Re'em Segev

Well-Being and Fairness in the Distribution of Scarce Health Resources

Based on a general thesis regarding the proper resolution of interpersonal conflicts, this paper suggests a normative framework for the distribution of scarce health resources. The proposed thesis includes two basic ideas. First, individual well-being is the fundamental value. Second, interpersonal conflicts affecting well-being should be resolved in light of several conceptions of fairness, reflecting the independent value of persons and the moral significance of responsibility of individuals for the existence of interpersonal conflicts. These ideas are elaborated in several principles that are applied with respect to the distribution of scarce health resources.

Second-Order Equality and Levelling Down

Many think that equality is an intrinsic value. However, this view, especially when based on a consequential foundation, faces familiar objections related to the claim that equality is sometimes good for none and bad for some: most notably the levelling down objection. This article explores a unique (consequential) conception of equality, as part of a more general conception of fairness concerning the resolution of interpersonal conflicts, which is not exposed to these objections.

Should Law track Morality

Does the moral status of an action provide in itself a non-instrumental, pro-tanto reason for a corresponding legal status—a reason that applies regardless of whether the law promotes a value that is independent of the law, such as preventing wrongdoing or promoting utility or distributive or retributive justice, regardless of the consequences of doing so? While the relation between morality and law is a familiar topic, this specific question is rarely discussed explicitly. Yet it seems to be controversial. The article highlights and considers this question, while focusing on the criminal law. It concludes that the answer is negative—there is no necessary relation between morality and law in this respect. Rather, there is a reason in favor of incorporating morality into the law only when this incorporation promotes a moral value that is independent of the law.

Lesser Evil and Responsibility: Comments on Jeff McMahan's Analysis of the Morality of War

The main aim of Jeff McMahans manuscript on the morality of war is to answer the question: why and accordingly when is it justified or permissible to kill people in war? However, McMahan argues that the same principles apply to individual actions and to war. McMahan rejects all doctrines of collective responsibility and liability. His claim is that every individual is liable for what he has done and not for the actions of others - even if both are part of the same collective. Accordingly, McMahan challenges the common view that it is much easier to justify killing in war compared to killing in other contexts. Therefore, the scope of his project exceeds the context of war and extends to interpersonal conflicts between individuals that do not qualify as war. Many of McMahans main claims are appealing. Particularly, appealing is his rejection of the collectivist account of war. Indeed, it seems that the simple story according to which people are responsible solely for their actions - rather than (also) to the actions of others - should be held on until a different, more complex, account of collective responsibility is put forward and its plausibility is explained. Therefore, the article focuses on the general principles advocated by McMahan with regard to the resolution of all interpersonal conflicts: Whether these conflicts are small scale or large scale (that is, whether few or a many people are involved in the conflict), and within the latter category of conflicts involving many people, whether these conflicts qualify as war (according to some standard) or not.

Balancing, Judicial Review and Disobedience: Comments on Richard Posner's Analysis of Anti-Terror Measures (Not a Suicide Pact)

The general assumption that underlines Richard Posner’s argument in his book Not a Suicide Pact is that decisions concerning rights and security in the context of modern terrorism should be made by balancing competing interests. This assumption is obviously correct if one refers to the most rudimentary sense of balancing, namely, the idea that normative decisions should be made in light of the importance of the relevant values and considerations. However, Posner advocates a more specific conception of balancing, both substantively and institutionally. Substantiality, he argues for balancing based on a consequential moral theory that rejects the ideas of deontological rights and particularly absolute or very weighty deontological rights. More specifically, it seems that Posner assumes a utilitarian theory that also rejects intrinsic concern for distributive justice. Institutionally, Posner argues that this method of reasoning should be adopted by judges when interpreting the constitution. These substantive and institutional background assumptions are of course controversial, but I do not dispute them in this Article. My critique concerns Posner’s conclusions based on these assumptions. Posner’s main claim is that given the magnitude of the danger of modern terrorism, even a small probability that an act of terror may occur justifies extreme anti-terror measures. While the general idea that even a slight risk of very serious harm justifies significant cost is plausible, I doubt Posner’s assumptions regarding the cost of various means of preventing these dangers, his claim that judicial review in this context should be very limited, and his suggestion of an absolute formal prohibition that is not strictly enforced in the context of measures such as interrogational torture.

Responsibility and Moral Luck: Comments on Benjamin Zipursky, 'Two Dimensions of Responsibility in Crime, Tort, and Moral Luck'

The essence of the moral luck question is whether the responsibility of persons is determined only in light of actions that are within their control or also in light of factors, such as the consequences of their actions, which are beyond their control. Most people seem to have contrasting intuitions regarding this question. On the one hand, there is a common intuition that the responsibility of persons should be judged only in light of what is within their control. On the other hand, there is a strong intuition that the consequences of actions sometimes affect the responsibility of agents even when these consequences depend on factors that are beyond their control. A parallel dilemma is present in the law. Legal rules, particularly criminal law rules and tort rules, often differentiate between agents in light of factors that are beyond their control, and in this sense involve legal luck. Of course, factors beyond the control of persons, including the consequences of their actions, can be significant, with respect to the evaluation of the responsibility of persons for instrumental or epistemic reasons. The question is thus only with respect to the independent significance of factors beyond the control of agents, and particularly the consequences of actions, to the evaluation of the (extent of the) responsibility of agents. Benjamin Zipursky offers an interesting argument in order to support the intuition in favor of moral and legal luck, particularly with regard to consequences, especially the rule according to which the punishment of completed offences is more severe than the punishment of attempts and the rule that tort liability applies only to actions that have caused harm. The aim of this Comment is to evaluate this argument. I will try to consider to what extent Zipurskys explanation merely reiterates the familiar intuition that the normative evaluation of the conduct of persons should be influenced by consequential luck, and to what extent it provides new insights that might appeal also to those who are more forcefully drawn to the contrasting intuition that we should judge people only in light of factors that are within their control. I argue that while Zipurskys suggestions might appeal to those who already share the intuition in favor of (consequential) moral and legal luck, they would not convince those who have doubts regarding moral and legal luck.