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This paper discusses non-ideal theory as guidance for making bad situations better by morally permissible means. It distinguishes constructive theorizing, which suggests ways of improving specific kinds of bad situation, from cautionary theory, which concerns moral risks of actions under bad conditions. Reflective moral judgment yields cautionary precepts, identifying presumptively unjustifiable modes of action. The paper illustrates the application of precepts cautioning about coercion and the exposure of others to significant risks, by considering the 1955–1956 bus boycott in Montgomery, Alabama, and the ‘Children’s Crusade’ of the 1963 Birmingham desegregation campaign. All such campaigns involve coercive elements, but the paper argues that coercion was not a morally significant factor in either case. Endangerment is another matter: given the violent, sometimes lethal, reactions to civil rights actions under Jim Crow, those two campaigns’ endangerment of innocent persons must be taken very seri...

Frederick Rosen, Classical Utilitarianism from Hume to Mill (London and New York, Routledge, 2003), pp. xiv + 289.

Critique de deux aspects de la theorie de la desobeissance civique: celui qui implique le jugement moral des theoriciens, celui qui concerne le jugement moral des theoriciens sur ceux qui s'engagent a desobeir. Rejetant a la fois l'idee d'obligation politique, fondee sur l'obligation morale d'obeir a la loi, et la signification historique de la resistance comprise comme reconnaissance de la raisonnable justice de la loi, l'A. montre que certains theoriciens adoptent un jugement insoutenable sur la societe americaine et une fausse conception de la resistance politique, a travers l'analyse de trois resistants paradigmatiques et des injustices qu'ils denoncent: Thoreau contre le commerce esclavagiste americain, Gandhi contre la loi coloniale anglaise et Martin Luther King contre le racisme du systeme Jim Crow

Legal interpretation has recently enjoyed much theoretical attention. The received theory of law's open texture implies, however, that legal interpretation (in the sense of ascertaining the actual meaning of a law) is impossible when language gives rise to reasonable uncertainty or disagreement about the law's meaning and proper application. Ideas surrounding the received theory imply that interpretation is impossible whenever there is reasonable uncertainty or disagreement, from any source, about the law's meaning or proper application. The theory thus indicates that there is little scope for a theory of legal interpretation. This paper argues that the received theory misconstrues the legal implications of the open texture of language and provides an untenable basis for rejecting the possibility of legal interpretation.

This paper offers a close analysis of intentionalism -- the idea that the meaning or proper application of written law is determined by certain historical facts about the mental states of those who made the law, at the time they did so. Unrestricted intentionalism faces deep-seated problems: it offers no guidance for resolving its own ambiguities, it almost certainly generates contradictions, and it almost certainly implies that some meaningful laws lack meaning or proper application. On purely theoretical grounds, therefore, the unrestricted theory is almost certainly untenable. I suggest further that there's little prospect of refining intentionalism so that it might provide interpretive guidance; and finally that a type of seemingly intentionalist reasoning is better seen as proposing justifying rationales for laws -- an approach for which there is a plausible justifying rationale (but which, I note, is essentially limited by the availability of genuine justifications).

Ethical relativism flirts with incoherence by suggesting that incompatible judgments can both be true. This paper shows that some relativistic theories avoid incoherence while others do not. Some theories ground moral judgments on principles ascribed to social groups while others ground moral judgments on principles ascribed to individuals. Some theories regard the relevant principles as applicable to an individual’s own action (agent relativism) while others regard the relevant principles as applicable to the individual’s moral judgments (appraiser relativism). Some theories regard moral judgments as possessing truth values while others regard moral judgments as lacking truth values. Relativistic theories suffer from incoherence if they allow potentially contrary principles to overlap (typically, appraiser theories), but not otherwise (typically, agent theories). Special attention is given to Hare’s “prescriptivism” and Harman’s theory of “inner” judgments as well as to the question whether the avoidance of incoherence renders relativistic theories plausible.

I. CONSTITUTIONAL ORIGINALISMBy “originalism” I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters. At least since Marbury, in which Chief Justice Marshall emphasized the significance of our Constitution's being a written document, originalism in one form or another has been a major theme in the American constitutional tradition.

