Philosophy of Law Exam #2

Necessary condition

P is necessary for Q when: if Q is true, then P is true. (Q can’t happen without P.)

Sufficient condition

P is sufficient for Q when: if P is true, then Q is true. (P is enough to guarantee Q.)

Necessary and sufficient

P is both when: P if and only if Q, which is equivalent to “if P then Q” and “if Q then P.” Statements of this form are called biconditionals.

P is necessary for Q

Q → P (“Al is a mammal” is necessary for “Al is a human.” (Human → mammal.))

For necessary, the condition P sits at the end of the arrow (Q → P).

P is sufficient for Q

P → Q (“Astrid lives in Pittsburgh” is sufficient for “Astrid lives in Pennsylvania.”)

For sufficient, it sits at the start (P → Q).

P is necessary and sufficient for Q

P ←→ Q (“Gus is a bachelor” and “Gus is an unmarried man.”)

Hart and Honoré Thesis

Moral responsibility and legal responsibility can come apart, and both can come apart from causation. HH try to work out what notion (or notions) of cause jurists have in mind when they assign legal responsibility. They want to know when we can infer, from “X caused this,” that X is legally responsible for it.

Causation vs. moral responsibility

• Maria kicks Joey: she caused the pain and is blameworthy.

• Cause, no blame: a lecturer’s dog examples unknowingly pain a student whose dog just died.
  Blame, no cause: Veronica plans to poison Betty, who spills the drink. (Also the lake polluter whose garbage harms no one.)

Causation vs. legal responsibility

• Lenny punches Benny and breaks his nose; the judge takes a bribe and rules for the briber.

• Liable, no cause: a guarantor for a tenant’s unpaid rent; parents for what their children do (the handout cites the 2024 Michigan school-shooter parents’ case as controversial).
  Cause, not liable: drugs planted in your backpack, which you carry across state lines.

Moral vs. legal responsibility

• Typically they travel together.

• Moral, not legal: Damian lies that Jonathan’s haircut looks ugly.
  Legal, not moral: the guarantor again; a state paying reparations for past wrongs.

Don’t conflate “responsible” with “held responsible.

Being legally (or morally) responsible is different from being held legally (or morally) responsible.

Liability sense.

To say someone is responsible is to say that, under the rules, it is permissible (at least) to blame, punish, or make them pay. “Answerable” and “liable” are near-synonyms. This carries no implication that the person did or caused anything. A master for a servant’s torts, or an insurer, is responsible in this sense.

Factual sense.

To say someone is responsible is to say, among other things, that they did or caused the harm. This usually brings the liability sense along with it.

Why the law can’t simply copy morality

• Social cost. Legal sanctions (prison, forced payment) are grave. A moral connection to harm adequate for blame is only one factor the law must weigh.

• Chilling effect. Always following private moral judgment would deter too many valuable activities.

• The law both extends and cuts off responsibility. England: no murder if the victim doesn’t die within a year and a day. New York: someone who negligently starts a fire pays only for the first house it destroys. Vicarious liability goes the other way and extends liability beyond causation.

• Precision. Morality can leave hard cases vague (“too difficult to judge”). A legal system has to supply precise answers. This is why HH say the legal theory must be precise while the moral one may stay vaguer.

Three ways someone can be connected to harm

Directly causing harm, neglect-based harm, influencing others

Directly causing harm

an action “initiated a series of physical events dependent on each other and culminating in injury,” as in wounding or killing.

Neglect-based harm

failing common precautions (an unsecured gun gets stolen and used). The legal analogue is negligence; lawyers say “within the risk.”

Influencing others:

inducing or procuring someone else’s harmful act, through non-rational means or “interpersonal transactions” (threats, bribes, advice). Legal analogues: instigating crimes, enticement, inducement.

What are the two claims often run together about consequences?

(1) To consequences no limit can be set. (2) Any event that wouldn’t have happened without an earlier event is a consequence of that earlier event.

Which claim do theorists mainly rely on, according to HH, and how does it define “consequence”?

It defines a consequence by necessary condition.

What is the “cone” in this view of causation?

Going back in time, the necessary conditions for an event fan out, so there are more and more of them the further back you go.

On the necessary-condition view, how do the various conditions compare as “the cause”?

Any necessary condition is as much “the cause” as any other.

How is this view like Mill’s, and how does it differ?

Like Mill, it refuses to single out one condition as the cause. But Mill’s cause is the sum of sufficient conditions, not any necessary condition.

Consequences must be foreseeable

Once smoking is shown to cause lung cancer, past cancers count as its effects even though no one foresaw it.

