Kenneth Henley

Motivated Reasoning, Group Identification, and Representative Democracy

Research in moral, social and cognitive psychology undermines confidence in reasoning in representative democracies. Research seems to show that reasoning, especially in the political sphere, is not exploratory, but rather confirmatory, and that group identification bolsters such motivated reasoning. I argue that there are resources available in representative democracy that can be used to diminish the tendency to engage in confirmatory reasoning and group motivated thought, and so open a limited sphere where a significant degree of exploratory reasoning can occur.

Oaths and the Pledge of Allegiance: Freedom of Expression and the Right to Be Silent

Expression of belief can be free only with a background of freedom to be silent. Individual liberty flourishes when the state and society are excluded altogether from the realm of private individual belief. While guarding against abuse of governmental power, very carefully specified limits to the dissemination of racist, bigoted beliefs might be acceptable in a free society. But legal or social intrusion into privately held belief is not consistent with individual liberty. Oaths, the Pledge of Allegiance, and intrusive questioning of creedal and political belief or personal feelings must be treated with great suspicion in a liberal society. The right of silence has a more central place within the realm of liberal principles than the right to disseminate.

The Cheshire Cat: Same-Sex Marriage, Religion, and Coercion by Exclusion

The paradigm case of state coercion is a criminal sanction: the threat of loss of life, liberty, or property for disobedience to the state’s commands. A prudent person will consider forgoing the pleasure of his favorite drug out of fear of punishment, even if he believes the prohibition unjust. But, as H.L.A. Hart emphasized, much law consists not of such primary, conduct-controlling rules, but rather of secondary, power-conferring rules that establish structures of interaction. Private powerconferring rules include those governing contracts, covenants, conveyances, wills, trusts, and marriage. Since Lawrence v. Texas, homosexuals in the United States no longer suffer the coercion of the criminal law for adult, consensual, private sexual conduct. And homosexuals, of course, have always had the legal power to make contracts and wills, to convey real property, and create trusts. Marriage is the last bastion of discrimination through exclusion. But is such exclusion an exercise of state coercion, and, if so, is it illegitimate, or (in the alternative) unjust? I will argue that the exclusion of same-sex couples from exercising the power-conferring rules of marriage now constitutes state coercion in the sphere of conscience and religious belief, for only religious barriers continue to make sense. There is both an establishment of religion issue and a free exercise issue. As Emily Gill argues, the liberal polity should maximize free exercise by minimizing establishment. Because of changes in society, family law, and criminal law, this coercive exclusion from civil marriage totally fails to accomplish its secular goal. Once secular purposes are no longer served, the exclusion also, in addition to invading religious liberty, fails to respect the principle of equality of all persons before the law. Although I refer to U.S. Constitutional cases in passing, my argument should have purchase in any polity recognizing religious liberty and equality of persons.

The Impersonal Rule of Law

The rule or supremacy of law is a political ideal requiring that the authority of the political community be exercised only within the confines of ordained structures, established procedures, and known legal rules and standards, creating reasonable expectations on the part of those subject to the law. Recent accounts of this ideal often include a list of principles or precepts of the rule of law. Lon Fuller’s list has been rightly influential: generality of law, promulgation, non-retroactivity, clarity, consistency of laws, not requiring the impossible, constancy of law through time, and congruence between official action and declared rule; these principles of the ‘internal morality of the law’ can conflict with each other, so that practical wisdom is required in balancing their demands.

Reconciling the Virtues of Humanity and Respect for the Rule of Law: Irregular Immigration from the Perspective of Humean Virtue Ethics

Using a virtue ethics framework derived from David Hume, I focus on the perspective of a citizen or legal resident of a state receiving irregular (undocumented, “illegal”) immigrants, rather than focusing on questions concerning the rights of immigrants or what justice requires of states. What view should a virtuous citizen take of the many issues concerning irregular immigration into her country? This question involves both the virtues of the citizen or legal resident herself and her view of the virtues and vices of the immigrants. I argue that there are tensions within such a virtues approach, that understanding these tensions allows us to grasp the contrasting attitudes concerning immigration, and that on balance a virtuous person will respond to the plight of irregular migrants with sympathetic concern tempered by recognition of the need for order. I conclude with a plea for another Humean virtue, moderation.

Hume's “Wilt Chamberlain Argument” and taxation

Robert Nozick addresses the idea of egalitarian redistribution in an argument standardly considered original: the “Wilt Chamberlain Argument”. However, this argument (without reference to Wilt Chamberlain) is found in David Humes AnEnquiry Concerning the Principles of Morals, first published in 1751. Placing this argument within a Humean and Hayekian, rather than a Lockean or Kantian, perspective radically changes its import for issues of economic justice. Rather than vindicating the radical individualism of Nozick and other libertarians, applied to our circumstances using Humes conventionalist and evolutionary account of justice, Humes Wilt Chamberlain argument vindicates moderate redistribution constrained by the rule of general laws and the goal of fostering innovation and industriousness.