A central, persisting problem for legal theory is the relationship between law and morality. Reasons to affirm and to deny that law merits some measure of respect seem safely grounded in the law. The law's antinomous character is reflected in Holmes's suggestion that understanding the law requires that we wash the notion of duty with "cynical acid."' Holmes meant not merely to distinguish law from morality but also to emphasize "that wrong statutes can be and are enforced."2 This suggests that legal requirements, or "duties," can fail to merit any of the respect that duties are due. The terms we apply to law, such as "duty," seem to carry moral force that law's moral fallibility appears at the same time to deny. There are other antinomies. That a government is "legitimate," for example, suggests that it enjoys a moral right to govern, and yet governments conventionally credited with legitimacy are capable of conduct that seems to forfeit any claim they might have to respect. The jurisprudential schools of "natural law" and "legal positivism" represent contrary attempts to resolve these antinomies-one affirming and the other denying that law, by its nature, merits respect. Philip Soper's theory of law can be placed within this context: Soper takes the side of "natural law." (Soper conceives of "natural law" more narrowly [p. 51].)

Philosophers of law generally appear to assume that there is a very close connection between a judicial decision's being required by law and its being justified. In this paper I shall try to show that this assumption is mistaken. Legal theory recently has focused on the problem of "hard cases," in which there is reason to doubt that the law requires a particular decision, to the exclusion of alternative possible decisions. The relevant question is not whether the law requires that a judge render some decision or other, thus deciding those cases, but whether the law that can truly be said to exist before a decision is rendered requires one particular decision. Discussions of this issue often seem to assume that this is equivalent to the question, whether a particular decision is uniquely justifiable. Less attention has been paid to what we may call "easy cases," in which it seems clear that the law requires a particular decision. What is said about them, however, does appear to assume that a particualar decision's being required by law is equivalent to its being justified. Those who believe that there is a significant connection between a judicial decision's being required by law and its being justified would no doubt agree, upon reflection, that the connection is not one of equivalence. Some qualification of the view under discussion would seem to be required by considerations such as the following. First, someone who believes that no particular decision is required by law in a hard case need not hold that no decision can then be justified. It may be possible for a court to justify a par ticular decision, to the exclusion of the alternative decisions, even when no decision is required by law. In that event, any justification must turn on doctrines that come from outside the law. If so, however, we should not assume that a judicial decision can be justified only when it is required by law. In other words, we must allow that a judicial decision's being required by law is not, in general, a necessary condition of its being justified. Second, and perhaps more controversially, it seems possible for a judicial decision to be justified, all things considered, even when it is con trary to a decision that is required by law. This can happen when the in justice that would be done by following the law provides sufficient reason for a judge not to follow it and to render a different decision. If we wish to leave room for this possibility, then we must allow that a judicial decision's

REFERENCES 1. A. N. Prior. "Indirect Speech Again," Philosophical Studies, this issue. 2. L. Jonathan Cohen. "Why Do Cretans Have to Say So Much?" Philosophical Studies, 12:72-78 (October 1961). 3. A. N. Prior. "Epimenides the Cretan," Journal of Symbolic Logic, 23:261-66 (1958). 4. L. Jonathan Cohen. "Can the Logic of Indirect Discourse Be Formalised?" Journal of Symbolic Logic, 22:225-32 (1957). 5. R. Carnap. Meaning and Necessity. Chicago: University of Chicago Press, 1947. Pp. 83ff. 6. L. Jonathan Cohen. The Diversity of Meaning. London: Methuen, 1962.

WE STILL read bits of Bentham today-or anyway expect undergraduates to read them. For we do not look for much illumination there. We understand him so well, we see his defects so clearly, that we need hardly attend to the actual texts. But Bentham does have his uses. His books illustrate pure and simpleminded philosophical positions. And he proves the virtues of the younger Mill, measured by the degree John Stuart broke loose from his Benthamic shackles. Such attitudes may encourage the irrational distortions that we find. If we are Natural Lawyers we tend to see Bentham's distinction between law and morality as a lack of healthy moral partisanship. We confuse his insistence upon the reality of "law as it is" with an acceptance of it. On a different plane, we blame Bentham for the ruthless sacrifice by statesmen of whole nations, because these men calculate. We do not ask whether human welfare could justify the means or the ends, as Bentham would have demanded. If this is what Bentham has become to us, why bother with the monumental task of producing a new Collected Works of Jeremy Bentham, which now yields the third and fourth' of thirty-eight projected volumes? Well (some may feel), it is there, waiting to be done. The mountain of manuscripts is there, indeed, many never having found their way into print (and some, as we have already found, well worth printing). So is the chaotic jungle of Bentham's actual publications, including the unfortunate Bowring edition of Bentham's Works (published 1838-43). As well as the treacherous bogs and swamps of revisions, redactations, rearrangements, and translations, which obscure not only the sequence and development of Bentham's thought, but even what is Bentham's own among the ideas of his sometimes too helpful collaborators and editors. The editors, quixotically, must expect-or at least hope-that Bentham will be read. I may perhaps be excused, therefore, if I dwell upon the history and talk about the content of these two important books even though they are not now published for the first time. For the history is revealing and the contents are not what we have learned to expect. If we asked Bentham to place his work within the categories now in use among philosophers, he would no doubt choose the label "political" or "legal" rather than "moral". Mill says as much in his commentaries, but he also seems to condemn Bentham partly for this reason. And yet Bentham's concentration on the law, politics and government might be defended from his own utilitarian point of view. For he conceives law primarily as a system of social control whose special features and whose place in human life provide it with the greatest potential for producing positive good but also the capacity for bringing about great evils. Government therefore demands our most serious and sustained attention. Law and politics were accordingly the focus of Bentham's theoretical as well as his practical concerns, and he was more intent upon applying his criterion of utility than with defending it. What he called "private ethics" never captured much of his attention. But he also saw, quite early, that we need to understand the law (and related matters such as human action and motivation) before we can effectively change it-before we can even hope to criticize it accurately. He found himself driven again and again to break new philosophical