A voluntary act always cuts it off

Often it does (the waiter who lays a knife is not why the guest stabs the hostess), but not when the opportunity was negligently provided or a reason was supplied.

Just apply general laws (Hume/Mill)

We trace links between things that rarely go together (a falling tile kills someone). We must still decide when to combine generalizations.

Cause in fact (actual cause; the “but-for” test)

If Event 1 caused Event 2, then had Event 1 not occurred, Event 2 would not have occurred. In philosophy this is one half of the counterfactual test.

• cause in fact is a necessary condition of legal causation, not sufficient. Every proximate cause is an actual cause, but not every actual cause is a proximate cause. The work is in saying which actual causes make the cut.

Proximate cause (legal cause).

An actual cause that is also a legal cause, meaning the person is legally responsible for what they caused in fact.

What limits an actual cause from being a proximate cause

1. Voluntary intervention

2. Actions that are less than fully voluntary (assimilated to the circumstances)

3. Coincidences

4. Negligence, opportunities, and “harm within the risk”

5. Reasons: inducing and occasioning

Voluntary interventions

Archie’s match. In both scenarios Archie throws a lit match into the forest and a forest fire results, so cause in fact is satisfied in both.

• Scenario A: a breeze rolls in, the foliage catches. Archie caused the fire.

• Scenario B: the flame is about to die and Billie deliberately fans it. Billie caused the fire, not Archie.

Why the difference? The breeze is a recurrent feature of the environment: a mere circumstance in which the cause operates. Billie’s deliberate fanning is a voluntary intervention. It is not a “condition” through which we can trace the consequence; it would force us to revise the claim that Archie caused the fire. Voluntary interventions displace “the prior action’s title to be called the cause.” Billie is not an instrument of Archie or a victim of circumstances he created; she freely exploited them.

Actions that are less than fully voluntary (assimilated to the circumstances)

The limiting force of voluntary action is weaker when the second act isn’t a fully free, informed choice without pressure. The earlier act then still counts as the cause. HH’s range:

Reflex or involuntary movement

A’s gunshot startles B, who knocks a glass over. We say the shot made B start (not that it broke the glass), but A’s act is still treated as the cause of the damage.

Duress or threats

If A threatens serious harm or orders something clearly within his authority, A “forced” or “caused” B’s act.

Predicaments

A sets a house on fire (intentionally or not); B jumps from a height or rushes in to save a child and is hurt. B’s choice was the lesser of two evils, so A’s act is treated as the cause of B’s injuries. HH admit this rests on evaluations on which people differ.

Ignorance or mistake

If A poisons B’s food and B knowingly eats it, A hasn’t caused the death. If B doesn’t know and eats it, A caused it.

Coincidences (involuntary interventions)

The tree. Archie punches Billie, who falls to the ground; at that moment a tree crashes down and kills Billie. Archie’s punch is an actual cause of the death (but-for is met). It is not a proximate cause, because the tree’s fall is a coincidence. Archie did cause the bruises. Intent is irrelevant either way: even if he meant to kill, this is an attempt, not the cause of death, unless he knew the tree was about to fall.

HH’s four conditions for a coincidence.

The conjunction of two or more events (1) is very unlikely by ordinary standards, (2) is for some reason significant or important, provided (3) that it occurs without human contrivance and (4) the events are independent of each other.

Fifth condition (p. 80).

An abnormal condition existing at the time of the intervention does not count as a coincidence or an extraneous cause, but an abnormal event after the intervention can. Archie lightly taps Billie, who has a rare illness, and Billie dies: no coincidence, Archie (unintentionally) caused the death. The tap simply “operates” on a condition already in place (“the stage already set”).

Contrivance

if Archie knew the tree would fall and hit Billie into its range, it is no coincidence and Archie caused the death. This is the true core of the legal maxim that an intended consequence can’t be too “remote.”

Independence

if Billie had fallen against the tree and brought it down, each stage would be an effect of the previous one: not a coincidence; Archie’s act is the cause.

The tree vs. the breeze.

Structurally the tree is like the evening breeze (subsequent and independent). HH’s point is that “extraneous cause” is a misleading metaphor; what makes the tree different is the coincidence criteria above.

Indeterminacy.

How unlikely is “unlikely”? Judged by what an ordinary person knows, not an expert. Also the description matters (“tree” vs. “rotten tree”). Even if a scientist knew the tree was rotten, the fall at that moment would still count as a coincidence. These vague standards are why courts must exercise discretion.

