The debate that raged in the interwar period between the Austrian economists (who argued the thesis that under socialism it would not be possible to engage in rational economic calculation) and socialist economists (who rejected that thesis) was, narrowly conceived, a debate in positive economics. What was being discussed was certainly not the morality of capitalism or of socialism. Nor, strictly speaking, was the debate even about society's economic well-being under socialism; it concerned the ability of central planners to make decisions that take appropriate account of relevant resource scarcities, in the light of consumer preference rankings. To be sure, the extraordinary interest which surrounded the debate and the passions that lurked barely below its surface testified to the powerful implications of the debate for crucial issues in welfare economics. The Austrians were not merely exploring the economies of socialism; they were in effect demonstrating that, as an economic system attempting to serve the needs of its citizens, socialism must inevitably fail. But, even if the debate is interpreted in its broadest terms, as a debate in welfare economics, it represented a sharp break widi traditional polemics relating to the socialism-capitalism issue. Traditionally the arguments for or against capitalism had, until 1920, been deeply involved in ediical questions. Mises's 1920 challenge to socialism, in contrast, was explicit in making no attempt to address any claims concerning the alleged moral superiority of socialism. He simply argued that, as an economic system, socialism was inherendy incapable of fulfilling the objectives of its proponents; central planners are unable to plan centrally.

Political philosophy appears to have recovered from its alleged death in the middle of the last century, but now faces the realist charge that in the work of John Rawls and those influenced by him it fails to be political in the right way; it is merely “applied moral philosophy.” I dismiss the hyper-realist position of authors such as Raymond Geuss for taking an implausibly narrow view of politics. There is more merit in Bernard Williams’s claim that legitimacy, not justice, is the central problem of political philosophy. Yet we cannot understand the significance of legitimation without referring to the moral values that are realized when it succeeds. Thus, Williams fails to show that political normativity can be detached entirely from ethics. Moreover the legitimacy requirements of a liberal state, according to Williams, are substantively close to the requirements of justice according to Rawls. In light of the latter’s turn to “political liberalism,” they appear also to hold convergent views about the status of the theories they are advancing. I conclude by suggesting that the “applied moral philosophy” charge would apply only to philosophers who believe that general moral principles, like utility or rights, can do all the work of political evaluation. Politics does indeed have special features that impose distinctive justificatory requirements on its procedures and the outcomes they produce.

How many serious mistakes can a brilliant philosopher make in a single paragraph? Many think that Mill answers this question by example—in the third paragraph of Chapter IV of Utilitarianism. Here is the notorious paragraph:

The only proof capable of being given that an object is visible, is that people actually see it. The only proof that a sound is audible, is that people hear it: and so of the other sources of our experience. In like manner, I apprehend, the sole evidence it is possible to produce that anything is desirable, is that people do actually desire it. If the end which the utilitarian doctrine proposes to itself were not, in theory and in practice, acknowledged to be an end, nothing could ever convince any person that it was so. No reason can be given why the general happiness is desirable, except that each person, so far as he believes it to be attainable, desires his own happiness. This, however, being a fact, we have not only all the proof which the case admits of, but all which it is possible to require, that happiness is a good: that each person's happiness is a good to that person, and the general happiness, therefore, a good to the aggregate of all persons. Happiness has made out its title as one of the ends of conduct, and consequently one of the criteria of morality.

This article is concerned with the nature of individual moral failure. This has not been a standard issue for exploration in moral philosophy, where questions surrounding moral success have been more popular: in particular, the questions “What is it to do the moral thing (i.e., how do I identify moral success)?” and “Why am I supposed to do the moral thing (i.e., what is morality's authority)?” I want to change the subject and pursue answers to three importantly related questions about people's failure to be moral.

First, I want to explore an issue in moral psychology: why do people behave immorally? I suspect this question has been largely ignored by philosophers because they have thought it a question for psychologists, and one that, at any rate, has an easy surface answer. Isn't it our immorality simply the result of our excessive self-interest? Yet we shall see in what follows that this answer is not nearly good enough, and that philosophers have a lot to contribute in determining what would count as a satisfactory answer. We shall also see that different meta-ethical theories purporting to explain the authority of moral action implicitly assume different and often mutually inconsistent accounts of why (and when) we fail to be moral, and our analysis will show that none of these accounts of moral failure is unproblematic.

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by whom should constitutions be interpreted? These are the issues that I shall address.

Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions.

A broad range of intellectual perspectives may be brought to bear on any important social institution. To this general rule, the institution of private property is no exception. The desirability of private property has been endlessly debated across the disciplines: philosophical, historical, economic, and legal. Yet there is very little consensus over its proper social role and limitations. Is it possible to find a unique solution to questions of property and private ownership, good for all resources and for all times? The famous defense of private property that is found in chapter 5 of John Locke's Second Treatise of Government answers this question in the affirmative, for Locke writes as though all property was given to mankind in common, and then seeks to find the quickest and most expeditious way to convert all common property into private property. His implicit, but undefended, assumption is that common forms of property are both undesirable and unstable, while private forms of ownership are always just the opposite. Yet his preferred method for moving from a commons to a regime of private property—the unilateral decision to appropriate by each actor—is one that has been frequently condemned as a sop to unbridled egotism, even though it is subject to two constraints: the first against waste, and the second requiring the appropria-tor to leave “enough, and as good” for others.

