Cass Sunstein Legal philosophy
What is his theory
What is Cass Sunstein's theory?
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping changes to the law or decisions that have broad-reaching effects. Some view him as liberal, despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts, as well as providing strongly maintained theoretical support for the death penalty.  Much of his work also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate understanding of how people will respond to legal intervention.  Sunstein has collaborated with academics who have training in behavioral economics, most notably Daniel Kahneman, Richard Thaler, and Christine M. Jolls, to show how the theoretical assumptions of law and economics should be modified by new empirical findings about how people actually behave.  According to Sunstein, the interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him. "There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.  Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism. In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering people's decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect." CANNOTANSWER
Sunstein is a proponent of judicial minimalism,
Cass Robert Sunstein (born September 21, 1954) is an American legal scholar known for his studies of constitutional law, administrative law, environmental law, and law and behavioral economics. He is also The New York Times best-selling author of The World According to Star Wars (2016) and Nudge  (2008). He was the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration from 2009 to 2012.

As a professor at the University of Chicago Law School for 27 years, he wrote influential works on regulatory and constitutional law, among other topics. Since leaving the White House, Sunstein has been the Robert Walmsley University Professor at Harvard Law School. In 2014, studies of legal publications found Sunstein to be the most frequently cited American legal scholar by a wide margin.

Early life and education
Sunstein was born on September 21, 1954, in Waban, Massachusetts, to Marian (née Goodrich), a teacher, and Cass Richard Sunstein, a builder, both Jewish. He graduated in 1972 from Middlesex School. He has said that as a teenager, he was briefly infatuated with the works of Ayn Rand, "[b]ut after about six weeks of enchantment, her books started to make me sick. Contemptuous toward most of humanity, merciless about human frailty, and constantly hammering on the moral evils of redistribution, they produced a sense of claustrophobia."

After high school, Sunstein attended Harvard University. He was a member of the varsity squash team and an editor of the Harvard Lampoon, and graduated in 1975 with a Bachelor of Arts magna cum laude. He then attended the Harvard Law School, where he became the executive editor of the Harvard Civil Rights-Civil Liberties Law Review and was a member of the winning team of the Ames Moot Court Competition. He graduated in 1978 with a Juris Doctor magna cum laude.

Career
After law school, Sunstein first clerked for Justice Benjamin Kaplan of the Massachusetts Supreme Judicial Court from 1978 to 1979, then for Justice Thurgood Marshall of the U.S. Supreme Court from 1979 to 1980.

After his clerkships, Sunstein spent one year as an attorney-advisor in the U.S. Department of Justice's Office of Legal Counsel. In 1981, he became an assistant professor of law at the University of Chicago Law School (1981–1983), where he also became an assistant professor in the Department of Political Science (1983–1985). In 1985, Sunstein was made a full professor of both political science and law; in 1988, he was named the Karl N. Llewellyn Professor of Jurisprudence in the Law School and Department of Political Science. The university honored him in 1993 with its "distinguished service" accolade, permanently changing his title to Karl N. Llewellyn Distinguished Service Professor of Jurisprudence in the Law School and Department of Political Science. In 2009, Sunstein was described by fellow Chicago professor Douglas G. Baird as a "Chicago person through and through".

Sunstein was the Samuel Rubin Visiting Professor of Law at Columbia Law School in the fall of 1986 and a visiting professor at Harvard Law School in the spring 1987, winter 2005, and spring 2007 terms. He teaches courses in constitutional law, administrative law, and environmental law, as well as the required first-year course "Elements of the Law", which is an introduction to legal reasoning, legal theory, and the interdisciplinary study of law, including law and economics. In the fall of 2008, he joined the faculty of Harvard Law School and began serving as the director of its Program on Risk Regulation:

The Program on Risk Regulation will focus on how law and policy deal with the central hazards of the 21st century. Anticipated areas of study include terrorism, climate change, occupational safety, infectious diseases, natural disasters, and other low-probability, high-consequence events. Sunstein plans to rely on significant student involvement in the work of this new program.

