Matthew H. Kramer

Moral realism as a moral doctrine

Preface. 1. Introduction. 2. Mind-Independence. 3. Determinate Correctness. 4. Uniform Applicability. 5. Invariance. 6. Transindividual Concurrence. 7. Impartiality. 8. Truth-Aptitude. 9. Further Dimensions of Ethical Objectivity? 10. Supervenience as an Ethical Phenomenon. References. Index.

Getting Rights Right

In a long essay published in 1998, I have defended a version of the Interest Theory of legal rights.1 That theory, which stands in opposition to the Will Theory, can be tersely and approximately summarized in the following two theses: (1) Necessary but insufficient for the actual holding of a right by X is that the right, when actual, protects one or more of X’s interests. (2) The mere fact that X is competent and authorized to demand or waive the enforcement of a right will be neither sufficient nor necessary for X’s holding of that right. For the Interest Theory, then, the essence of a right consists in the normative protection of some aspect(s) of the right-holder’s well-being. The two principal tenets of the Interest Theory are squarely rejected by the proponents of the Will Theory. Most of the Will Theorists maintain that a right’s potential to protect an interest of X is not necessary (as well as not sufficient) for X’s holding of the right, and they also maintain that X’s competence and authorization to demand/ waive the enforcement of a right are separately necessary and jointly sufficient for X’s holding of that right. For the Will Theory, the essence of a right consists in opportunities for the right-holder to make normatively significant choices relating to the behaviour of someone else.

HOW CHANGES IN ONE'S PREFERENCES CAN AFFECT ONE'S FREEDOM (AND HOW THEY CANNOT): A REPLY TO DOWDING AND VAN HEES

How is a persons freedom related to his or her preferences? Liberal theorists of negative freedom have generally taken the view that the desire of a person to do or not do something is irrelevant to the question of whether he is free to do it. Supporters of the “pure negative†conception of freedom have advocated this view in its starkest form: they maintain that a person is unfree to I¦ if and only if he is prevented from I¦-ing by the conduct or dispositions of some other person(s) (Steiner, 1994; Carter, 1999; Kramer, 2003). This definition of freedom is value-neutral in the sense that no reference is made to preferences over options or indeed to any other indicators of the values of options, either in the characterization of “I¦-ing†itself (any conduct fits the bill) or in the characterization of the way in which I¦-ing can be constrained (any prevention counts as a constraint on freedom).

Torture and Moral Integrity: A Philosophical Enquiry

1. Introduction I: Moral Conflicts and Deontology 2. Introduction II: What is Torture? 3. Why Torture is Wrong 4. The Rationality of Deontological Constraints 5. Legal Responses to Torture Bibliography

Some Doubts About Alternatives to the Interest Theory of Rights

For decades, the paramount alternative to the Interest Theory of rights has been the Will Theory. This article seeks to strengthen the position of the Interest Theory by discrediting its chief rival. Because the article’s main critique of the Will Theory proceeds from premises that do not beg any questions against that theory, it goes further than previous critiques in rebutting all or most versions of the Will Theory on their own terms. In addition, by accentuating the untenability of a sophisticated hybrid theory of rights, the article emphasizes that the Will Theory’s failures are the Interest Theory’s successes.

Do Animals and Dead People Have Legal Rights

This essay maintains that the question in its title is really three sets of questions: a conceptual inquiry, a moral/political inquiry, and an empirical inquiry. After devoting some attention to the relevant conceptual issues, the essay ponders in detail the moral/political issues. It suggests some answers to the germane moral/political questions, and it takes pains to distinguish those questions from other lines of inquiry with which they might be confused. Although only animals and dead people are mentioned in the title, the essay also considers whether infants, comatose people, lunatics, future generations, groups, trees, and natural phenomena such as rivers should be classified as potential holders of legal rights.

On the Separability of Law and Morality

If there is one doctrine distinctively associated with legal positivism, it is the separability of law and morality. Both in opposition to classical natural-law thinkers and in response to more recent theorists such as Ronald Dworkin and Lon Fuller, positivists have endeavored to impugn any number of ostensibly necessary connections between the legal domain and the moral domain. Such is the prevailing view of legal positivism among people familiar with jurisprudence. During the past couple of decades, however, that prevailing view has come into question among some estimable legal positivists. In particular, Joseph Raz and his followers have queried the importance and the very tenability of an insistence on the separability of law and morality. The present article maintains that the traditional view of legal positivism is correct and that the recent skepticism about it on the part of some positivists is unfounded. When the notion of the disjoinability of law and morality is understood properly as a large array of theses, it proves to be resistant to the challenges that have been mounted against it.

Why Freedoms Do Not Exist by Degrees

The overall freedom of an individual or a society is something that exists in differing degrees. By contrast, anyones particular freedom to engage in this or that mode of conduct is something that exists (or does not exist) in an all-or-nothing manner. Many political philosophers have taken a contrary view, however, and have contended that each particular freedom exists to a greater or lesser extent in proportion to the easiness or difficulty of exercising it. This essay argues that the temptation to view particular freedoms as matters of degree can be overcome when careful attention is paid to three distinctions: overall liberty versus particular liberties, the existence of any particular liberty versus the probability of its emergence, and becoming more free to do something versus becoming free to do something in more ways. By properly marking these distinctions, one can readily apprehend that the existence or inexistence of each particular freedom is characterized by no gradations – an insight that improves ones understanding of the necessary and sufficient conditions for the existence of any such freedom.

Justice as Constancy

Anyone seeking to gain a clear understanding of the relationships between law, justice, and morality must attend to numerous distinctions within each of those phenomena. Not least important is the distinction between the substantive aspects and the procedural or formal aspects of law and justice. Claims about the moral import of law will prove to be untenable if they give insufficient heed to the form/substance gap. My current discussion, which is largely a critique of a brilliant essay by David Lyons, will aim to highlight the unwisdom of approaches to the law—morality relation that generalize too sweepingly over the divide between substance and procedure.

Legal Responses to Consensual Sexuality between Adults: Through and beyond the Harm Principle

The property of responsibility can obtain in many different forms. Among those sundry kinds of responsibility are the following six: 1. Responsibility as attributability. Somebody is responsible for some instance(s) of conduct if the instance(s) of conduct can correctly be attributed to him (usually for purposes of commendation or condemnation). 2. Responsibility as prudence or upstandingness. Somebody is responsible if she is generally disposed to act prudently or if she generally behaves upstandingly (especially as a member of some community or group whose good she generally seeks to further). 3. Responsibility as obligatedness. Somebody is responsible for a certain task or objective if he is obligated to perform that task or to fulfil that objective. 4. Responsibility as due care. Somebody exhibits responsibility in her undertaking of a certain activity if she acts in a duly careful manner when she proceeds with it. 5. Responsibility as accountability. Somebody is responsible for the fulfilment of a certain objective or the emergence of a certain state of affairs if she can properly be held to account for the non-fulfilment of that objective or the non-emergence of that state of affairs.