Negligence, opportunities, and “harm within the risk”

The voluntary-intervention limit does not apply when the harmful intervention is the kind of thing that makes the omission negligent in the first place. If you leave the house unlocked, the range of consequences attributed to the neglect “depends primarily on the way in which opportunities are commonly exploited.” A thief entering is within the risk; a murderer is not (and one who burns the house down isn’t treated as a “natural” consequence of the neglect).

HH also say causing harm and providing opportunities are different grounds of responsibility, so “within the risk” can’t be the universal test. When A’s shot makes B start and break a glass, the relationship in play is “made B start,” not likelihood. If a splinter then blinds C, A caused C’s injury even though we may not blame him for so unusual a result.

Reasons: inducing and occasioning

When A advises or bribes B (B’s act is fully voluntary), A doesn’t “cause” or “make” B do anything; the strongest words are “induced” or “procured.” The question is how far B’s acts count as consequences of A’s words. It depends mainly on A’s intentions or the “plan of action” put before B. If A bribes B to break in and steal from an empty house and B does, B acted in consequence of the bribe. If B burns the house down, that wouldn’t be treated as the consequence, though it wouldn’t have happened without the bribe. Courts have to settle what happens when B departs from the plan’s details.

Mens rea

the state of mind statutorily required to convict a defendant of a particular crime.

King: Letter from Birmingham Jail Thesis

We have a moral obligation to disobey unjust laws. King puts it this way: someone who breaks a law conscience says is unjust, and who willingly accepts the penalty to arouse the community’s conscience, “is in reality expressing the highest respect for the law.” (841)

Direct action

Action that seeks to achieve an end directly by the most immediately effective means (a boycott or strike). Contrast indirect action like negotiating or petitioning.

Civil disobedience

Refusing to comply with certain laws as a peaceful form of protest.

The argument for breaking (some) laws (premise)

P1. There are just laws and unjust laws.
P2. People are morally required to obey just laws.
P3. People are morally required to disobey unjust laws.
C. We should advocate breaking some laws and obeying others.

Just law

A man-made code that squares with the moral law or the law of God.

Un-just law

Out of harmony with the moral law. In Aquinas’s terms, an unjust law is human law not rooted in eternal law and natural law.

Tests for if a law is moral or unjust?

1. Degrades human personality

2. Difference made legal

3. No saying in making it

4. Just on its face, unjust in application

Degrades human personality

Any law that uplifts human personality is just; any that degrades it is unjust. Segregation gives the segregator a false sense of superiority and the segregated a false sense of inferiority, so it distorts the soul. Buber: it replaces an “I–thou” relationship with “I–it.” Tillich: sin is separation.

Difference made legal

A law is unjust if a majority compels a minority to obey it but doesn’t bind itself. A just law is one the majority is willing to follow itself (“sameness made legal”).

No say in making it

A law is unjust if inflicted on a minority that, being denied the vote, had no part in enacting it. (He asks whether Alabama’s legislature was democratically elected.) (841)

Just on its face, unjust in application

A parade-permit ordinance is fine, but it becomes unjust when used to maintain segregation and to deny peaceful assembly and protest. (841)

Argument that segregation is unjust (premises)

P1. Segregation gives the segregator a false sense of superiority.
P2. Segregation gives the segregated a false sense of inferiority.
P3. So segregation distorts the soul and damages the personality. (P1, P2)
P4. Any law that degrades human personality is unjust.
C. All segregation statutes are unjust. (P3, P4)

How to break an unjust law

Openly, lovingly, and with a willingness to accept the penalty. Evading or defying law would “lead to anarchy.”

Objections to Kings speech + response

1. Use legal channels, not civil disobedience.

2. Civil disobedience precipitates violence.

Use legal channels, not civil disobedience.

Voiced in the figure of the “white moderate”: agrees with the goal but not the methods, prefers “negative peace” (absence of tension) to “positive peace” (presence of justice), is more devoted to “order” than to justice, and tells Black Americans to wait.

It’s taking too long. 340 years of waiting; “we still creep at a horse-and-buggy pace toward gaining a cup of coffee at a lunch counter.” Time is neutral, not an automatic healer; “the people of ill will” have used time better than “the people of good will.” Law and order exist to establish justice; when they fail, they become dams against progress. Direct action doesn’t create tension; it exposes tension already there, like opening a boil.

Civil disobedience precipitates violence.

Not a logical assertion. It’s like condemning a robbed man because his money precipitated the robbery. It’s wrong to tell people to stop seeking their constitutional rights because the quest may provoke violence. “Society must protect the robbed and punish the robber.”

