis and I agree about many more things than you might expect if you just think of him as a natural law theorist and me as a utilitarian. I am very eccentric as a utilitarian. He is, not eccentric, at least unusually advanced as a natural law theorist. actually agree about quite a lot (although of course we also disagree about some important things)

How to Be a Moorean

G. E. Moore’s position in the moral philosophy canon is paradoxical. On the one hand, he is widely regarded as the most influential moral philosopher of the twentieth century. On the other hand, his most characteristic doctrines are now more often ridiculed than defended or even discussed seriously. I shall discuss briefly a number of Moorean topics—the nonnaturalness of “good,” the open question argument, the relation of the right and the good, whether fundamental value is intrinsic, and the role of beauty—hoping to explain how a philosophically informed person could actually be a Moorean even today.

Against Evaluator Relativity: A Response to Sen

In a recent essay in this journal Amartya Sen introduced the notion of an evaluator-relative consequence-based morality. The basic idea can be described very simply. A consequence-based morality is a morality that instructs each agent to maximize some objective function defined over states of affairs. Such a morality is evaluator neutral if it assigns to every agent the same objective function. If different agents have different objective functions, then the morality is evaluator relative. For example, a morality would be evaluator relative if it assigned to Jones an objective function giving greater weight to the welfare of Jones\u27s children than Smith\u27s children, while it assigned to Smith an objective function giving greater weight to the welfare of Smith\u27s children than Jones\u27s. In more traditional language, a morality is consequence-based if it says that right acts are acts which have good consequences. A consequence-based morality is evaluator neutral if there is a universal good that all agents are required to promote; it is evaluator relative if different agents are assigned different goods. This brief description conceals some complications and possible sources of confusion, but it is not intended as a summary of or a replacement for Sen\u27s very illuminating general discussion of agent relativity. Sen has shown that evaluator relativity must always be accompanied by some other form of relativity, but my focus will be on evaluator relativity except where I advert specifically to another form

State Regulation of Commerce (Update)

In the period covered by this supplementary article, the Supreme Court has decided a case or two a year on state regulation of commerce. Considered individually, none of the cases through mid-1989 seems destined to become a landmark in DORMANT COMMERCE CLAUSE doctrin. Collectively, however, the cases may indicate a decreasing emphasis on balencing and an increasing focus on preventing states from intentionally discriminating against out-of-state interests

Glosses on Dworkin: Rights, Principles, and Policies

A great many people have attempted to explain what is wrong with the views of Ronald Dworkin. So many, indeed, that one who read only the critics might wonder why views so widely rejected have received so much attention. One reason is that, whatever may be wrong in Dworkin\u27s theories, there is a good deal that is right in them. But what is right is not always clear. Important passages in Dworkin can be distressingly obscure, or tantalizingly incomplete. This essay is a set of loosely connected observations on themes from Dworkin. While I shall add some criticisms of my own to the list of charges against Dworkin, my primary object is to defend and to amplify, clarifying here, filling in gaps there. I shall concentrate on what Dworkin has to say about the nature of rights, principles, and policies. I shall not address directly issues about the relation of law to morality. The omission just indicated makes it clear that I am not engaged in a comprehensive review of Dworkin\u27s position. It is in the nature of this essay to have no unifying theme. Various parts of the essay do, however, converge in supporting the following observation: Individuals, and relations between individuals, are squarely at the center of Dworkin\u27s picture of the common law. For the most part (not invariably) Dworkin seems to operate with a rather old-fashioned idea of the common law as a system based on fundamental moral principles, understandable by all, regulating intercourse between individuals and referring only incidentally to general social consequences. The centrality of the individual is revealed both in judgments about what are appropriate occasions for judicial intervention and in judgments about what reasons for decision it is appropriate for judges to consider. The suggestion that Dworkin tends to focus on individuals should not surprise anyone who has read his essays. What may be surprising is the number of Dworkin\u27s claims that turn out on analysis to reflect this tendency