The state that we inhabit plays a significant role in shaping our lives. For not only do its institutions constrain the kinds of lives we can lead, but it also claims the right to punish us if our choices take us beyond what it deems to be appropriate limits. Political philosophers have traditionally tried to justify the state's power by appealing to their preferred theories of justice, as articulated in complex and wide-ranging moral theories—utilitarianism, Kantianism, and the like. One of John Rawls's greatest contributions to political philosophy has been his recognition that this is the wrong way for this field to approach its task. He points to what he calls “the fact of reasonable pluralism,” which is the incontestable fact that in a free society people striving to lead their lives ethically will subscribe to conflicting moral and religious doctrines, many of which will be “reasonable” in the special sense of leaving their adherents willing to cooperate with those with whom they have moral disagreements. And this means that political philosophers can no longer rely on any particular “comprehensive” doctrine in their attempts to justify the state. For doing so would be unfair to those who subscribe to a conflicting reasonable doctrine; it would mean that the coercive power of the state would not be justified to them in terms they can accept, even while they were forced to abide by its terms.

Over the past decade, both the doctrine and the practice of criminal law have come under intensely critical review by feminist scholars and reformers. The territory under reexamination by or because of feminists spans the problems of women as witnesses, defendants, and prisoners in the criminal justice system; it extends to the situation of women as potential victims and offenders in diverse offense circumstances. Crimes in which the defendant or victim is typically female (e.g., prostitution, rape) are predictable subjects of feminist concern, but attention has extended as well to the dynamics of women's experience (arguably distinctive and certainly neglected) in connection with such offenses as assault, shoplifting, drug offenses, and even armed robbery.

Feminist criticism and reform efforts have focused for the most part at the level of specific rules or particular areas of practice. In this paper I want to comment on the structure of the feminist critique and to compare its underlying assumptions to those of criminal law as it has been traditionally understood and practiced. In at least some of its prominent versions, feminism entails orientations and commitments incompatible with those of the received criminal law tradition. To the extent that this is true, criminal law, constructed and expounded almost exclusively by males, can fairly be characterized (descriptively) as “sexist” or at least “gendered” (that is, male-oriented) in its core assumptions. Moving to normative ground, I suggest that if the descriptive claims of the feminist movement are true to any substantial extent, then criminal law – conceived in terms seemingly uncongenial to a large part of our population – would require thorough reexamination.

We often hold people morally responsible for their emotions. We praise individuals for their compassion, think less of them for their ingratitude or hatred, reproach self-righteousness and unjust anger. In the cases I have in mind, the ascriptions of responsibility are not simply for offensive behaviors or actions which may accompany the emotions, but for the emotions themselves as motives or states of mind. We praise and blame people for what they feel and not just for how they act. In cases where people may subtly mask their hatred or ingratitude through more kindly actions, we still may find fault with the attitude we see leaking through the disguise.

In their celebrated essay “The Right to Privacy,” legal scholars Samuel Warren and Louis Brandeis identified as the generic privacy value “the right to be let alone.” This same phrase occurs in Justice Brandeis's dissent in Olmstead v. U.S. (1927). This characterization of privacy has been found objectionable by philosophers acting as conceptual police. For example, moral philosopher William Parent asserts that one can wrongfully fail to let another person alone in all sorts of ways—such as assault—that intuitively do not qualify as violations of privacy and thus cannot be violations of the right to privacy.

In various areas of Anglo-American law, legal liability turns on causation. In torts and contracts, we are each liable only for those harms we have caused by the actions that breach our legal duties. Such doctrines explicitly make causation an element of liability. In criminal law, sometimes the causal element for liability is equally explicit, as when a statute makes punishable any act that has “caused … abuse to the child….” More often, the causal element in criminal liability is more implicit, as when criminal statutes prohibit killings, maimings, rapings, burnings, etc. Such causally complex action verbs are correctly applied only to defendants who have caused death, caused disfigurement, caused penetration, caused fire damage, etc.

An alleged moral right to informational privacy assumes that we should have control over information about ourselves. What is the philosophical justification for this control? I think that one prevalent answer to this question—an answer that has to do with the justification of negative rights generally—will not do.

The primary concern of this essay is with the question “What is a political community?” This question is important in its own right. Arguably, the main purpose of political philosophy is to provide an account of the nature of political association and, in so doing, to describe the relations that hold between the individual and the state. The question is also important, however, because of its centrality in contemporary debate about liberalism and community.

Philosophers have long distinguished various interpretations of the principle of equal opportunity and argued over their implications and justifications. But they have almost always tacitly assumed that the context was a national one. They have not, in particular, considered whether some interpretation of the principle could apply and be justified globally, that is, to all people without regard to their nationality or citizenship. Yet, such an investigation is clearly demanded. The leading moral theories seem to support a case for at least some interpretation of the equal opportunity principle, and it is not obvious that they can support it only domestically.

