Papers by John H . Bogart
Ethics, 1985
State of nature theories have a long history and play a lively role in contemporary work. Theorie... more State of nature theories have a long history and play a lively role in contemporary work. Theories of this kind share certain nontrivial commitments. Among these are commitments to inclusion of a Lockean proviso among the principles of justice and to an assumption of invariance of political principles across changes of circumstances. In this article I want to look at those two commitments and bring to light what I believe are some important difficulties they engender. The state of nature theories I am interested in are nonpattern theories of justice. For these theories the justness of a society is marked by the conformance of the society to procedural principles. Under such a theory, resulting distributions of resources and the like have no particular import for questions of justice. Whatever may later result, so long as it came about in accordance with the rules determined by the principles ofjustice, is itself just. Nonpattern principles of justice are not the only sort of principles of justice. There are also pattern principles of justice. Pattern theories focus on structural features of a society. Pattern theories operate by analysis of selected relations among individuals or groups. Such a theory may link rights to desert or moral worth. Thus Rawls's difference principle is an example of a pattern theory. The Lockean proviso is one of the principles of justice governing property and other rights of nonpattern theories ofjustice. The Lockean proviso hangs as a "shadow" over the results of the operation of the other (usual) principles of justice. The Lockean proviso is intended to remedy a complaint of justice which arises when the positions of those no longer at liberty to use some resource are worsened in a particular way: (1) by no longer being able to use freely what they previously were free to use and (2) in such a way that it falls below a "baseline." Following Locke, a more traditional formulation of the proviso is to allow acquisition just so long as there is "enough and as good" left over for others. Although these very brief formulations of the proviso could not serve in a full theory of justice, I do not wish to spend the time here working out the
Public Affairs Quarterly, Apr 1, 1991
Analysis of the four primary accounts of the nature of rape. Author argues that rape is properly ... more Analysis of the four primary accounts of the nature of rape. Author argues that rape is properly understood as nonconsensual sex , an account preferable to those based on force or against the will. Main objections to such an account are addresses and implications of the account are explained.
SSRN Electronic Journal, 2000
An examination of the enforcement of California's anti-abortion statute over a 50 year period... more An examination of the enforcement of California's anti-abortion statute over a 50 year period in Sacramento, focusing on particular prosecutions suggests that abortion was not treated as a serious moral wrong. The erratic pattern of enforcement and sentencing suggests prosecution under the feticide statute was part of an effort by the California Medical Association to exert greater control over medical services, not that there was any significant condemnation of abortion providers or of women obtaining abortions.
Law Phil, 1987
This essay considers the nature of duties incumbent on legislators in virtue of the office itself... more This essay considers the nature of duties incumbent on legislators in virtue of the office itself I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral condition s into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality and the criminal law is therefore much less direct than assumed in most theories of the criminal law. I N TR O D U CT I ON Are there general norm ative demands on legislators to conform the results of their legislative activity to the contours of morality? More particularly, does there exist a general duty of this kind which makes it obligatory to create criminal law such that responsibility is necessary for culpability? 1 I take the claims of legislative duties, for the purposes of this essay at least, to be those entailed by the legislative office itself. The duties of interest are those one would have merely in virtue of occupying the office of legislator. The duties of interest here do not follow from a prior commitment to some particular moral school or theory, thou gh I do not wish to be thought to be denying 1 "Responsibility" means moral responsibility, and " cu lpability" means answerability under law, unless otherwise indicated.
Oxford Journal of Legal Studies, 1987
Arguments over criminalization and decriminalization often rely on quite similar strategies: the ... more Arguments over criminalization and decriminalization often rely on quite similar strategies: the moral status of conduct is thought to be especially important to determining the appropriate legal status of the conduct. If the conduct is not thought to be immoral (or seriously immoral), that is enough to show that it does not properly fall within the realm of control of the criminal law. Arguments relying on such a strategy may be termed moralized arguments. This article focuses on a crucial element of that strategy of argument which I call the subordination thesis. The subordination thesis is the thesis that the criminal law is normatively subordinate to morality because essential elements of criminal law are themselves conceptually dependent upon elements of morality. The strategy of moralized arguments is to show that some sorts of conduct do (or do not) meet certain moral descriptions and therefore are (or are not) properly candidates for control by the criminal law. The aim of this article is to show that the subordination thesis is untenable.
Canadian Journal of Law and Jurisprudence, 1995
I argue for adopting an understanding of rape as non-consensual sex rather than such alternatives... more I argue for adopting an understanding of rape as non-consensual sex rather than such alternatives as sex against the will of the victim, or non-voluntary sex. The article also argues for the value of conceptual analysis to reform in the criminal law and to social change in attitudes towards sexual relationships, in particular at demystifying sexual relationships.
Ethics, 1985
Many state of nature theories rely on a Lockean Proviso, in particular theories that are, in the ... more Many state of nature theories rely on a Lockean Proviso, in particular theories that are, in the sense developed by Nozick, non-pattern or libertarian theories. I advance an argument that inclusion of a Lockean Proviso entails commitment to a baseline condition that is relative to the changes in circumstances which no non-pattern theory of justice can meet, and hence invariant moral constraints on justice must fail.
Law and Philosophy, 1987
This essay considers the nature of duties incumbent on legislators in virtue of the office itself... more This essay considers the nature of duties incumbent on legislators in virtue of the office itself I argue that there is no duty for a legislator to enact a criminal law based on morality; there is no duty to incorporate substantive moral condition s into the criminal law; and there is therefore no duty derivable from the nature of the legislative office itself to make conditions of culpability depend on those of moral responsibility. Finally, I argue that the relation between morality and the criminal law is therefore much less direct than assumed in most theories of the criminal law. I N TR O D U CT I ON Are there general norm ative demands on legislators to conform the results of their legislative activity to the contours of morality? More particularly, does there exist a general duty of this kind which makes it obligatory to create criminal law such that responsibility is necessary for culpability? 1 I take the claims of legislative duties, for the purposes of this essay at least, to be those entailed by the legislative office itself. The duties of interest are those one would have merely in virtue of occupying the office of legislator. The duties of interest here do not follow from a prior commitment to some particular moral school or theory, thou gh I do not wish to be thought to be denying 1 "Responsibility" means moral responsibility, and " cu lpability" means answerability under law, unless otherwise indicated.
Canadian Journal of Law and Jurisprudence, 1989
One strategy for addressing the conflict between Legal Positivism and Natural Law theories is to ... more One strategy for addressing the conflict between Legal Positivism and Natural Law theories is to confine each theory to a different area of legal theory: Positivism for the theory of validity and Natural Law for the theory of adjudication. Using an article by D. Brink, I argue that the reconciliation strategy fails, and does so in ways which support Positivist legal theory.
Public Affairs Quarterly, 1991
Analysis of the four primary accounts of the nature of rape. Author argues that rape is properly... more Analysis of the four primary accounts of the nature of rape. Author argues that rape is properly understood as nonconsensual sex , an account preferable to those based on force or against the will. Main objections to such an account are addresses and implications of the account are explained.
Uploads
Papers by John H . Bogart