David Enoch | The Hebrew University of Jerusalem (original) (raw)

Papers by David Enoch

The Philosophical Review, Apr 1, 2020

You may have your worries about consent-perhaps it's not as magical as some people seem to think-... more You may have your worries about consent-perhaps it's not as magical as some people seem to think-and some of the worries about consent are precisely the topic of this article. But the starting point has to be that consent-sometimes, at least in nonproblematic cases-is extremely important. This is true in the private as well as the political sphere. Even if not entirely magical, still consent (or something in its very close vicinity) "turns a rape into love-making, a kidnapping into a Sunday drive, a battery into a football tackle, a theft into a gift, and a trespass into a dinner party" (Hurd 1996: 122). My consent-or perhaps my free, autonomous, informed consent-affects, for instance, what it's morally permissible for you to do to me. It also affects what the law should say of our interaction, and often, what it does say. Consent is a big deal. 1 Natalie Stoljar has been extremely helpful both in introducing me to some of the relevant literature and in correspondence, when I tried some of my initial ideas on her. For discussions and comments on earlier versions I am grateful to

Proceedings of the Aristotelian Society, 2016

Draft-feel free to quote but please check to see if there are changes in a (hopefully) published ... more Draft-feel free to quote but please check to see if there are changes in a (hopefully) published version.] You've been battling a drinking problem, and-in the last few months-successfully. At a departmental reception, you show strength of will and again drink nothing, but a colleague accidentally spills some wine on your sleeve. When you're back home, your partner-smelling the alcohol-believes you're drinking again. Naturally, you are offended: Not necessarily by something your partner does or says, or will do, or is even disposed to do, but by their belief about you, it's their belief that hurts you, that you may resent, that you may be expecting an apology for .

SSRN Electronic Journal, 2019

SSRN Electronic Journal, 2015

Public reason theorists routinely make seemingly epistemological claims. They talk about justifyi... more Public reason theorists routinely make seemingly epistemological claims. They talk about justifying principles to others 1 , about the uncertainty with which we should hold our evaluative commitments 2 , about reasonable persons and comprehensive doctrines 3 , about a morallypolitically motivated higher epistemic standard 4 , about intellectual modesty 5 , and of course, about the burdens of judgment: that is, Rawls's suggested explanations for the widespread moral and political disagreement we see, even among the reasonable 6. It certainly seems like epistemological claims are being made here. What exactly are they, then? How are they related to contemporary discussions in epistemology proper, so to speak? Most importantly, can the epistemological commitments of the public reason tradition in political philosophy-whatever exactly they are-withstand criticism? Unfortunately, and for reasons that are not entirely clear to me, public reason theorists do very little to explain-let alone defend-their epistemological commitments 7. In this paper I do some of this work for them, though with a critical twist. I try to understand what the 8 This qualification is important. It may be argued (it has been, by Raz, 1998) that all justification is by its nature accessible to all. If so, the accessibility requirement is always trivially satisfied. Public reason accounts are characterized by a non-trivial accessibility requirement. 9 For characterizations of the public reason tradition, see Quong (2013), Vallier and D'agostino (2013). See also my "Against Public Reason" (forthcoming). 10 There is here an important distinction between the public-reason requirement as applied to state action, perhaps as a necessary condition for legitimacy, and the requirement addressed at reasonable citizens, not to rely in the public sphere on "private", or non-accessible considerations. Leland and van Wietmarschen (2012, 724, footnote 5) are clear about the distinction, and emphasize that they only discuss the latter. I will discuss both, returning to the explicit distinction between them when needed.

Jerusalem Review of Legal Studies, 2012

SSRN Electronic Journal, 2020

In responding to Prof. Allen's paper, I make several general methodological points: about the use... more In responding to Prof. Allen's paper, I make several general methodological points: about the use of hypothetical cases, about the point of theorizing, and about the role of idealization. Then I make some more specific points about his claims about (and against) previous work on statistical evidence.

Social Science Research Network, May 16, 2015

Specific moral facts (like the fact that you ought to send the paper by that deadline) seem to be... more Specific moral facts (like the fact that you ought to send the paper by that deadline) seem to be grounded in relevant natural facts (that you promised), together with relevant moral principles (that you ought to keep your promises). This picture—according to which moral principles play a role in grounding specific moral facts—is a very natural one, and it may be especially attractive to non-naturalist, robust realists. A recent challenge from Selim Berker threatens this picture, though. Moral principles themselves seem to incorporate grounding claims, and it’s not clear that this can be reconciled with according the principles a grounding role. This chapter responds to Berker’s Challenge, utilizing a (moderate) grounding pluralism. In particular, it argues that distinguishing between normative and metaphysical grounding is the key to saving the natural picture. It also shows how such a distinction is one that you have a reason to endorse independently of this challenge, as it does ...