Consider, first, those moral theories which place great value on negative liberty, for example, libertarianism. Libertarianism supports a standard interpretation of the equal opportunity principle – “formal” equality of opportunity; formal equality of opportunity requires that legal restrictions j on the taking of opportunities be lifted, and such restrictions diminish negative liberty. But libertarianism would also seem to support a global. version of formal equality of opportunity, for example, that laws be rescinded which require that candidates for jobs in a country be citizens of that country, or which restrict emigration or immigration. Such laws also diminish negative liberty.

Or consider those moral theories which place great value on efficiency, for example, utilitarianism. Utilitarianism probably supports formal equality of opportunity because legal restrictions on the taking of opportunity not only diminish negative liberty, but also often prevent talent and skill from going where it can best be used and thus reduce efficiency.

My thesis is simple. The right of informational privacy, the great modern achievement often attributed to the classic Samuel Warren and Louis Brandeis article, “The Right to Privacy” (1890), asserts an individual's right not to have private personal information circulated. Warren and Brandeis claimed that individual dignity in a modern society requires that people be able to keep their private lives to themselves and proposed that the common law should be understood to protect this dignity by making dissemination of private information a tort. As broadly stated, this right not to have private information distributed directly conflicts with a broadly conceived freedom of speech and of the press. My claim is that, in cases of conflict, the law should reject the Warren and Brandeis innovation. Speech and press freedom should prevail; the privacy tort should be ignored. This conclusion requires a normative argument concerning the appropriate basis and status of speech freedom that this essay will not really provide but for which I have argued elsewhere. Here, instead, I will describe that theory of speech freedom, explore its implications for informational privacy, and finally suggest some reasons to think that rejection of the privacy tort should not be so troubling and is, in fact, pragmatically desirable.

In contemporary market societies, the laws (generally speaking) do not place individuals under enforceable obligations to aid others. Perhaps the most striking exception to this broad generalization is the practice of conscription of able-bodied males into military service, particularly in time of war. Another notable exception is the legal enforcement in some contemporary societies of “Good Samaritan” obligations — obligations to provide temporary aid to victims of emergencies, such as car accident victims. The obligation applies to those who are in the immediate vicinity of the emergency and who can supply aid of great value to the victim at small risk and tolerable cost to themselves. The fact that not all contemporary societies have enacted such Good Samaritan laws underscores the point that the general rule is that individuals are under no legal obligation to help others. According to some moral views, this legal situation approximately accords with the moral fact that persons who have not voluntarily incurred obligations to aid others should not be coerced into tendering such aid. Moreover, it is worth noting that these two prominent exceptions to the tendency of legal systems to eschew enforcement of positive obligations to aid others are plausibly in everyone's ex ante interest and not notably redistributive in intent.

The ideal of public justification holds, at a minimum, that the most fundamental political and legal institutions of a society must be publicly justified to each of its members. This essay proposes and defends a new account of this ideal. The account defended construes public justification as an ideal of rational justification, one that is grounded in the moral requirement to respect the rational agency of persons. The essay distinguishes two kinds of justifying reasons that bear on politics and shows how they inform the ideal of public justification. It also decouples public justification from contractualist political morality. The result is a novel account of public justification that departs markedly from how the ideal is commonly characterized, but shows how it retains its distinctiveness as an ideal of politics.

Moral disagreement about public policies—issues such as abortion, affirmative action, and health care—is a prominent feature of contemporary American democracy. Yet it is not a central concern of the leading theories of democracy. The two dominant democratic approaches in our time—procedural democracy and constitutional democracy—fail to offer adequate responses to the problem of moral disagreement. Both suggest some elements that are necessary in any adequate response, but neither one alone nor both together are sufficient. We argue here that an adequate conception of democracy must make moral deliberation an essential part of the political process. What we call “deliberative democracy” adds an important dimension to the theory and practice of politics that the leading conceptions of democracy neglect.

Libertarianism is a controversial political theory. But it is often presented as a resting upon a simple, indeed commonsense, moral principle. The libertarian “Nonaggression Principle” (NAP) prohibits aggression against the persons or property of others, and it is on this basis that the libertarian opposition to redistributive taxation, legal paternalism, and perhaps even the state itself is thought to rest. This essay critically examines the NAP and the extent to which it can provide support for libertarian political theory. It identifies two problems with existing libertarian appeals to the NAP. First, insofar as libertarians employ a moralized understanding of aggression, their principle is really about the protection of property rights rather than the prohibition of aggression. Second, the absolutist prohibition on aggression, which libertarians typically endorse and which is necessary to generate strongly libertarian conclusions, is grossly implausible. The essay concludes by setting forth a version of the NAP that does not suffer from these problems. It argues that this more moderate and defensible version of the NAP still has important libertarian implications, but that a full defense of libertarianism cannot rely upon appeals to nonaggression alone.