• Publications in Philosophy of International Law
• Publications on the Morality of Obedience and Disobedience to Law
• Publications on Ethics and International Affairs
• Miscellaneous Publications in Philosophy of Law, Normative Ethics, and Meta-Ethcis
• Book Reviews
• Unpublished Papers

Publications in Philosophy of International Law:

Philosophy and International Law: A Critical Introduction 

Cambridge University Press, 2020  Buy it! | Download the Table of Contents and Introductory Chapter

In Philosophy and International Law, David Lefkowitz examines core questions of legal and political philosophy through critical reflection on contemporary international law. Is international law really law? The answer depends on what makes law. Does the existence of law depend on coercive enforcement? Or institutions such as courts? Or fidelity to the requirements of the rule of law? Or conformity to moral standards? Answers to these questions are essential for determining the truth or falsity of international legal skepticism, and understanding why it matters.

Is international law morally defensible? This book makes a start to answering that question by engaging with recent debates on the nature and grounds of human rights, the moral justifiability of the law of war, the concept of a crime against humanity, the moral basis of universal jurisdiction, the propriety of international law governing secession, and the justice of international trade law.

Listen to a discussion of the book on Borderline Jurisprudence | Read the contributions to the symposium hosted by EJILTalk!

A New Philosophy for International Legal Skepticism?

International Theory (2024)  Download Published Version (Open Access)

State Consent and the Legitimacy of International Law

Consenting to International Law (Cambridge University Press, 2023) Download Published Version | Download Pre-Print Version

The author argues that while State consent does contribute to international law’s legitimacy, it does not do so by providing a justification for it. States are not bound to obey international law because they have chosen to submit to its authority. Rather, international law provides them with a reason for action, and indeed they have a moral duty to obey it, if and only if they will do better at realizing justice if they act as the law directs them to act than if they act on their own judgment. As a means for crafting international law, State consent is valuable insofar as it yields international legal norms that satisfy this condition. In a few cases, state consent may also constitute an intrinsically valuable expression of trust in the international political community or an international institution that exercises political authority.

Political Feasibility and a Global Climate Treaty

Ethics, Policy, and Environment (2023)  Download Published Version | Download Pre-Print Version

I contend that to be politically feasible a global climate treaty must satisfy the International Paretian principle (IP).  I begin by defending IP as a principle of instrumental rationality that reflects the fact of extremely limited altruism vis-à-vis foreigners.  I then address two objections to my thesis.  One holds that an IP treaty is either economically infeasible or, contrary to its proponents’ claim, does not require side payments from poor states to rich ones.  The other holds poor states will reject any climate treaty that requires such side payments because it ignores or exacerbates their unjust treatment by rich states.

What Makes a Social Order Primitive?  In Defense of Hart’s Take on International Law

Legal Theory no. 4 (December 2017): 258–282.  Download Published Version | Download Pre-Print Version

The widespread antipathy to Hart’s description of international law as a simple or primitive social order, one that lacks a rule of recognition and therefore does not qualify as a legal system, rests on two misunderstandings. First, the absence of a division of labor in identifying, altering, applying, and enforcing law is as much, if not more, central to Hart’s understanding of what makes a society primitive as is the absence of any secondary rules at all. Second, it is primarily in terms of the presence of such a division of labor and the implications it has for the ontology of law that Hart understands the idea of a legal system and the ideas of a rule of recognition and legal validity that accompany it. Interpreted in light of these claims, Hart’s characterization of international law is quite plausible; moreover, embracing it may well provide both theoretical and moral benefits.