On January 7, 2009, The Wall Street Journal reported that Sunstein would be named to head the White House Office of Information and Regulatory Affairs (OIRA). That news generated controversy among progressive legal scholars and environmentalists. Sunstein's confirmation was long blocked because of controversy over allegations about his political and academic views. On September 9, 2009, the Senate voted for cloture on Sunstein's nomination as Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget. The motion passed in a 63–35 vote. The Senate confirmed Sunstein on September 10, 2009, in a 57–40 vote.

In his research on risk regulation, Sunstein is known for developing, together with Timur Kuran, the concept of availability cascades, wherein popular discussion of an idea is self-feeding and causes individuals to over weigh its importance.

Sunstein's books include After the Rights Revolution (1990), The Partial Constitution (1993), Democracy and the Problem of Free Speech (1993), Legal Reasoning and Political Conflict (1996), Free Markets and Social Justice (1997), One Case at a Time (1999), Risk and Reason (2002), Why Societies Need Dissent (2003), Laws of Fear: Beyond the Precautionary Principle (2005), Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005), Are Judges Political? An Empirical Analysis of the Federal Judiciary (2005), Infotopia: How Many Minds Produce Knowledge (2006), and, co-authored with Richard Thaler, Nudge: Improving Decisions about Health, Wealth, and Happiness (2008).

Sunstein's 2006 book, Infotopia: How Many Minds Produce Knowledge, explores methods for aggregating information; it contains discussions of prediction markets, open-source software, and wikis. Sunstein's 2004 book, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need It More than Ever, advocates the Second Bill of Rights proposed by Franklin D. Roosevelt. Among these rights are a right to an education, a right to a home, a right to health care, and a right to protection against monopolies; Sunstein argues that the Second Bill of Rights has had a large international impact and should be revived in the United States. His 2001 book, Republic.com, argued that the Internet may weaken democracy because it allows citizens to isolate themselves within groups that share their own views and experiences, and thus cut themselves off from any information that might challenge their beliefs, a phenomenon known as cyberbalkanization.

Sunstein co-authored Nudge: Improving Decisions about Health, Wealth, and Happiness (Yale University Press, 2008) with economist Richard Thaler of the University of Chicago. Nudge discusses how public and private organizations can help people make better choices in their daily lives. Thaler and Sunstein argue that

People often make poor choices – and look back at them with bafflement! We do this because as human beings, we all are susceptible to a wide array of routine biases that can lead to an equally wide array of embarrassing blunders in education, personal finance, health care, mortgages and credit cards, happiness, and even the planet itself.

The ideas in the book proved popular with politicians such as U.S. President Barack Obama, British Prime Minister David Cameron, and the British Conservative Party in general. The "Nudge" idea has also been criticised. Dr Tammy Boyce, from public health foundation The King's Fund, has said:
We need to move away from short-term, politically motivated initiatives such as the 'nudging people' idea, which are not based on any good evidence and don't help people make long-term behavior changes.

Contributing to the anthology Our American Story (2019), Sunstein addressed the possibility of a shared American narrative. He cited the concepts of self-government and equal dignity of human beings, but focused in particular on stories: "an emphasis on what happened before and after the firing shots in Concord and the courageous response of the embattled farmers maintains continuity with the historical facts and offers us something on which we can build."

Sunstein is a contributing editor to The New Republic and The American Prospect and is a frequent witness before congressional committees. He played an active role in opposing the impeachment of Bill Clinton in 1998.

In recent years, Sunstein has been a guest writer on The Volokh Conspiracy blog as well as the blogs of law professors Lawrence Lessig (Harvard) and Jack Balkin (Yale). He is considered so prolific a writer that in 2007, an article in the legal publication The Green Bag coined the concept of a "Sunstein number" reflecting degrees of separation between various legal authors and Sunstein, paralleling the Erdős numbers sometimes assigned to mathematician authors.

He is a member of the American Academy of Arts and Sciences (elected 1992), the American Law Institute (since 1990), and the American Philosophical Society (elected 2010). He received an Honorary Doctorate from Copenhagen Business School.