Swarup: Rights, Respect, and the Duty to Obey the Law Thesis

Citizens of democratic states have a pro tanto moral duty to obey their laws, except for those laws that violate people’s basic rights. The duty is grounded in the natural duty to respect fellow citizens’ right to a democratic say.

Pro tanto duty

A duty that binds to a certain extent but can be overridden by other duties. Keeping a promise is a pro tanto duty; it may be outweighed by saving a life. “Pro tanto” contrasts with all things considered: what you ought to do once everything is weighed.

Natural duty

A moral duty that all persons owe to all others regardless of voluntary acts or social roles. (Not being cruel is natural; a student’s duty not to use AI on assignments is not, since it arises from taking up the role of student.)

Political obligation

The moral duty to obey the law.

Standard natural-duty argument, why it fails (premises)

P1. States are morally necessary: only they can rescue us from the state of nature.
P2. States can’t do this unless most people obey their laws (widespread obedience is necessary).
P3. We have a natural duty to rescue others from peril when the cost isn’t unreasonably high.
P4. So we have a natural duty to help establish and maintain states that perform these tasks. (P1, P3)
C. Each of us has a pro tanto duty to obey the law. (P2, P4)

State of nature

Civilization without laws; Hobbes’s “war of every man against every man,” life “solitary, poor, nasty, brutish, and short.” It can be a hypothetical rather than a historical period.

Problem 1: the objection from the sufficiency of partial or selective compliance

P2 is false. Keeping the state stable and functioning doesn’t require obedience to most laws, just a small subset. Think of fishing regulations, laws requiring you to report found treasure, or protections for historical monuments (the handout adds traffic, antitrust, net neutrality, and privacy laws). Widespread disobedience of those wouldn’t send us back to the state of nature. So at best the argument yields a duty to obey a few essential laws, not a general presumption.

Problem 2: the particularity objection (Simmons)

We think we have a special duty to obey the laws of our own state, not of every state (a Canadian doesn’t owe Sweden’s laws obedience). But a natural duty is owed equally to everyone, so it can’t bind us specially to one state. “A natural duty cannot bind one specially to support and comply with one particular state over others.” Simmons thinks this is insuperable for natural-duty views. Two further intuitions the objection draws on: the tie to one’s own state is particular and sticky (a Canadian in Australia still owes Canadian taxes; she owes Australian law obedience only while there).

Swarups argument vocabulary

If X has a moral duty to Y to do a, then Y has a moral right to a, a right held against X. A right to a democratic say is held against both the state and individuals.

SWARUPS arguments (premises)

P1. Everyone has a moral right to an equal democratic say. (Assumed, not defended.)
P2. So everyone has a moral right to participate in a democratic decision-making process that ensures that equal say.
P3. Everyone has a natural duty to respect the moral rights of others. (Assumed.)
P4. So everyone has a duty to fully respect fellow citizens’ right to that process. (P3)
P5. Fully respecting that right requires obeying the laws that result from it.
C. So everyone has a pro tanto duty to obey the law in a democratic state. (P4, P5)

Violating a right

We violate a right when we (1) prevent or stop the bearer from enjoying the good or performing the activity the right protects, or (2) interfere with or impede access to it by attaching significant burdens or obstacles.

Respect (Darwall’s “recognition respect”)

Giving appropriate consideration to the right in deliberating about what to do, and acting accordingly.

Disrespecting a right ex: drunk driver

• She hits no one.

• She doesn’t attend to others’ rights to life and bodily integrity; flippant disregard, and she willfully raises the likelihood of harm.

Disrespecting a right ex: polluter

• One family’s garbage makes no appreciable difference to a large lake.

• He fails to respect the right to a clean environment.

Disrespecting a right ex: breastfeeding employee

• The administrator provides a legally adequate room and doesn’t block her.

• He refuses a small effort to give her a better one.

Common thread: indifference

The agent behaves as if it’s none of his concern whether, or how easily, others can exercise their rights. “Respect involves a willingness to help facilitate others’ exercise of their rights,” at least when the cost to oneself is low (7). She admits she has no general account of what disrespect is; the cases suffice.

Applying it to the democratic say

Both states and individuals can violate this right (disenfranchising, voter intimidation, burdensome ID rules, misinforming about where to vote). But respect requires more, and part of that is obeying the laws that come out of the process.

Argument 1 (expressive significance).

Suppose I say, “You have your vote, that’s all I owed you,” then break the resulting laws. I haven’t violated your right, yet you have a complaint: voting is not just recording a preference, it aims at settling how things go. By disobeying, I declare I’m unwilling to lend effort to the end for which the right is exercised, which is the same “shrug” as in her cases.