Skeptical Challenges to International Law (with Carmen Pavel)

Philosophy Compass 13:8 (2018).  Download Published Version | Download Pre-Print Version

International and domestic law offer a study in contrasts.  These differences have invited a number of skeptical challenges to international law, three of which we explore in this essay. The first points to one or more of the deviations of international law’s institutional structure from that of a modern state’s legal system as a basis for denying that international law is really “law.” Central to the debates over international law’s status as law are concerns about whether and why the concepts of law inherited from domestic legal systems should serve as the blueprint for theorizing law in general and international law in particular. The second skeptical challenge targets international law’s legitimacy. It claims that we lack reasons to treat international legal norms or the exercise of political power by international institutions, as anything other than an attempt by states to advance their national interests. If this challenge succeeds, states and other subjects of international law have merely prudential reasons to comply with it rather than a moral duty to obey it. Following a brief description of recent debates over how we ought to understand the concept of legitimacy when used to assess international political practices or global governance, we survey several possible bases for a moral duty to obey or respect international law. These include state consent, instrumental accounts of legitimate authority, and global democracy. The third set of challenges focuses on the relationship between state sovereignty and international law. International rules and institutions often make demands for reform affecting the domestic law of a state in order to elicit compliance with international law. Skeptics argue that the rule of international law is incompatible with states’ political self‐determination. Regardless of whether their defense of this claim ultimately succeeds, thoughtful engagement with it may well require us to rethink some of the fundamental concepts and normative ideals in political philosophy, including state sovereignty, democracy, individual rights, political authority, and political obligation.

Sources in Legal-Positivist Theories: Law as Necessarily Posited and the Challenge of Customary Law Creation

The Oxford Handbook of the Sources of International Law (2018).  Download Published Version | Download Pre-Print Version

No other approach to theorizing international law is more closely associated with and dependent upon the development of an account of its sources than is positivism. The explanation for this is a simple and familiar one: if there is any thesis regarding law that we can uncontroversially associate with the label ‘legal positivism’, it is the view that a norm’s status as law, its membership in a legal order or system, is solely a matter of its social source without regard for its merit. Commitment to even this relatively modest claim brings with it substantial argumentative burdens. Specifically, it requires international legal positivists to offer the following: (a) a defence of the claim that law must have a social source; (b) an argument outlining the possible sources of law—that is, those act-types that can count as positing or creating law; and (c) an argument defending or rejecting the existence of specific sources of law in a specific legal system.  The present work offers partial treatments of the first two of the argumentative tasks mentioned as incumbent upon international legal positivists.

I begin by considering the case for legal positivism; again, understood as the relatively modest thesis that the existence of law is a matter of its social source, regardless of its merits. Arguments for this thesis are of three types: descriptive (or social scientific), normative (or ethical), and conceptual (or metaphysical). I aim not to adjudicate between these arguments but to demonstrate that what follows for the sources of international law from the commitment to positivism depends to a considerable extent on the specific defence offered for accepting it as an account of the nature of law, including international law.

In section III: Customary International Law Creation: Orthodox and Informal Legislation Accounts, I focus specifically on the possibility of customary international law. Though few dispute that custom can, and does serve as a source of international law, there is widespread disagreement regarding the precise mechanism whereby customary legal norms come to exist. Positivists owe us a plausible account of what acts count as the positing or making of customary norms. I argue that neither the orthodox account of customary law formation nor those accounts in which judges make law based on a belief in a broad consensus regarding the desirability of there being such a law do so. I then sketch a third approach that characterizes customary norms as elements of a community’s normative practice, and custom-formation as normative interpretations of patterns of behaviour that are successfully integrated into that normative practice. This account avoids the chronological paradox in custom formation and accounts for various features commonly associated with custom, such as its binding agents even in the absence of consent. But is it compatible with legal positivism? I offer a preliminary argument for an affirmative answer, focusing particularly on its compatibility with the rationales Hans Kelsen and Joseph Raz offer for legal positivism.

International Law, Institutional Moral Reasoning, and Secession

Law and Philosophy 37:4 (2018): 385-413.  Download Published Version | Download Pre-Print Version

This paper argues for the superiority of international law’s existing ban on unilateral secession over its reform to include either a primary or remedial right to secession. I begin by defending the claim that secession is an inherently institutional concept, and that therefore we ought to employ institutional moral reasoning to defend or criticize specific proposals regarding a right to secede. I then respond to the objection that at present we lack the empirical evidence necessary to sustain any specific conclusion regarding an international legal right to secession. Specifically, I argue that we ought to adopt a precautionary approach, and that such an approach justifies giving no weight to promoting political self-determination per se when considering whether to reform international law governing secession. I conclude with several reasons to think that even a remedial right to unilateral secession will detract from, not enhance, the international legal order’s ability to promote peace and human rights.