In February 2020, he wrote an article for Bloomberg titled "The Cognitive Bias That Makes Us Panic About Coronavirus". In it he claimed that "A lot more people are more scared than they have any reason to be" and that "Most people in North America and Europe do not need to worry much about the risk of contracting the disease. That's true even for people who are traveling to nations such as Italy that have seen outbreaks of the disease." He attributed the excessive perceived risk to Probability neglect. At time of publication, there have been 68 confirmed COVID-19 cases in the U.S., including one death, and approximately 1000 new daily cases worldwide, over 300 of which in Europe.

Together with Daniel Kahneman and Olivier Sibony, Sunstein co-authored Noise: A Flaw in Human Judgment, which was published in May 2022. Drawing not least upon legal examples, it treats of unwanted variability in human judgments of the same problem, for instance when court judges recommend vastly different sentences for the same crimes. The book looks both at what 'noise in human judgment' is, how it can be detected and how it can be reduced.

Views

Legal philosophy
Sunstein is a proponent of judicial minimalism, arguing that judges should focus primarily on deciding the case at hand, and avoid making sweeping changes to the law or decisions that have broad-reaching effects. Some view him as liberal, despite Sunstein's public support for George W. Bush's judicial nominees Michael W. McConnell and John G. Roberts, as well as providing strongly maintained theoretical support for the death penalty. Conservative libertarian legal scholar Richard A. Epstein described Sunstein as "one of the more conservative players in the Obama administration."

Much of his work also brings behavioral economics to bear on law, suggesting that the "rational actor" model will sometimes produce an inadequate understanding of how people will respond to legal intervention.

Sunstein has collaborated with academics who have training in behavioral economics, most notably Daniel Kahneman, Richard Thaler, and Christine M. Jolls, to show how the theoretical assumptions of law and economics should be modified by new empirical findings about how people actually behave. 

According to Sunstein, the interpretation of federal law should be made not by judges but by the beliefs and commitments of the U.S. president and those around him.
"There is no reason to believe that in the face of statutory ambiguity, the meaning of federal law should be settled by the inclinations and predispositions of federal judges. The outcome should instead depend on the commitments and beliefs of the President and those who operate under him," argued Sunstein.

Sunstein (along with his coauthor Richard Thaler) has elaborated the theory of libertarian paternalism.  In arguing for this theory, he counsels thinkers/academics/politicians to embrace the findings of behavioral economics as applied to law, maintaining freedom of choice while also steering peoples' decisions in directions that will make their lives go better. With Thaler, he coined the term "choice architect."

Military commissions
In 2002, at the height of controversy over Bush's creation of military commissions without Congressional approval, Sunstein stepped forward to insist, "Under existing law, President George W. Bush has the legal authority to use military commissions" and that "President Bush's choice stands on firm legal ground." Sunstein scorned as "ludicrous" an argument from law professor George P. Fletcher, who believed that the Supreme Court would find Bush's military commissions without any legal basis. In 2006, the Supreme Court found the tribunals illegal in Hamdan v. Rumsfeld in a 5–3 vote.

First Amendment
In his book Democracy and the Problem of Free Speech Sunstein says there is a need to reformulate First Amendment law. He thinks that the current formulation, based on Justice Holmes' conception of free speech as a marketplace, "disserves the aspirations of those who wrote America's founding document." The purpose of this reformulation would be to "reinvigorate processes of democratic deliberation, by ensuring greater attention to public issues and greater diversity of views." He is concerned by the present "situation in which like-minded people speak or listen mostly to one another," and thinks that in "light of astonishing economic and technological changes, we must doubt whether, as interpreted, the constitutional guarantee of free speech is adequately serving democratic goals." He proposes a "New Deal for speech [that] would draw on Justice Brandeis' insistence on the role of free speech in promoting political deliberation and citizenship."

