Donald H. Regan

The Value of Rational Nature

Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value. A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory. But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value of rational nature. My claim is rather that we cannot account for the value of rational nature if we conceive it as Kant does. Rational nature cannot be valuable in a Kantian world, where there are no self-subsistent principles about what are good states of affairs, or activities, or whatever, of the sort that a Moorean or a Platonist or a perfectionist believes in. My own views are generally Moorean, and I shall occasionally offer a Moorean perspective on the value of rational nature for comparative purposes, but my criticisms of the Kantian view could be made from an Aristotelian perspective as well, in which the agent pursues not the Good, but a good human life. My main object is not to develop any particular alternative to the Kantian view, but merely to show how unsatisfactory the Kantian view is when we look at it closely.

The meaning of ‘necessary’ in GATT Article XX and GATS Article XIV: the myth of cost–benefit balancing

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by cost–benefit balancing. And they have decided every case by reference to the ‘own level of protection’ principle. The Appellate Body is right not to balance. Balancing is not authorized by the treaty texts, and it is not needed to prevent inefficient harm to foreign interests.

Regulatory Purpose and “Like Products” in Article III:4 of the GATT (With Additional Remarks on Article III:2)

Prologue In EC – Asbestos the Appellate Body has told us that (1) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III:1 that measures should not be applied “so as to afford protection to domestic production” [hereafter just “so as to afford protection”]. In Chile – Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied “so as to afford protection,” we must consider “the purposes or objectives of a Members legislature and government as a whole” – in other words, the regulatory purpose of the measure. Chile – Alcohol was decided under Article III:2, but it involves the very same “so as to afford protection” that Asbestos says we look to in interpreting Article III:4. It follows from (1) and (2) that in interpreting Article III:4, we must consider the regulatory purpose of the measure under review. That is the doctrinal argument for the relevance of regulatory purpose under Article III:4. In the ten years since US – Malt Beverages, we have come full circle on this issue. Although I think the Appellate Body is now on the right track, their double volte-face on the relevance of purpose illustrates the instability of doctrine – and the Appellate Body has not yet explicitly drawn the conclusion that their holdings in Asbestos and Chile – Alcohol entail.

The Appellate Body's GSP decision

CHARNOVITZ: The Appellate Bodys decision in the Tariff Preferences case demonstrates the value of a second-level review of panel decisions. Notwithstanding the composition of the panel – which was as highly qualified, balanced, and diverse as any panel could possibly be – the panel issued a decision that met widespread disapproval. In what is probably a record for third-party support of the plaintiff, eight countries asked the Appellate Body to reverse key points. Happily, the Appellate Body did reverse many of the troubling holdings in the panel report. Unhappily for the world community, the Appellate Body did not have an opportunity to review the panels interpretation of GATT Article XX, which (like many previous panels) has chiseled away at vital exceptions.

Reasons, Authority, and the Meaning of 'Obey': Further Thoughts on Raz and Obedience to Law

I recently published a long article discussing a variety of topics from Joseph Raz’s The Morality of Freedom . The article was part of a symposium on Raz’s work in the Southern California Law Review . Raz responded to the articles in that symposium, including my own. From a perspective which surveys the whole range of views on political philosophy, Raz’s view and mine look very similar. Even so, we find many things to disagree about, which neither of us would regard as merely matters of detail. For the most part, we at least share a common understanding of our disagreements. But there is one set of issues we disagree about and where we seem to lack even a common understanding of the disagreement. These are issues about how authoritative directives function as reasons for action, and about whether, when we follow authority in the proper way, we can be said to “obey” it.

EC – Seal Products: Seals and Sensibilities (TBT Aspects of the Panel and Appellate Body Reports)

The EC-Seals case stemmed from complaints by Canada and Norway against European Union regulations that effectively banned the importation and marketing of seal products from those countries. The EU said it had responded to European moral outrage at the killing of seals. Canada and Norway challenged the regime under various provisions of the Technical Barriers to Trade (TBT) Agreement and the GATT. This analysis looks primarily at the WTO panel decision and considers issues such as whether there is any bright line to be drawn between legitimate and illegitimate purposes in regulation and the proper legal meaning of a “technical regulation.”

Law's Halo

Like many people these days, I believe there is no general moral obligation to obey the law. I shall explain why there is no such moral obligation – and I shall clarify what I mean when I say there is no moral obligation to obey the law – as we proceed. But also like many people, I am unhappy with a position that would say there was no moral obligation to obey the law and then say no more about the laws moral significance. In our thinking about law in a resonably just society, we have a strong inclination to invest law with a sort of moral halo. It does not feel right to suggest that law is a morally neutral social fact, nor to suggest that law is merely a useful social technique. In this essay, I shall try to account in part for laws moral halo. (Let me emphasize “in part”; I do not purport to say everything that could be said.) Because I share the widespread inclination to invest law with this halo, I shall not be interested in a merely historical account of how we come to see law with a halo – a pure “error theory” of laws halo, if you will. I want to justify the halo. On the other hand, the main way to justify the halo is to get clear just what laws moral significance is. It is unlikely that at the end of the process of clarification the halo will have exactly the shape or luminance that it had at the beginning.

Perceiving Imperceptible Harms (with other Thoughts on Transitivity, Cumulative Effects, and Consequentialism)

Many writers believe there can be cases which satisfy the following description: starting from an initial state of affairs, it is possible to make a series of changes, none of which alters the value of the state of affairs in any way, but such that the final state of affairs that results from the series of changes is worse than the initial state of affairs.1 I shall call the claim that there can be such cases the “ex nihilo” claim, since in a sense it asserts that the bad effects of the complete series of changes arise ex nihilo. Proponents of the ex nihilo claim — ex nihilists, as I shall call them — usually advance the claim as part of an argument against act-utilitarianism.2 If there were cases such as the ex nihilist imagines, then it would be possible to construct variants in which act-utilitarianism unequivocally required behavior which in the aggregate produced sub-optimal consequences. We could construct the sort of case I have called (while denying its possibility) an “act-utilitarian prisoners’ dilemma”.3 Act-utilitarianism would be, in Derek Parfit’s phrase, “directly collectively self-defeating”.4

United States – Certain Measures Affecting Imports of Poultry from China: the fascinating case that wasn't

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS Article 4 says about equivalence regimes. The essay also criticizes the Panels analysis of some of the issues the Panel does discuss, such as the meaning of the ‘appropriate level of protection’ in SPS 5.5 and 5.6, and the relationship between the SPS and GATT XX(b).

Fundamental Rights, Federal States, and Sovereignty: Some Random Remarks

I am not an EU lawyer. The days are long gone when I could know a substantial fraction of EU law just by knowing about the free movement of goods. I get a fleeting glimpse of where the EU is going every year at the Jean Monnet Seminar in Dubrovnik, but no more than a glimpse. Still, when the editors invited me to write this Editorial Note, I could not refuse. Looking for inspiration, I read or reread all the previous twelve Notes. This was an enjoyable and informative exercise in itself, but only a few of the essays suggested topics I might have anything to say about. There were a few, however. And so, without claiming to advance discussion within the EU in any way, I will venture a few idle remarks on how some of that discussion struck this outsider. Specifically, I want to juxtapose some suggestions and assertions made in those Notes about the EU with some observations about the US and (just at the end) Canada.