The Legitimacy of International Law

Global Political Theory (Polity Press, 2016): 98-116.  Download Published Version | Download Pre-Print Version

The conduct of international affairs is subject to three kinds of normative standards. The first of these is prudence or rational self-interest, and its most common manifestation in international affairs involves reference to a state’s national interest as a basis for defending or critiquing its international conduct. Justice provides a second metric for assessing the international conduct of states, and sometimes other actors, and a set of normative concepts including freedom, equality and fairness with which to argue for or against particular acts or policies. Law, including both international law and the foreign law of particular states, provides the third normative framework commonly employed by those engaged in or otherwise concerned with international affairs. Thus an international act, such as one state’s invasion of another, can be criticized as imprudent, and/or as unjust and/or as illegal. As normative claims, each of these criticisms purports to give the invading state a reason to desist, and at least in the case of the second and third criticisms, entails that the invaded state and perhaps other actors (for example, other states) have a reason to treat the invading state in ways they would not otherwise be justified in doing. The focus of this chapter is on how international law performs this function; that is, it aims to explain why and when the fact that an act would violate international law in itself provides an actor with a reason, indeed a moral obligation, not to perform it. The answer, I shall argue, is that international law does so if and only if it is legitimate.

The Principle of Fairness and States’ Duty to Obey International Law

Canadian Journal of Law and Jurisprudence, 24:2 (2011): 327-346.  Download Published Version | Download Pre-Print Version

I employ the principle of fairness to argue that many existing states have a moral duty to obey international law simply in virtue of its status as law. On this voluntarist interpretation of the principle of fairness, agents must accept (in a technical sense) the benefits of a cooperative scheme in order to acquire an obligation to contribute to that scheme’s operation. I contend that states can accept the benefits international law provides, and that only if they do so do states have a fair-play duty to obey international law. In addition, I demonstrate that A. John Simmons’ criticisms of the attempt to use the principle of fairness to establish a duty to obey domestic law – both with respect to understanding the legal order as a cooperative scheme, and to agents’ acceptance of benefits – do not apply in the international context.

The Sources of International Law: Some Philosophical Reflections

The Philosophy of International Law (Oxford Univ Press, 2010): 187-203.  Download Published Version | Download Pre-Print Version

It seems only natural to begin the study of international law with a description of its sources. After all, whether as practitioner or scholar a person cannot begin to ask or answer questions about international law until he or she has some sense of what the law is. This requires in turn a basic grasp of the processes whereby international legal norms and regimes come to exist. Thus, students of international law must engage immediately with some of the most basic questions in the philosophy of law: what is law, and what is a legal order or system.  These questions frame much of Professor Besson’s excellent discussion of the sources of international law. In this essay I seek to build upon a number of Besson’s arguments regarding the nature of law and legal order, and her use of those arguments to describe and evaluate both existing and possible though currently non-existent sources of international law. Occasionally I argue at length in support of a particular conclusion, but more often I aim simply to indicate avenues for future research and debate. As will become clear, many theoretical questions regarding the sources of international law remain in need of further exploration.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

Canadian Journal of Law and Jurisprudence 21:1 (2008): 128-48.  Download Published Version | Download Pre-Print Version

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

 

Publications on the Morality of Obedience and Disobedience to Law:

Civil Liability for Civil Disobedience

Jarbuch für Recht und Ethik (Annual Review of Law and Ethics), Volume 31, Issue 1 | Download Pre-Print Version

Should a liberal-democratic State hold civil disobedients legally liable to compensate the private actors they target for the pecuniary injuries they inflict upon them? If not, why not, and who should bear those costs instead?  In this essay I argue that as long as they engage in a suitably circumscribed form of civil disobedience, one I contend a liberal-democratic state ought to legally tolerate, civil disobedients should not be held civilly liable for the damages they inflict. Rather, the political community ought to bear those costs, as one element of the burden it must bear in order to best realize its members’ rights to political participation.