Argument 2 (the candidate who won’t concede).

A candidate who refuses to accept a free, fair election’s result fails to respect the democratic process. A citizen who disobeys its laws likewise refuses to honor its outcome.

So disobeying a law passed by democratic procedures takes on a significance it wouldn’t otherwise have. This holds even for laws that don’t help the state perform essential tasks (the fishing and treasure laws).

Disrespect requires intent. The treasure-keeper doesn’t intend to disrespect anyone. (Swarup)

One needn’t intend disrespect to disrespect. The man who says at a faculty meeting that women belong at home may sincerely venerate women and still disrespect colleagues; the reckless driver intends only to reach the cinema.

Particularity. Isn’t her view a natural-duty view too? (Swarup)

(a) We do owe some things to foreign states (don’t corrupt a foreign judiciary). (b) The right to a democratic say is held only within a community, the people granted a say in that process. Swedes have no right to dictate laws to Canadians who have no say in Sweden, so a Canadian at home doesn’t disrespect Swedes by disobeying Swedish law. Stickiness: fellow Canadians’ rights persist even if she’s in Australia, so the Canadian tax duty persists.

Laws passed before I was born. I had no say. (Swarup)

“Say” includes the power to change or repeal. Present citizens have democratic control over old laws.

Annexation (Simmons). The U.S. annexes Mexican land and enfranchises residents. Are they bound? (Swarup)

They have a pro tanto duty (the ground is present) that is easily overridden by the circumstances. Compare a promise to an abuser: a real pro tanto obligation, defeated. Restorative justice by the state could change the all-things-considered result. If the state didn’t enfranchise them, it isn’t democratic, so no pro tanto duty at all.

Unjust democratic state (routinely violates basic liberties).

A pro tanto duty exists, but is outweighed by the natural duty to oppose injustice: routine compliance helps entrench its ability to perpetuate injustice. So you generally aren’t required, all things considered, to obey even its non-unjust laws if you can resist without serious cost.

Egregiously unjust laws in a reasonably just democracy. (Swarup)

Two routes: (a) a pro tanto duty exists but is defeated by the duty to oppose injustice, or (b) which she prefers for rights-violating laws: there’s no right to democratically pass such laws, since the democratic say doesn’t outrank other basic rights. So no pro tanto duty at all, and no need to apologize or justify disobeying.

Tolerably unjust laws (such as a flat tax). (Swarup)

She accepts the implication: a pro tanto duty exists and normally you’re all things considered required to obey. She says that isn’t unpalatable.

Deeply unjust, nondemocratic (slave state, apartheid, dictatorship)

• Pro tanto duty: No. The laws don’t come from a process that commands respect, even the just ones.

• You might still have to follow some laws for other reasons (driving on the left, to avoid endangering others), but that isn’t political obligation.

Deeply unjust, democratic

• Pro tanto duty: Yes (except basic-rights-violating laws).

• Generally not required: outweighed by the natural duty to oppose injustice.

Reasonably just democracy, egregiously unjust law (e.g., separating migrant toddlers from parents) (Swarup)

• Pro tanto duty: No for rights-violating laws (no right to pass them).

• Not required; no apology owed. Other laws of the state keep their pro tanto force.

Reasonably just democracy, tolerably unjust law (e.g., a flat tax if the poor can still afford a decent life)

• Pro tanto duty: Yes

• Normally yes you should obey

Objective not belief-based

Whether you have a pro tanto duty depends on whether the law really is egregiously unjust, not on what you believe. Hard cases exist. If they’re common, you may in fact live in a deeply unjust state; if rare, the view still guides action. Her advice: obey generally, but if struck by a law’s seeming extreme injustice, “she has some thinking to do.”

Generality

Simmons’s adequacy test: the theory should imply that most or many citizens in most or many states are bound. Hers meets it today because many states (about 53%, citing Polity IV data) are democratic, and there’s a path back if democracy slips.

Dual citizens

• may have conflicting pro tanto duties; that’s no more problematic than conflicting promises.

All things considered

What you ought to do after weighing every relevant duty and reason.

Biconditional

“P if and only if Q.” P is necessary and sufficient for Q.

Intervening act (novus actus)

A later act or event that, in the law’s metaphor, “breaks the chain of causation.” HH: free, voluntary acts and coincidences do; mere circumstances don’t.

Negative vs. positive peace (King)

Negative peace: absence of tension. Positive peace: presence of justice.

Philosophical anarchism

The view that being legally required gives no moral presumption of compliance.

Recognition respect (Darwall)

A disposition to weigh something appropriately in one’s deliberations and act accordingly.