Philosophical Issues, 2021

Legal Theory, 2018

ABSTRACTIn a recent paper Christopher Heath Wellman argues that—with some important qualification... more ABSTRACTIn a recent paper Christopher Heath Wellman argues that—with some important qualifications—there are no procedural rights. And it's not as if he is squeamish about his examples: even someone who is “convicted” and “punished” by lottery is not wronged—their rights are not violated—if in fact they are guilty of the relevant crime. I respond, rejecting Wellman's conclusion and argument. I also show how the discussion has important wider implications.

SSRN Electronic Journal, 2021

Philosophical Studies, 2020

This paper responds to a recently popular objection to non-naturalist, robust moral realism. The ... more This paper responds to a recently popular objection to non-naturalist, robust moral realism. The objection is that moral realism is morally objectionable, because realists are committed to taking evidence about the distribution (or non-existence) of non-natural properties to be relevant to their first-order moral commitments. I argue that such objections fail. The moral realist is indeed committed to conditionals such as “If there are no non-natural properties, then no action is wrong.” But the realist is not committed to using this conditional in a modus-ponens inference upon coming to believe its antecedent. Placing the discussion in a wider epistemological discussion—here, that of “junk-knowledge”, and of how background knowledge determines the relevance of purported evidence—shows that this objection does not exert a price from the realist.

SSRN Electronic Journal, 2019

What you ought to do is sensitive to circumstances that are not under your control, or to luck. S... more What you ought to do is sensitive to circumstances that are not under your control, or to luck. So plain luck is often morally significant. Still, some of us think that there's no moral luck - that praiseworthiness and blameworthiness are not sensitive to luck. What explains this asymmetry between the luck-sensitivity of ought-judgments and the luck-insensitivity of blameworthiness and praiseworthiness judgments? In this paper I suggest an explanation, relying heavily on the analogy between rational luck and moral luck. I argue that some rational assessments - like how well one plays the hand one's dealt - are luck-insensitive; that we have reason to believe some moral evaluations are closely analogous to such luck-insensitive rational assessments, and furthermore that blameworthiness and praiseworthiness judgments are probably precisely those luck-insensitive moral evaluations. I also draw an implication regarding agent-regret.

Topoi, 2017

In Chapter 2 of Taking Morality Seriously, I put forward an argument for morality's objectivi... more In Chapter 2 of Taking Morality Seriously, I put forward an argument for morality's objectivity that is based on the (purported) first-order implications of denying such objectivity. In her contribution to this volume, Mancuso criticizes that argument. This paper is a response to some of her main points.

Canadian Journal of Philosophy, 2017

This is a contribution to the symposium on Tim Scanlon’s Being Realistic about Reasons (2014). We... more This is a contribution to the symposium on Tim Scanlon’s Being Realistic about Reasons (2014). We have two aims here: First, we ask for more details about Scanlon’s meta-metaphysical view (about his notion of a domain, his criterion of existence, his ambition to remain ontologically thin, and on the role of pragmatic considerations in Scanlon’s picture), showing problems with salient clarifications. And second, we raise independent objections to the view – to its explanatory productivity, its distinctness, and the argumentative support it enjoys.

SSRN Electronic Journal, 2015

6. Conclusion And so, we have a rather full picture now. Often, moral deference is problematic fo... more 6. Conclusion And so, we have a rather full picture now. Often, moral deference is problematic for reasons that I have set aside by stipulation in this paper (for instance, worries about the abuse of power, worries about disagreement among the purported experts, and ...

The Philosophical Review, Apr 1, 2020

Proceedings of the Aristotelian Society, 2016

SSRN Electronic Journal, 2019

SSRN Electronic Journal, 2015

Jerusalem Review of Legal Studies, 2012

SSRN Electronic Journal, 2020

Social Science Research Network, May 16, 2015

Philosophical Issues, 2021

Legal Theory, 2018

SSRN Electronic Journal, 2021

Philosophical Studies, 2020

SSRN Electronic Journal, 2019

Topoi, 2017

Canadian Journal of Philosophy, 2017

SSRN Electronic Journal, 2015

Recent political developments leave liberal elites heart-broken and rather desperate. Why is it t... more Recent political developments leave liberal elites heart-broken and rather desperate. Why is it that the masses keep making poor, morally unacceptable, anti-democratic, irrational choices?