Pragmatism and Associative Political Obligations

Political Studies doi:10.1177/00323217221099111 (2022)  Download Published Version | Download Pre-Print Version

Proponents of an associative account of political obligation maintain that individuals bear certain moral duties simply in virtue of their membership in a particular political community. I defend this thesis by interpreting it as a metaethical claim that expresses or implicitly relies on a pragmatist account of the nature of normativity, justification, and knowledge. Such a defense has a number of virtues. First, it offers a compelling rationale for the strategy commonly employed to defend the associative thesis. Second, a pragmatist reading provides the resources necessary to rebut a number of objections advanced against the associative thesis, such as the criticism that associative theorists cannot distinguish actually having political obligations from merely believing or feeling that one has political obligations. Third, a pragmatist metaethics entails a particular model of practical reasoning, namely constructive interpretation, that helpfully illuminates our actual practice of attributing or contesting political obligations.

In Defense of Penalizing (but not Punishing) Civil Disobedience

Res Publica 24:3 (2018): 273-289.  Download Published Version |  Download Pre-Print Version

While many contemporary political philosophers agree that citizens of a legitimate state enjoy a moral right to civil disobedience, they differ over both the grounds of that right and its content. This essay defends the view that the moral right to civil disobedience derives from (or is a facet of) a general right to political participation, and the characterization of that right as precluding the state from punishing, but not from penalizing, those who exercise it. The argument proceeds by way of rebuttals to criticisms of both claims recently advanced by Kimberley Brownlee. While in some cases those criticisms fail on their merits, in other cases the responses offered here reveal that the dispute over the ground and content of a moral right to civil disobedience reflects deeper disagreements regarding two foundational issues: first, whether moral rights are best conceived of as defeasible evaluative principles or conclusive normative ones, and second, whether principles of justice should be theorized on the basis of full or partial compliance.

Should the Law Convict Those Who Act From Conviction?  Reflections on a Demands-of-Conscience Criminal Defense

Criminal Law and Philosophy 10 (2016): 657-675.  Download Published Version | Download Pre-Print Version

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful violations of the law for which an actor ought not to be blamed; rather, they are violations of the law that are not (morally) wrong in virtue of their illegality. It is the absence of wrongdoing, and not merely the absence of fault, that renders the conviction and punishment of those who perform acts of civil disobedience inappropriate.

Legitimate Authority, Following Orders, and Wars of Questionable Justice

Journal of Political Philosophy 18:2 (2010): 218-227  Download Published Version | Download Pre-Print Version

This paper offers a sympathetic critique of David Estlund’s argument that subjects of a legitimate state have a duty to obey its legal commands to wage a particular war, even if they (rightly) believe the state has erred in judging that war to be one it is morally permissible to fight.  It also extends a modified version of that argument to argue for the permissibility in certain situations of disobeying orders not to wage a just war.

On a Moral Right to Civil Disobedience

Ethics 117:2 (2007): 202-233.  Download Published Version |  Download Pre-Print Version

In this essay I argue that citizens of a liberal-democratic state, one that I argue has a morally justified claim to political authority, enjoy a moral right to engage in acts of suitably constrained civil disobedience, or what I will call a moral right to public disobedience. Such a claim may well appear inconsistent with the duty usually thought to correlate to a legitimate state’s right to rule, namely, a moral duty to obey the law. If successful, however, the arguments that follow entail that the duty correlative to a liberal-democratic state’s justified claim to political authority is in fact a disjunctive one: either citizens of such a state must obey the law or they must publicly disobey it.

