Barbara Fried

Stanford University | SU · Stanford Law School

By banishing decision-making in the face of uncertainty (risk) to the margins of moral philosophy, nonconsequentialists have obscured the quotidian, unavoidable, and ubiquitous tradeoffs we face in almost every arena. The chapter explores the historical antecedents of the marginalization of risk in contemporary moral philosophy, and details how non...

Left-libertarianism marries a very thin reading of Lockean self-ownership with an extraordinarily expansive reading of Locke’s famous proviso that those who appropriate common resources must leave “enough, and as good” for all others. Left-libertarians have argued that those twin commitments justify a redistributive system that is egalitarian in ef...

This chapter considers Scanlonian contractualism as presented in T. M. Scanlon’s What We Owe to Each Other. Scanlonian contractualism requires us to assess whether an action could reasonably have been rejected from an ex post epistemic perspective—that is to say, after the actual consequences of the act are known. For decisions made under epistemic...

The essays collected in this book take stock of the nonconsequentialist project over the past fifty years, in two key areas. The first part focuses on the moral “duty not to harm” others. Under a suitably broad definition of harm, that duty encompasses most of the restrictions imposed on individual conduct in the secular, liberal state. It examines...

This chapter examines the recent revival of a corrective justice approach to tort law. Seeking to reclaim tort theory from the now dominant welfarist perspective, corrective justice theorists like Ernest Weinib, Arthur Ripstein, Jules Coleman, and John Goldberg have stressed the corrective justice roots of the rules governing compensation for “wron...

Opponents of redistributive taxation have long supported a “benefits” tax, which would tax individuals in accordance with the market value of the benefits they receive from the government. The question is, what market? A perfectly competitive market in which goods and services are priced at their marginal cost of production? A quasi-monopolistic ma...

In A Theory of Justice , Rawls acknowledged that rational choice behind the veil of ignorance would generally yield average utilitarianism—John Harsanyi’s conclusion fifteen years earlier. The question is, why would it yield a different conclusion in the Original Position? If, as Rawls assumed, the representative person would be infinitely risk ave...

Over the past fifteen years, a number of scholars sympathetic to Scanlonian contractualism have sought to rescue it from the paradox created by Scanlon’s original ex post version: that the wrongness of an act depends on its consequences. Their proposed solution, “ex ante contractualism,” retains the most distinctive feature of Scanlonian contractua...

The essays collected in this book take stock of the nonconsequentialist project over the past fifty years, in two key areas. The first part focuses on the moral “duty not to harm” others. Under a suitably broad definition of harm, that duty encompasses most of the restrictions imposed on individual conduct in the secular, liberal state. It examines...

In Anarchy, State, and Utopia , Nozick relies on his principle of Justice in Transfer to explain why the state may not tax income from labor or property. Applying Justice in Transfer to his famous Wilt Chamberlain example, he argues that Wilt owns the money he was paid to play basketball because it was voluntarily transferred to him by his fans, wh...

The trolley problem and cognate hypotheticals have played an outsized role in nonconsequentialist thought over the past fifty years. Taking Parfit’s On What Matters as a jumping-off point, the chapter argues that the features common to trolley problems—focusing only on determinate consequences, ignoring consequences to off-stage actors, reliance on...

Nozick’s libertarian theory of property rights, laid out in Part II of Anarchy, State and Utopia , has been subject to innumerable internalist and external critiques. But the book read as a whole poses a deeper puzzle. Parts I, II, and III present at least three mutually inconsistent theories of property rights: utilitarian; libertarian; and anythi...

Rawls’s Theory of Justice has had two parallel lives in political theory. The first—the version Rawls wrote—is a response to utilitarianism’s failure to take seriously the separateness of persons. The second—the unwritten version “received” by its general audience—is a response to libertarianism’s failure to take seriously our moral obligations to...

The leverage the most fortunate possess to extract a favourable deal for themselves in hypothetical social contractarian bargains depends on what exit options they are endowed with. Social contractarian arguments typically enlarge their exit options by suppressing many of the social constraints on exit they would face in the real world. The result...

By banishing decision-making in the face of uncertainty (risk) to the margins of tort theory, nonconsequentialist legal philosophers have obscured the quotidian, unavoidable, and ubiquitous tradeoffs we face in almost every arena of life. This article explores the historical antecedents of the marginalization of risk in contemporary moral philosoph...

Libertarians have long argued for a “benefits tax,” which sets tax rates to approximate the shadow market price for the public goods each taxpayer consumes. Libertarians have assumed that because consumption of explicit public goods does not rise as fast as income or wealth, a benefits tax would likely be regressive. That is to say, the rich would...