Among the many voices heard in this context, there are also those criticizing those elites from the left. The elites, these voices imply, are guilty not just of past wrongs that have gotten us here, but also of patronizing the masses right now, arrogantly failing to take seriously the masses and their concerns.

I argue that such complaints – perhaps appearances to the contrary notwithstanding – are every bit as patronizing and arrogant in their attitudes towards the masses they claim to respect, and proceed to discuss the question whether the elites should reason with the masses, or manage them (spoiler alert: both). This practical discussion leads to more theoretical ones about justification and excuse in the public sphere, practical and epistemic reasons for belief, and ideal and non-ideal theory in political philosophy.

Political philosophy in recent years has seen a surge in interest in a family of related methodol... more Political philosophy in recent years has seen a surge in interest in a family of related methodological issues . Questions about the significance, and purported priority, of ideal over non-ideal theory; about the constraints, if any, that feasibility considerations pose for normative political philosophy (or, viewed in the opposite direction, whether there’s any flaw to utopian, or somewhat utopian, political philosophy); and questions about the degree to which fundamental political principles are sensitive to facts – such questions have taken center stage.
In this paper, I try to add clarity – and argumentation – to some of these discussions. I defend the following claims: While there should be no problem with doing ideal theory in its classical, Rawlsian sense, there is no problem in doing non-ideal theory either, and claims about the priority of ideal theory are neither clear nor easily defensible; considerations of how likely it is that an agent will act according to a normative claim in political philosophy are strictly speaking irrelevant to assessing whether they ought (and so, to assessing the truth of the suggested normative claim); still – now tying together the discussions of utopianism and of ideal theory – in assessing the truth of a normative claim applied to one agent, considerations about how likely other agents are to comply is relevant, and indeed, this kind of case is of central importance in political philosophy; and the discussion of fact-sensitivity, when appropriately understood, has nothing at all to do with either the discussion of ideal theory or that of utopianism.

I have to confess I find it hard to get excited over general jurisprudence. I don’t find it hard ... more I have to confess I find it hard to get excited over general jurisprudence. I don’t find it hard to get excited about many philosophical topics. I think that by now I’ve been around the jurisprudence circles for long enough to be reasonably confident that it’s not just about me, and to try to explain my doubts. This is what I try to do in this paper.
In this paper, I compare general jurisprudence to metaethics, showing how the former is not interesting in the ways the latter is. A major part of what makes metaethics interesting is the full-blooded normativity of morality. The law, however, is not full-bloodedly normative. And while it is formally normative – it generates criteria of correctness – this is not remotely enough to render jurisprudence interesting. I also note that response-dependence – a highly controversial view in metaethics – is the obvious way to go in jurisprudence, and that general jurisprudential issues are unlikely to have implications for normative legal theory.

Deontological constraints, it is often observed, are such that they ought not to be violated, at ... more Deontological constraints, it is often observed, are such that they ought not to be violated, at least sometimes, even in order to minimize constraint violations. This feature of deontological constraints requires agent-relativity – there must be a way in which my own violations carry more weight with me than others’. Still, if someone knows that they can either bring about one violation or five, if they pause to ask “But wait, will the single violation be mine?” their question, I want to insist, is inappropriate, it is inappropriately self-centered.
Utilizing an analogy from the epistemic case of peer disagreement (where giving more weight to one’s own belief compared to one’s peer seems chauvinistic, but where some believer-relativity can nevertheless still be maintained), I argue that the right way for deontologists to think about agent-relativity is not in terms of the considerations we take into account in deliberation, but rather as something coloring the deliberating itself. In this way, agent-relativity has to be backgrounded.
In this paper, I defend this picture, and pursue some of its implications – for how we should think of the paradox of deontology, the intending-foreseeing distinction, cases of my own future constraint violations, and the project of consequentializing deontology.

Everyone suspects – perhaps knows, but at least suspects – that nudging offends against the nudge... more Everyone suspects – perhaps knows, but at least suspects – that nudging offends against the nudged’s autonomy. But it has proved rather difficult to say why. In this paper I offer a new diagnosis of the tension between even the best cases of nudging and the value of autonomy. If true, this diagnosis improves our understanding of nudging, of course, but it also improves our understanding of the value of autonomy.
Relying on the distinction between autonomy as sovereignty and autonomy as non-alienation, I show that nudging need not offend against either. But it does sever the tie between them, the possibility of achieving non-alienation *in virtue* of having sovereignty. Analogies to common themes in virtue epistemology help to establish this point.