IN the beginning (we are told) there were people with rights. These rights concerned life, health, and liberty. People could also create rights, by finding or making things, and could transfer rights to others, by gifts and exchange. These rights determine the limits of morally justifiable conduct: any act that infringes on a right is morally indefensible; any act within the limits of one's rights, and any consequence of exercising them, is morally unobjectionable. On this frail foundation Robert Nozick constructs a complex defense of the "minimal" or "night-watchman" state-one dedicated to protecting persons against force, fraud, theft, and breach of contract, but to no further ideal or conception of justice, such as equality. Nozick's book, Anarchy, State and Utopia, 1 is an important contribution to political theory. The "libertarian" position that is vigorously developed in it has not been argued so comprehensively or by so talented and resourceful a philosopher in recent times. The book advances an original conception of justice, ranges widely over moral and political subjects, and is packed with rich and provocative argumentation. Part I of Nozick's book seeks to show that a minimal state can be justified; Part II argues that no "more extensive" state can be justified; Part III discusses utopian experimentation. This brief last section is thoroughly engrossing (and the most uniformly wellwritten chapter) but also largely independent of the rest. I shall concentrate here on the main line of argument, Nozick's defense of the minimal state.

This book is concerned with the nature of law and its relation to morality, concentrating on the proper moral attitude of a citizen towards the law of his country. The author begins by presenting a new analysis of the concept of legitimate authority and then gives a detailed explanation of the legal positivist's approach to law. Within this framework the author examines several areas where legal analysis is often thought to be impregnated with moral values, namely the social functions of law, the ideals of the rule of law, and the role of the courts. The last part of the book is devoted to some key substantive problems. The author argues that there is no obligation to obey the law. He provides a new analysis of respect for law, emphasizing its moral importance. The author maintains there is no right to civil disobedience in a liberal state (though actos of civil disobedience may occasionally be justified even in such a state) and he argues for a right of conscientious objection in certain areas.

Mary lives with her two small children in a modest, crowded neighborhood. She needs her car for transportation. Many others in her neighborhood have cars, and parking spots are sometimes difficult to find. Given her tight schedule and family circumstances, and despite her limited budget, she feels justified in renting a house that comes with a garage for her car. Access to the garage is provided by a private driveway, which she alone is authorized to use. Sometimes, however, she finds someone else's car parked in the driveway, which prevents her from parking or leaving with her own car. When time permits, she seeks out the driver or leaves a note to ask that the car be moved and the driveway left clear. Sometimes she must have a car towed away. Even so, she may be greatly inconvenienced. Once, when her younger child had an urgent medical appointment, she had to leave her car behind and take the child by cab instead. Mary's problem, described in a general way, is commonplace: she has rights that are not always respected by other people. Rights-even ordinary rights like Mary's-pose problems for utilitarianism. My purpose in this paper is to suggest how deep these problems are. For present purposes, the rights we speak of may be placed in two classes. Some rights depend for their existence upon social recognition or enforcement. So far as rights are enforceable by law, for example, they fall into this category. I shall call these institutional rights. Other rights that we speak

It is commonly held that rights "correlate" with duties.2 By this is usually meant at least that rights imply duties (even if not all duties imply rights) and also that claims of individual rights need not be recognized unless backed by proof that corresponding obligations obtain. Such a doctrine of correlativity also forms part of the view that rights must be understood or analyzed in terms of duty or obligation.3 I shall examine this doctrine, beginning with a clear case of "correlativity," turning then to cases that diverge from it significantly. I argue that it is at best misleading to say that rights generally "correlate" with duties.4 For the implications between them