Animal rights 
Some of Sunstein's work has addressed the question of animal rights, as he co-authored a book dealing with the subject, has written papers on it, and was an invited speaker at "Facing Animals," an event at Harvard University described as "a groundbreaking panel on animals in ethics and the law." "Every reasonable person believes in animal rights," he says, continuing that "we might conclude that certain practices cannot be defended and should not be allowed to continue, if, in practice, mere regulation will inevitably be insufficient – and if, in practice, mere regulation will ensure that the level of animal suffering will remain very high."

Sunstein's views on animal rights generated controversy when Sen. Saxby Chambliss (R-Ga.) blocked his appointment to the Office of Information and Regulatory Affairs by Obama. Chambliss objected to the introduction of Animal Rights: Current Debates and New Directions, a volume edited by Sunstein and his then-companion Martha Nussbaum. On page 11 of the introduction, during a philosophical discussion about whether animals should be thought of as owned by humans, Sunstein notes that personhood need not be conferred upon an animal in order to grant it various legal protections against abuse or cruelty, even including legal standing for suit. For example, under current law, if someone saw their neighbor beating a dog, they cannot sue for animal cruelty because they do not have legal standing to do so. Sunstein suggests that granting standing to animals, actionable by other parties, could decrease animal cruelty by increasing the likelihood that animal abuse will be punished.

Taxation 
Sunstein has argued, "We should celebrate tax day." Sunstein argues that since government (in the form of police, fire departments, insured banks, and courts) protects and preserves property and liberty, individuals should happily finance it with their tax dollars:

In what sense is the money in our pockets and bank accounts fully 'ours'? Did we earn it by our own autonomous efforts? Could we have inherited it without the assistance of probate courts? Do we save it without the support of bank regulators? Could we spend it if there were no public officials to coordinate the efforts and pool the resources of the community in which we live? Without taxes, there would be no liberty. Without taxes there would be no property. Without taxes, few of us would have any assets worth defending. [It is] a dim fiction that some people enjoy and exercise their rights without placing any burden whatsoever on the public… There is no liberty without dependency.

Sunstein goes on to say:
If government could not intervene effectively, none of the individual rights to which Americans have become accustomed could be reliably protected.... This is why the overused distinction between "negative" and "positive" rights makes little sense. Rights to private property, freedom of speech, immunity from police abuse, contractual liberty, free exercise of religion – just as much as rights to Social Security, Medicare and food stamps – are taxpayer-funded and government-managed social services designed to improve collective and individual well-being.

Marriage 
In Nudge: Improving Decisions About Health, Wealth, and Happiness, Sunstein proposes that government recognition of marriage be discontinued. "Under our proposal, the word marriage would no longer appear in any laws, and marriage licenses would no longer be offered or recognized by any level of government," argues Sunstein. He continues, "the only legal status states would confer on couples would be a civil union, which would be a domestic partnership agreement between any two people." He goes on further, "Governments would not be asked to endorse any particular relationships by conferring on them the term marriage," and refers to state-recognized marriage as an "official license scheme."
Sunstein addressed the Senate on July 11, 1996, advising against the Defense of Marriage Act.

"Conspiracy Theories" and government infiltration 
Sunstein co-authored a 2008 paper with Adrian Vermeule, titled "Conspiracy Theories," dealing with the risks and possible government responses to conspiracy theories resulting from "cascades" of faulty information within groups that may ultimately lead to violence. In this article they wrote, "The existence of both domestic and foreign conspiracy theories, we suggest, is no trivial matter, posing real risks to the government's antiterrorism policies, whatever the latter may be."  They go on to propose that, "the best response consists in cognitive infiltration of extremist groups", where they suggest, among other tactics, "Government agents (and their allies) might enter chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories by raising doubts about their factual premises, causal logic or implications for political action." They refer, several times, to groups that promote the view that the US Government was responsible or complicit in the September 11 attacks as "extremist groups."
The authors declare that there are five hypothetical responses a government can take toward conspiracy theories: "We can readily imagine a series of possible responses. (1) Government might ban conspiracy theorizing. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories. (3) Government might itself engage in counterspeech, marshaling arguments to discredit conspiracy theories. (4) Government might formally hire credible private parties to engage in counterspeech. (5) Government might engage in informal communication with such parties, encouraging them to help." However, the authors advocate that each "instrument has a distinctive set of potential effects, or costs and benefits, and each will have a place under imaginable conditions. However, our main policy idea is that government should engage in cognitive infiltration of the groups that produce conspiracy theories, which involves a mix of (3), (4) and (5)."