When A Theory of Justice was published in 1971, utilitarianism was the game to beat in political philosophy, and Rawls made clear his intention to beat it. The appearance of Nozick’s Anarchy, State and Utopia three years later singlehandedly enshrined libertarianism rather than utilitarianism in the popular imagination as the chief rival to Rawls’s...

This paper was written for a conference on legal transitions. The central question in legal transitions is whether it is appropriate for the government to offset (through grandfathering, direct compensation or other mechanisms) the ex post changes in wealth occasioned by changes in legal rules. Put this way, the government's appropriate response to...

At 30 years' distance, it is safe to say that Nozick's Anarchy, State and Utopia has achieved the status of a classic. It is not only the central text for all contemporary academic discussions of libertarianism; with Rawls's A Theory of Justice, it arguably frames the landscape of academic political philosophy in the second half of the 20th century...

When A Theory of Justice was published in 1971, utilitarianism was the game to beat in political philosophy, and Rawls made clear his intention to beat it. The appearance of Nozick’s Anarchy, State and Utopia three years later singlehandedly enshrined libertarianism rather than utilitarianism in the popular imagination as the chief rival to Rawls’s...

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for ‘wrongful’ acts reflect corrective justice rather than welfarist norms. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from s...

In his 1980 Contract as Promise, Charles Fried famously argued that in the event one side fails to perform on the main subject of a contract, we should vindicate the moral bindingness of promises by giving the nonbreacher expectation damages. Over the years, other liberal contract theorists have argued just as strenuously for specific performance o...

For the past forty years, a significant portion of nonconsequentialist moral philosophy has been devoted to refining our moral intuitions about the harms to others we may or may not causally bring about through our acts or omissions. Discussion has focused almost exclusively on trolley‐type hypotheticals that share the following features: The conse...

In the almost forty years since Anarchy, State and Utopia has appeared, Nozick's libertarian theory of property rights, laid out in Part II of the book, has been subject to innumerable internalist critiques. In this paper, I argue that the Nozick of Parts I, II and III, read together, holds at least three mutually inconsistent theories of property...

This paper examines the efforts of contractualists to develop an alternative to aggregation to govern our duty not to harm (duty to rescue) others. I conclude that many of the moral principles articulated in the literature seem to reduce to aggregation by a different name. Those that do not are viable only as long as they are limited to a handful o...

a mental heuristic is a shortcut (means) to a desired end. in the moral (as opposed to factual) realm, the means/end distinction is not self-evident: how do we decide whether a given moral intuition is a mere heuristic to achieve some freestanding moral principle, or instead a freestanding moral principle in its own right? i discuss sunstein's solu...

One of the most notable developments in political philosophy in the past thirty years, starting with Rawls, has been the ascendency of hypothetical social contractarian arguments for deriving the contours of a just state. This paper examines the construction of exit options in such arguments, focusing on one set of constraints on exit out of an exi...

This collection of essays is dedicated to the memory of the late Harvard philosopher Robert Nozick, who died in 2002. The publication of Nozick's Anarchy, State, and Utopia in 1974 revived serious interest in natural rights liberalism, which, beginning in the latter half of the eighteenth century, had been eclipsed by a succession of antithetical p...

The publication in 2000 of Peter Vallentyne and Hillel Steiner's elegant two-volume collection of essays on Left-Libertarianism formally marks the emergence over the past two decades of a theory of distributive justice that seeks to harness the premises of the libertarian right to the political agenda of the egalitarian left. Its proponents have si...

The article considers a surprisingly resilient argument, going back to Adam Smith, for the fairness of proportionate taxation: that proportionate taxation represents the fair way to divide the surplus value produced by social cooperation among all of society s members. The article considers two recent variants on that argument, one by Richard Epste...

This article examines one standard libertarian defense of proportionate taxation: that it is the obvious means to achieve a fair division of the social surplus generated by social cooperation. Focusing on the version of the argument developed in David Gauthier's Morals by Agreement, the article concludes that rather than leading to proportionate ta...

Private savings which are transferred intergenerationally through bequests make up a substantial portion of the U. S. capital stock. Most of these bequests do not get spent down by heirs and in fact usually increase in size as they are transferred to successive generations. In addition, bequests are over-whelmingly concentrated among the very wealt...

Responding to Seana Valentine Shiffrin, The Divergence of Contract and Promise, 120 HARV. L. REV. 708 (2007). The crux of the intermediate position Professor Shiffrin sets out in her characteristically exacting and provocative Article is this: the parties to a contract should be free to choose any terms they want, within the normal bounds of legali...