Simmons’ Critique of Natural Duty Approaches to the Duty to Obey the Law

APA Newsletter on Philosophy and Law 7:1 (2007): 9-14.  Download Published Version | Download Pre-Print Version

In his most recent book on the moral duty to obey the law, A. John Simmons considers and rejects a number of natural duty approaches to justifying political authority. Among the targets of Simmons’ criticism is the account defended by the book’s co-author, Christopher Heath Wellman. In this essay, I evaluate the force of Simmons’ objections to Wellman’s account of political obligation. As will become clear below, I think Wellman’s defense of the duty to obey the law defective in certain ways—but not in all of the ways that Simmons argues it is. By rebutting some of Simmons’ criticisms and identifying the limits of others, I aim not only to indicate one direction in which a renewed defense of natural duty approaches to political obligation might proceed, but also to encourage the pursuit of such a philosophical project.

The Duty to Obey the Law

Philosophy Compass (2006) Download Published Version | Download Pre-Print Version

Under what conditions, if any, do those the law addresses have a moral duty or obligation to obey it simply because it is the law? In this essay, I identify five general approaches to carrying out this task, and offer a somewhat detailed discussion of one or two examples of each approach. The approaches studied are: relational-role approaches that appeal to the fact that an agent occupies the role of member in the political community; attempts to ground the duty to obey the law in individual consent or fair play; natural duty approaches; instrumental approaches; and philosophical anarchism, an approach that denies that most subjects of contemporary states have a duty to obey the law simply in virtue of its status as such.

A Contractualist Defense of Democratic Authority

Ratio Juris 18:3 (2005): 346-64  Download Published Version | Download Pre-Print Version

This paper provides a defense of the following thesis: When there is reasonable disagreement over the design of morally necessary collective action schemes, it would not be reasonable to reject the authority of a democratic decision procedure to settle these disputes. My first argument is a straightforward application of contractualist reasoning, and mirrors T. M. Scanlon’s defense of a principle of fairness for the distribution of benefits produced by a cooperative scheme. My second argument develops and defends the intuition that treating others morally requires respecting their exercise of moral judgment, or a sense of justice. I conclude by addressing the problem of disagreement over the design of the democratic decision procedure itself, and rebutting Jeremy Waldron’s claim that democratic authority is incompatible with judicial review.

Legitimate Political Authority and the Duty of those Subject to It

Law and Philosophy 23:4 (2004): 399-435  Download Published Version | Download Pre-Print Version

According to William Edmundson, a legitimate political authority is one that claims to create in its subjects a general duty of obedience to the law, and that succeeds in creating in its subjects a duty to obey state officials when they apply the law in particular cases. His argument that legitimate political authority does not require the state’s claim to be true rests on his analysis of legitimate theoretical authority, and the assumption that theoretical and practical authority are the same in the relevant respects, both of which are challenged here. In addition, Edmundson fails to demonstrate that a general, content-independent, duty to obey officials who administer the law avoids the criticisms philosophical anarchists pose to a general, content-independent duty to obey the law. Finally, Edmundson requires a legitimate state to sincerely claim to create a general duty to obey the law, yet he also argues that in some cases the state ought to make literally false claims regarding the particular duties incumbent upon its subjects. Despite Edmundson’s recent efforts to reconcile these two claims, the conflict remains.

The Nature of Fairness and Political Obligation: A Response to Carr

Social Theory and Practice 30:1 (2004): 1-31  Download Published Version | Download Pre-Print Version

 

Publications on Ethics and International Affairs:

Autonomy, Residence, and Return

Critical Review of International Social and Political Philosophy 18:5 (2015): 529-46  Download Published Version | Download Pre-Print Version

This article argues that those unjustly displaced from a particular territory T cannot involuntarily lose their rights to reside there, or, as a consequence, their rights of return to it, even if they develop territorially grounded conceptions of the good where they now reside. The contrary position fails to accord the unjustly displaced the respect due to them in virtue of their personal autonomy. Facts commonly alleged to justify the supersession of rights of return to T only provide evidence that the unjustly displaced have abandoned their rights to reside there, or would do so if given a just opportunity to return. The rights of those now residing in T, which author argues may include those responsible for the unjust displacement, may limit the right of return but are unlikely to preclude it altogether.