Sunstein and Vermeule also analyze the practice of recruiting "nongovernmental officials"; they suggest that "government can supply these independent experts with information and perhaps prod them into action from behind the scenes," further warning that "too close a connection will be self-defeating if it is exposed." Sunstein and Vermeule argue that the practice of enlisting non-government officials, "might ensure that credible independent experts offer the rebuttal, rather than government officials themselves. There is a tradeoff between credibility and control, however. The price of credibility is that government cannot be seen to control the independent experts." This position has been criticized by some commentators who argue that it would violate prohibitions on government propaganda aimed at domestic citizens. Sunstein and Vermeule's proposed infiltrations have also been met by sharply critical scholarly responses.

Star Wars 

In 2016, Sunstein wrote of the Disney film franchise Star Wars that "Star Wars is about freedom of choice and our never-ending ability to make the right decision when the chips are down," comparing the importance of the films to the Bible, Santa Claus, and Mickey Mouse. The publication was reviewed in Time magazine, where it was described as "the ultimate primer for guiding a Star Wars padawan to the level of Jedi Knight."

"Star Wars," he writes, "is a grain of sand; it contains a whole world." This, he argues, is evident even if one "can't tell an Ackbar from [...] a Snoke." As he develops his thesis, he takes this argument further, arguing that the "hidden message and the real magic of Star Wars" is "its rousing tribute to human freedom." In an interview with The A.V. Club, Sunstein stated that he felt "over the moon about Star Wars." The film franchise, in his view, "casts light not just on the saga of our time, but also on everything about our culture," and includes many "puzzles" for the curious. Despite his overall positive view of Lucas' oeuvre and the impact of the franchise on society, Sunstein had some criticism for the prequel films, and likened that to society at large:

The sky is always falling or the sky is always bright. In some ways, this is really morning in America and we don’t see it. People are living longer, the economy is doing pretty well. On the other hand, there are some ways of thinking in the current situation that make it look not so good, including our Star Wars prequels

Sunstein compared Star Wars to his work for the Obama administration, saying that his approach to regulatory reform was very similar to Lucas' constrained approach to the movies as "episodes."

Personal life
In the 1980s and early 1990s, Sunstein was married to Lisa Ruddick, whom he met when both were undergraduates at Harvard. She is Associate Professor of English at the University of Chicago, specializing in British modernism. Their marriage ended in divorce. Their daughter Ellyn is a journalist and photographer. Thereafter, Sunstein dated Martha Nussbaum for almost a decade.  Nussbaum is a philosopher, classicist, and professor of law at the University of Chicago.

On July 4, 2008, Sunstein married Samantha Power, professor of public policy at Harvard and future  United States Ambassador to the United Nations, whom he met when they both worked as campaign advisors to Barack Obama. The wedding took place in the Church of Mary Immaculate, in Lohar, Waterville, Ireland. They have two children: a son, Declan Power Sunstein (April 24, 2009). and a daughter, Rían Power Sunstein (June 1, 2012).

Sunstein is an avid amateur squash player who has played against professionals in PSA tournaments and in 2017 was ranked 449th in the world by the Professional Squash Association.

Honors
In July 2017, Sunstein was elected a Corresponding Fellow of the British Academy (FBA), the United Kingdom's national academy for the humanities and social sciences.

In 2018 he was awarded the Holberg Prize for having "reshaped our understanding of the relationship between the modern regulatory state and constitutional law. He is widely regarded as the leading scholar of administrative law in the U.S., and he is by far the most cited legal scholar in the United States and probably the world."

