Claire Oakes Finkelstein

Pragmatic Rationality and Risk

Pragmatic theories focus on whether agents fare better acting on the basis of a particular intention or plan, rather than whether this can be justified in terms of the expected utility associated with the plan. This article argues that, while attractive, pragmatic theories have difficulty vindicating the rationality of plans involving an element of risk. In “Assure and Threaten,” David Gauthier noticed this difficulty with respect to deterrent threats. This article argues that the same difficulty exists for assurances involving an element of risk. It then explores whether Pragmatists could solve the shortcomings of their approach by adopting the Chance Benefit Thesis, namely, the thesis that a chance of benefit is itself a benefit.

Death and retribution

I Introduction It is often supposed that a theory of punishment predicated on desert lends support to the death penalty. What leads to this assumption is a prior thought about the appropriate punishment for murder: If we are to punish murderers as they deserve, we will inflict on them what they inflicted on their victims, namely death. This association between a desert-based theory of punishment, known as retributivism, and the death penalty appears not only in academic writings on the subject, but in popular views of punishment as well. Public rhetoric in support of the death penalty, for example, is nearly always retributivist. Politicians urging its use in a particular case will more readily speak of justice and desert than of future dangerousness or setting an example for others. They evidently think the retributivist argument for death more appealing than the utilitarian arguments that might be made in its favor. In my view, however, the faith that death penalty proponents place in the retributivist theory of punishment is misplaced. In this essay I argue that retributivism fails to justify the use of death as punishment, and, moreover, that a desert-based theory of punishment is particularly ill-suited to such a task. I shall not argue against retributivism as a theory of punishment per se. Although there may be reasons of a more general nature to reject retributivism, I will not attempt to make the more general case here. My more limited suggestion is that even if retributivism succeeds in justifying the practice of punishment overall, it cannot provide a compelling reason for including the penalty of death in that practice. The present essay constitutes one piece of a more general argument against the death penalty. If I am correct that capital punishment cannot be justified on retributivist grounds, the death penalty proponent would need to find a different basis on which to argue his case. The most promising alternative line of argument appears to be general deterrence: The death penalty is justified against this murderer, he will have to argue, in order to deter other people who might murder in the future. But as I argue elsewhere, even if we grant the questionable empirical assumption that the death penalty really does deter, it is extremely difficult to justify the death penalty on the basis of deterrence alone. (1) If I am correct that retributivism does not lend support to the death penalty, the death penalty proponent will find it substantially more difficult to argue the merits of that form of punishment, for he is unlikely to find support for his position elsewhere in political philosophy. The implications of this larger claim for the death penalty are worth spelling out. If the death penalty cannot be affirmatively justified, it cannot be permissibly imposed. Why? More specifically, why not simply be agnostic about its moral permissibility, and allow practical considerations to determine whether we should employ it? The answer has to do with a fundamental assumption about the nature of punishment, namely, that punishment is a harm or evil to the person on whom it is inflicted. (2) Although this assumption is a standard one in the literature on punishment, its implications have not been adequately noticed by legal philosophers and criminal law scholars. (3) If punishment, including the death penalty, is an evil that stands in need of justification, then the burden is on proponents of the death penalty to justify its use, otherwise the death penalty must be assumed to be impermissible. Thus this relatively uncontroversial assumption about the nature of punishment has powerful implications for a debate about the moral permissibility of the death penalty: the death penalty may not be permissibly imposed unless it can be affirmatively justified. It also follows that the death penalty opponent need not show that the death penalty is morally unacceptable to make his case. …

TWO MEN AND A PLANK

Can two individuals, each of whom needs a certain resource for his survival, have equal and conflicting rights to that resource? If so, is each entitled to try to exclude the other from its use? An old chestnut of moral and legal philosophy raises the problem. Following a shipwreck, two men converge simultaneously on a plank floating in the sea. There is no other plank available and no immediate hope of rescue. Unfortunately the plank can support only one; it sinks if two try to cling to it. Is it permissible for each to attempt to secure his own survival by pushing the other off the plank?

KILLING IN WAR AND THE MORAL EQUALITY THESIS

In his famous book Just and Unjust Wars , Michael Walzer articulates a thesis he calls the “Moral Equality of Soldiers,” namely, the principle that combatants have an equal right to kill other combatants in war, regardless of the justice of the cause for which they are fighting. The Moral Equality Thesis, as I shall call it, is an essential component of traditional Just War Theory, in that it provides the basis for distinguishing the jus in bello from the jus ad bellum . It also plays a crucial role in identifying the nature of the difference between combatants and civilians. The Moral Equality Thesis has recently come under attack by scholars of Just War Theory, notably philosopher Jeff McMahan, on the grounds that killing for immoral purposes cannot be justified, and so it cannot be true that combatants all have an equal right to kill, regardless of the justice of their cause. In this essay, I defend the Moral Equality Thesis in its traditional formulation. Without it, I argue, the rule of law would not apply in war. The failure to recognize the equal right of combatants to kill in war, I suggest, creates an inconsistency between the rules of war and basic concepts in the law and morality of self-defense, an inconsistency that McMahan himself would think undesirable. I argue that McMahan’s argument applies more compellingly to armed conflict in asymmetrical warfare. Arguably, the Moral Equality Thesis does not apply in an armed conflict between combatants and unlawful combatants. In that context, the divergence from the law and morality of self-defense is less of a concern.

Toward a Contractarian Theory of Law

For roughly three decades, legal scholarship has been dominated by the application of mainstream economic theory to law.1 The “law and economics” movement, as it is called, has had a substantial influence on nearly every domain of legal analysis. In addition to the financial subjects such as antitrust, bankruptcy, corporations, and tax law, economic analysis has become prevalent in basic fields such as contracts, torts, and property. It has even made inroads into subjects that have traditionally been noneconomic in nature, such as substantive criminal law.2

Mens rea and other criminal inefficiencies

t the heart of this wild and wooly excursus through tax-planning trategies, Jesuit practice manuals, geometric proofs, arctic exploration commentary, and a plethora of interesting philosophical and legal puzzles, there lies a deep truth about the criminal law: if our only criterion for assessing legal rules were the consequentialist exhortation to maximize welfare and minimize harm, the vast majority of substantive criminal law doctrines would remain mysterious, or at least somewhat puzzling. The point is clear with respect to blackmail. The blackmailer proposes to sell you his right to reveal your infidelities to your spouse. Like all voluntary exchanges, your purchase of the right would transfer it from a less to a more highly valued position, suggesting that the