Partiality and Weighing Harm to Non-Combatants

Journal of Moral Philosophy 6:3 (2009): 298-316  Download Published Version | Download Pre-Print Version

The author contests the claim made independently by F.M. Kamm and Thomas Hurka that combatants ought to assign greater weight to collateral harm done to their compatriot noncombatants then they assign to collateral harm done to enemy non-combatants. Two arguments by analogy offered in support of such partiality, one of which appeals to permissible self/other asymmetry in cases of harming the few to save the many, and the second of which appeals to parents’ justifiable partiality to their children, are found wanting. The author also rebuts Kamm’s argument that combatants should assign greater weight to collateral harm done to neutrals than to compatriot non-combatants. However, he contends that in some cases a neutral state’s right to sovereignty may entail that a combatant ought to choose the act that will collaterally kill a greater number of compatriot non-combatants over one that involves collaterally killing a lesser number of neutrals.

On the Foundation of Rights to Political Self-Determination: Secession, Non-Intervention, and Democratic Governance

Journal of Social Philosophy 39:4 (2008): 492-511  Download Published Version | Download Pre-Print Version

From a justificatory standpoint, perhaps the most basic question with respect to secession is what, if anything, provides the moral foundation for a group’s right to secede. My aim here is to make a start to answering this question. I do so, however, by considering a different, albeit closely related, question, namely what is the nature of the wrong done to members of a qualified group denied secession by the state that currently rules them? A compelling answer to this latter question, I suggest, will contribute significantly to a satisfactory answer of the former one.

 Collateral Damage

War: Essays in Political Philosophy, Larry May (ed), Cambridge University Press, 2008: 145-64   Download Pre-Print Version

The phrase “collateral damage” refers to harm done to persons, animals, or things that agents are not morally permitted to target in the conduct of war, as a side effect of attacks on persons, animals, or things that agents are morally permitted to target in the conduct of war. Call the first category that is, those persons, animals, or things that agents are not morally permitted to target – illegitimate targets of war, and the second category legitimate targets of war. Collateral damage, then, refers to harm done to illegitimate targets of war as a side effect of attacks on legitimate targets of war. As this characterization indicates, a complete response to the question of when, if ever, acts of war that cause collateral damage are morally justifiable must address harm done to private and public property, domestic and wild animals, and the environment. In this essay, however, I will focus solely on harm done to persons who are illegitimate targets of war, as a side effect of attacks on legitimate targets. My reason for doing so is twofold. First, most historical and contemporary discussion focuses on the rightness or wrongness of this particular kind of collateral damage. Second, rightly or wrongly, most people appear to be more concerned with harm done to persons than they are with harm done to animals, the environment, or inanimate objects.

 

Miscellaneous Publications in Philosophy of Law, Normative Ethics, and Meta-Ethics:

What Makes Law? Dworkin, Fish, and Koskenniemi on the Rule of Law

New Essays on the Fish-Dworkin Debate, Thomas Bustamante and Margaret Martin (eds.).  Hart Publishing, 2023: 363-379.

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In “What Makes Law?  Dworkin, Fish, and Koskenniemi on the Rule of Law,” I engage in a close reading of texts by the contemporary legal theorists Ronald Dworkin, Stanley Fish, and Martti Koskenniemi to argue that, contrary to appearances, they concur on the answer to the question posed in the essay’s title.  Specifically, each of them identifies law with a practice of government informed by fidelity to the ideal of the rule of law, or legality.  Furthermore, all three theorists conceive of legality as an attitude, mindset, or approach to constructing the social world that is most fully developed in members of the legal profession, or what is the same, those who have been habituated into a culture devoted to the ideal of government in accordance with the rule of law.  In part, this paper seeks to clarify the views of the eponymous theorists, and in the case of Dworkin and Fish, to emphasize a commonality in those views that may well exceed in its importance whatever differences also characterize them (and on which they and other legal theorists tend to focus).  But in addition, I aim to make a case for the superiority of these theorists’ conception of the rule of law to those advanced by others.  The argument takes the form of an appeal to testimony.  In their characterization of a practice of government in accordance with the rule of law, Dworkin, Fish, and Koskenniemi help us to understand the life of the law as the experience of lawyers.