If Badguy threatens Goodguy with harm, and Goodguy consents to giving his money to Badguy (to avo... more If Badguy threatens Goodguy with harm, and Goodguy consents to giving his money to Badguy (to avoid the harm), Goodguy's consent is invalid because coerced. But if under Badguy's coercive threat Goodguy proceeds to consent to paying someone else (or to hiring a bodyguard), the consent may very well be valid. The challenge is to explain this difference. In this paper I argue that the way forward is to recognize that the content of consent is contrastive-one doesn't just agree to giving the money; rather, one consents to giving-themoney-rather-than-some-alternative. And then the normative upshot of the relevant consent depends on what the morally relevant contrast is, which in turn depends on who is (before the relevant interaction) entitled to what against whom. We have, I think, independent reasons to understand consent contrastively, and once we do, we can solve the puzzle of third party coercion with ease.

Philosophical Studies, 2020

This is a book symposium contribution, on David Estlund’s forthcoming Utopophobia: On the Limits ... more This is a book symposium contribution, on David Estlund’s forthcoming Utopophobia: On the Limits (If Any) of Political Philosophy, tentatively forthcoming in Philosophical Studies.
I argue – in some parts, following my “Against Utopianism: Noncompliance and Multiple Agents”, in others going beyond that paper – that despite being right about some central issues (most centrally, that a judgment that society ought to act in some way is not refuted by the fact that the society won’t), still Estlund fails to exonerate his utopianism: I argue that Estund’s arguments purportedly showing the priority of aspirational theory over concessive theory fail; I argue against Estlund’s attempts to establish the practical value of ideal theory (conceding, of course, that it may have intellectual value, and that this may be value enough); and I argue that Estlund misdiagnoses some central anti-utopian sentiments, and that those, when properly diagnosed, are well-taken. I conclude with a diagnostic hypothesis of my own – that what motivates Eslund, despite protests to the contrary, is an unsupportable optimism about humanity.

The Routledge Handbook of Practical Reasons (Chang and Sylvan eds.), 2020

Constitutivism, at a first approximation, is the thought "that we can derive a substantive accoun... more Constitutivism, at a first approximation, is the thought "that we can derive a substantive account of normative reasons for actions… from abstract premises about the nature of action and agency." (Smith, 2015, 187). And it is a natural and attractive thought, because it promises to deliver the normativity of practical reasons – and perhaps of morality with it – in metaphysically and epistemically unproblematic ways. It also, however, faces objections, including my "Shmagency" objection.
In recent years, Michael Smith has been developing a distinctive constitutivist view, one that naturally follows in the footsteps of his previous work, and that is, if he's right, better placed to respond to the objections troubling earlier constitutivist attempts. This chapter is a critical examination of Smith's constitutivism, engaging both some of its unique features, and the ways in which it is, after all, an instance of the more general constitutivist family, and so vulnerable to the Shmagency objection. Critically engaging with Smith's version of constitutivism thus helps to better understand both the prospects and the problems for constitutivism in general.

This paper is a response to David Sobel's response to my "Why Idealize?". Because this looks like... more This paper is a response to David Sobel's response to my "Why Idealize?".
Because this looks like history of philosophy, I need to explain: "Why Idealize" was published in 2005, and Sobel's reply in 2009. I proceeded to immediately write this response, and send it to Ethics. After getting a rejection (and after some helpful correspondence with David Sobel), I let it be. But Sobel's paper has now been included in his recent collection "From Valuing to Value", and I've had another look at the exchange as I'm writing a review on Sobel's book (as it happens, for Ethics). I still think my response is of value, so I thought I'd make it available here.

On a natural picture (one that is natural in general, but is especially attractive for Robust Rea... more On a natural picture (one that is natural in general, but is especially attractive for Robust Realists), particular moral facts are partly grounded in the morally relevant natural facts, and partly in moral principles. However, Selim Berker has recently challenged that picture by arguing that a plausible understanding of the content of moral principles precludes them from doing any grounding work.
This paper is a response to Berker. Utilizing a comparison with legal facts and how they are grounded in legal norms or principles, I argue that accepting grounding pluralism (as we should) there is no problem in moral principles (and legal ones, and many many others) grounding particular moral (and legal, and ...) facts.