Publications

Books
1990–1999
 
 
 
 
 
 
 
 
 

2000–2009
 
 
 
 
 
 
 
 
Translation: 
 
 
  (based on the Seeley Lectures 2004 at Cambridge University)
Translation: 
 
 
 
 
 
 
 
Translation: 
 
 

2010 onwards

Journal articles

See also
 Barack Obama Supreme Court candidates
 Choice architecture
 List of animal rights advocates
 List of U.S. executive branch 'czars'

References

External links
It's All Cass Sunstein's Default a 2017 strategy+business magazine "creative mind" profile. 
 
 Sunstein's Faculty Page
 CPAT Articles
 
 
 Sunstein's articles for The New Republic
 Cass Sunstein discusses Why Societies Need Dissent, at the Carnegie Council
 Sunstein on Wikipedia
 Sunstein blogging at Balkinization
 Sunstein blogging at Oxford University Press
 
 Video interview, September 2004 The Chicago Judges Project
 Video interview, December 2004 The Greatest Speech of the Century: FDR's Second Bill of Rights
 Video Interview/Discussion from June 2008 with Eugene Volokh on Bloggingheads.tv
 Video debate with Sunstein and Henry Farrell on Bloggingheads.tv
 "Catching up with Cass" interview in the Harvard Law Record
 Report on Sunstein's Harvard Law chair lecture reported in the Harvard Law Record
 Green nudges: An interview with Obama regulatory czar Cass Sunstein interview on Grist.org
 Sunstein author page and article archive from The New York Review of Books
 Podcast of lecture, 2007 "If the Public Would Be Outraged by Their Rulings, Should Judges Care?" lecture

1954 births
Administrators of the Office of Information and Regulatory Affairs
American animal rights scholars
American bloggers
American legal scholars
American legal writers
American political writers
American male non-fiction writers
Critics of conspiracy theories
Intellectual property law scholars
Jewish American writers
The Harvard Lampoon alumni
Harvard Law School alumni
Harvard Law School faculty
Law clerks of the Supreme Court of the United States
Living people
People from Concord, Massachusetts
Scholars of constitutional law
University of Chicago faculty
Corresponding Fellows of the British Academy
Middlesex School alumni
21st-century American non-fiction writers
Harvard College alumni
American male bloggers
Nudge theory
Carnegie Council for Ethics in International Affairs
21st-century American Jews
A case theory (aka theory of case, theory of a case, or theory of the case) is “a detailed, coherent, accurate story of what occurred" involving both a legal theory (i.e., claims/causes of action or affirmative defenses) and a factual theory (i.e., an explanation of how a particular course of events could have happened).

That is, a case theory is a logical description of events that the attorney wants the judge or jury to adopt as their own perception of the underlying situation.  The theory is often expressed in a story that should be compellingly probable. Case theory is distinguished from jurisprudence (aka legal theory) as general theory of law not specific to a case.

Example usage
 “Judge Taylor asked lawyers for … their theories of the case because of his unfamiliarity with it …. [The Judge] agreed to …seal the defense summary of its case theory.” 
“Working with attorneys, Capital Case Investigators will be responsible for … consulting with attorneys to develop case theories and strategies …"

References

Practice of law Divine command theory (also known as theological voluntarism) is a meta-ethical theory which proposes that an action's status as morally good is equivalent to whether it is commanded by God. The theory asserts that what is moral is determined by God's commands and that for a person to be moral he is to follow God's commands. Followers of both monotheistic and polytheistic religions in ancient and modern times have often accepted the importance of God's commands in establishing morality.

Numerous variants of the theory have been presented: historically, figures including Saint Augustine, Duns Scotus, William of Ockham and Søren Kierkegaard have presented various versions of divine command theory; more recently, Robert Merrihew Adams has proposed a "modified divine command theory" based on the omnibenevolence of God in which morality is linked to human conceptions of right and wrong. Paul Copan has argued in favour of the theory from a Christian viewpoint, and Linda Trinkaus Zagzebski's divine motivation theory proposes that God's motivations, rather than commands, are the source of morality.