Giving Up on Moral Truth Shall Set You Free: Walzer on Relativism, Criticism, and Toleration

Revue Internationale de Philosophie (2015): 385-398. With a reply from Michael Walzer.

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Morality, Michael Walzer contends, is not singular, objective, and universal, a principle or code applicable to all people at all times independent of whatever they happen to believe. Rather, it is plural, subjective or belief-dependent, and concrete, a multitude of moralities or moral ways of life created over time by the members of distinct historically situated communities. This conventional or culturally relative account of the nature of morality entails that we must abandon the familiar notion of moral truth, according to which at least some claims of the form ‘it is wrong to ϕ’ are true in virtue of their tracking or reflecting objective and universal moral principles binding on all moral agents as such.

Many of Walzer’s critics take this implication to constitute a reductio ad absurdum refutation of Walzer’s relativist meta-ethics. But what precisely do we lose if we give up on moral truth so conceived? Not a criterion to use in comparing different moralities or moral ways of life, I argue in the first section of this paper. Nor, as I demonstrate in section II, are we left without a standard for assessing or selecting among competing moral arguments, i.e. answers to questions regarding how we ought to live posed at varying levels of specificity. Moreover, I argue in section III that if we give up on the idea of universal and objective moral truth, and so the possibility of justifying the coercive imposition of our moral norms on other moral communities on the grounds that they would accept them if they were rational, impartially benevolent, open to God’s wisdom, etc., we will be disposed to tolerate the different ways of life they seek to lead. Unlike the discussion in the first two sections, which aims largely to explicate Walzer’s views, the argument set out in this last section differs from what Walzer himself says. Nevertheless, I argue that the case for toleration I offer on his behalf better coheres with Walzer’s overall account of the nature of morality than does his own.

On the Concept of a Morally Relevant Harm

Utilitas, 20:4 (2008): 409-23.  Download Published Version | Download Pre-Print Version

The author argues that only when the two harms are morally relevant to one another may an agent take into account the number of people he can save. He defends an orbital conception of morally relevant harm, according to which harms that fall within the ‘orbit’ of a given harm are relevant to it, while all other harms are not. The possibility of preventing a harm provides both a first-order reason to prevent that harm, and a second-order reason not to consider preventing irrelevant harms. This understanding of a morally relevant harm avoids two objections to such a concept recently raised by Alastair Norcross: identifying a point along a continuous scale of harms at which the divide between relevant and irrelevant harms occurs, and the entailment that the mere possibility of preventing harm that one is morally forbidden from preventing can determine which of two other actions morality requires.

Customary Law and the Case for Incorporationism

Legal Theory 11:4 (2005): 405-20.  Download Published Version | Download Pre-Print Version

In this article I develop a Razian account of the authority of customary law. I then use this account to refute Matthew Kramer’s claim that insofar as Raz endorses custom as a possible source of law, he ought to grant the same status to correctness as a moral principle. I contend that it is because customary norms can be authoritative, and not because they are what Kramer labels free-floating, that customary norms can be incorporated into law while moral norms cannot. In addition, I argue that nothing in Raz’s conception of the nature of law entails that being free-floating is even a necessary condition for a norm’s being eligible for incorporation as law. Reasons of political morality or political psychology, however, may weigh against incorporating norms that are not free-floating.

 

Book Reviews:

Review of Margaret Gilbert’s A Theory of Political Obligation: Membership, Commitment, and the Bonds of Society.

Review of Thomas Christiano’s The Constitution of Equality: Democratic Authority and Its Limits.

 

Unpublished Papers: