Harmful Thoughts

Harmful Thoughts: Essays on Law, Self, and Morality

MEIR DAN-COHEN
Copyright Date: 2002
Pages: 320
https://www.jstor.org/stable/j.ctt7shdn
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    Harmful Thoughts
    Book Description:

    In these writings by one of our most creative legal philosophers, Meir Dan-Cohen explores the nature of the self and its response to legal commands and mounts a challenge to some prevailing tenets of legal theory and the neighboring moral, political, and economic thought. The result is an insider's critique of liberalism that extends contemporary liberalism's Kantian strand, combining it with postmodernist ideas about the contingent and socially constructed self to build a thoroughly original perspective on some of the most vital concerns of legal and moral theory.

    Dan-Cohen looks first at the ubiquity of legal coercion and considers its decisive impact on the nature of legal discourse and communication, on law's normative aspirations and claim to obedience, and on the ideal of the rule of law. He moves on to discuss basic values, stressing the preeminence of individual identity and human dignity over the more traditional liberal preoccupations with preference-based choice and experiential harm. Dan-Cohen then focuses more directly on the normative ramifications of the socially constructed self. Fundamental concepts such as responsibility and ownership are reinterpreted to take account of the constitutive role that social practices--particularly law and morality--play in the formation of the self.

    Throughout, Dan-Cohen draws on a uniquely productive mix of philosophical traditions and subjects, blending the methods of analytic philosophy with the concerns of Continental philosophers to reconceive the self and its relation to ethics and the law.

    eISBN: 978-1-4008-2505-9
    Subjects: Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-x)
  4. INTRODUCTION
    (pp. 1-10)

    The following essays were written by a number of quite different writers over a long period of time. Binding the essays in one volume does not guarantee them greater unity than that guaranteed to their several authors by the mere fact that at different times they have all occupied the same body. Nonetheless, it is hoped that in both cases a measure of unity or at least coherence has been attained. The unity, such as it is, is both substantive and temperamental. The purpose of this introduction is accordingly to track some interrelated themes and to confess some idiosyncrasies of...

  5. PART ONE COERCION AND COMMUNICATION
    • CHAPTER ONE LAW, COMMUNITY, AND COMMUNICATION
      (pp. 13-36)

      I follow the fashion of listing no more, and no less, than three items in a title. If it were not for this fashion, my title would have included two more items—interpretation and organization. I shall relate these concepts in the following way: I shall pair community with interpretation and organization with communication. An important strand in contemporary legal and social theory—I have in mind primarily the work of Ronald Dworkin in this country and Jürgen Habermas in Europe—is fixated on the first couple consisting of community and interpretation. In this it gives us only a partial...

    • CHAPTER TWO DECISION RULES AND CONDUCT RULES: ON ACOUSTIC SEPARATION IN CRIMINAL LAW
      (pp. 37-93)

      It is an old but neglected idea that a distinction can be drawn in the law between rules addressed to the general public and rules addressed to of officials. The neglect of this idea results, I think, from a widely accepted but oversimplified conception of the relationship between the two kinds of rules. This common view tends to understate both the analytical soundness and the jurisprudential significance of the distinction. In what follows, I criticize the prevailing view and offer another one in its place. The proposed account takes seriously the distinction between the two kinds of rules and is...

    • CHAPTER THREE IN DEFENSE OF DEFIANCE
      (pp. 94-122)

      Attitudes to authority vary. Authority often attracts allegiance and compliance, but it also provokes defiance and resentment. Philosophers who affirm authority and spell out the conditions of its legitimacy articulate the former, positive, attitudes to it; whereas those who deny the very possibility of binding authority and proclaim philosophical anarchism of one sort or another give vent, and priority, to the negative attitudes It is of course possible that one or the other of the opposing camps has it right, so that the reactions to authority that underlie the other camp’s views should be dismissed as irrational and aberrant. But...

  6. PART TWO BASIC VALUES
    • CHAPTER FOUR CONCEPTIONS OF CHOICE AND CONCEPTIONS OF AUTONOMY
      (pp. 125-149)

      Freedom of choice is an important liberal ideal, both in itself and as a constituent of the ideal of autonomy. Choice and autonomy in this way mutually reinforce one another: we value autonomy in part because of the freedom to choose it validates, and we value free choice in part because it contributes to our autonomy. However, the conception of choice that plays this normative role largely originates in the theory of rational choice, the area in which choice received greatest attention and was given the most detailed and rigorous articulation. That conception of choice, at least in its broad...

    • CHAPTER FIVE DEFENDING DIGNITY
      (pp. 150-171)

      I will make a few notes in the margins of two large and seemingly unrelated developments that are of vital importance to the criminal law: a growing disaffection with the harm principle and the challenge of multiculturalism. The harm principle presents itself as a morally neutral standard that can set rational limitations on the scope of the criminal law. The disaffection results from a mounting recognition that the pretence of neutrality is specious, the limitations illusory, and that the principle fails to define and properly delimit criminal liability. This conclusion invites a search for an alternative. The difficulty of such...

    • CHAPTER SIX HARMFUL THOUGHTS
      (pp. 172-196)

      If there is one article of faith all liberals share, it is quite definitely an aversion to thought control. This aversion is closely linked to another fundamental liberal tenet, the harm principle: law should concern itself exclusively with preventing harms that people may inflict on each other; people’s thoughts ought to remain their own affair. Although the inviolability of thoughts and the harm principle reinforce each other, the connection between them is not as simple as may appear at first sight.

      In a well-known article,¹ Professor Herbert Morris probes one dimension of this connection: the interest that criminal law may...

  7. PART THREE BOUNDARIES OF SELF
    • CHAPTER SEVEN RESPONSIBILITY AND THE BOUNDARIES OF THE SELF
      (pp. 199-245)

      Legal responsibility is not imposed in a moral or a social void. Although the ascription of responsibility is more structured in law than it is in general outside of it, no sharp conceptual division exists. To understand legal responsibility, we must understand responsibility. The most important source of such understanding is morality. Blaming—that is, ascribing moral responsibility for the negative effects of one’s behavior—has come to be understood in terms of what I call thefree will paradigm. In the free will paradigm, responsibility is grounded in the agent’s capacity to choose her actions freely. This understanding of...

    • CHAPTER EIGHT INTERPRETING OFFICIAL SPEECH
      (pp. 246-263)

      My starting point is a narrow but persisting problem: the role, if any, of legislative intent in statutory interpretation. But though this is my starting point, it is not my main target. My aim is instead to identify and characterize a wider category of speech—I call itofficial speech—of which legislation forms just one part. Placing the interpretation of statutes in such a broader context puts the ongoing debate in a new light. The contribution is, however, not in the form of added ammunition to one of the contending parties. Rather, my analysis will take us outside that...

    • CHAPTER NINE THE VALUE OF OWNERSHIP
      (pp. 264-302)

      To understand private property, it is generally assumed, we must recognize the contribution objects make to human life. On the prevailing view, ownership is valuable only insofar as its subject matter is of value: in the order of valuation, the value of objects comes first, that of owning them comes second. This assumption correlates with another pervasive premise. It is generally taken for granted that ownership is a right or perhaps more commonly a bundle of rights which define normative relationships among people with respect to an object. These two premises are related through a dominant account of rights, according...

  8. INDEX
    (pp. 303-309)