Semantic challenges to divine command theory have been proposed; the philosopher William Wainwright argued that to be commanded by God and to be morally obligatory do not have an identical meaning, which he believed would make defining obligation difficult. He also contended that, as knowledge of God is required for morality by divine command theory, atheists and agnostics could not be moral; he saw this as a weakness of the theory. Others have challenged the theory on modal grounds by arguing that, even if God's command and morality correlate in this world, they may not do so in other possible worlds. In addition, the Euthyphro dilemma, first proposed by Plato (in the context of polytheistic Greek religion), presented a dilemma which threatened either to result in the moral arbitrariness of morality itself, or to result in the irrelevance of God to morality. Divine command theory has also been criticised for its apparent incompatibility with the omnibenevolence of God, moral autonomy and religious pluralism, although some scholars have attempted to defend the theory from these challenges.

General form
Philosophers including William of Ockham ( 1287 – 1347), St Augustine (354-430), Duns Scotus ( 1265 - 1308), and John Calvin (1509-1564) have presented various forms of divine command theory. The theory generally teaches that moral truth does not exist independently of God and that divine commands determine morality. Stronger versions of the theory assert that God's command is the only reason that a good action is moral, while weaker variations cast divine command as a vital component within a greater reason. The theory asserts that good actions are morally good as a result of divine command, and many  religious believers subscribe to some form of divine command theory. Because of these premises, adherents believe that moral obligation is obedience to God's commands; what is morally right is what God desires.

Divine command theory features in the ethics of many contemporary religions - including Judaism, Islam, the Baháʼí Faith, and Christianity - as well as featuring in  numerous  polytheistic religions. In ancient Athens, citizens commonly held that moral truth was tied directly to divine commands, and religious piety was almost equivalent to morality. Although Christianity does not entail divine command theory, people commonly associate the two. DCT can be a plausible theory to Christians because the traditional conception of God as the  creator of the universe parallels the idea that he created moral truths. The theory is supported by the Christian view that God is  all-powerful because this implies that God creates moral truths, rather than moral truths existing independently of him, which seems inconsistent with his omnipotence.

Augustine

Saint Augustine offered a version of divine command theory that began by casting ethics as the pursuit of the supreme good, which delivers human happiness. He argued that to achieve this happiness, humans must love objects that are worthy of human love in the correct manner; this requires humans to love God, which then allows them to correctly love that which is worthy of being loved. Augustine's ethics proposed that the act of loving God enables humans to properly orient their loves, leading to human happiness and  fulfilment. Augustine supported  Plato's view that a well-ordered soul is a desirable consequence of morality. However, unlike Plato, he believed that achieving a well-ordered soul had a higher purpose: living in accordance with God's commands. His view of morality was thus  heteronomous, as he believed in deference to a higher authority (God), rather than acting autonomously.

John Duns Scotus

Scholastic philosopher John Duns Scotus argued that the only moral obligations that God could not take away from humans involve loving God, as God is, definitionally, the most loveable thing. Scotus argued that the natural law, in the strictest sense, contains only what is self-evidently  analytically true and that God could not make these statements false. This means that the commands of natural law do not depend on God's will, and thus form the first three commandments of the Ten Commandments. The last seven of the Ten Commandments do not belong to the natural law in the strictest sense. Whilst our duties to God are self-evident, true by definition, and unchangeable even by God, our duties to others (found on the second tablet) were arbitrarily willed by God and are within his power to revoke and replace (although, the third commandment, to honour the Sabbath and keep it holy, has a little of both, as we are absolutely obliged to render worship to God, but there is no obligation in natural law to do it on this day or that). Scotus does note, however that the last seven commandments "are highly consonant with [the natural law], though they do not follow necessarily from first practical principles that are known in virtue of their terms and are necessarily known by any intellect [that understands their terms. And it is certain that all the precepts of the second table belong to the natural law in this second way, since their rectitude is highly consonant with first practical principles that are known necessarily". Scotus justifies this position with the example of a peaceful society, noting that the possession of private property is not necessary to have a peaceful society, but that "those of weak character" would be more easily made peaceful with private property than without. Hence, the last seven commandments do belong to the natural law, but not in the strictest sense, as they belong to the natural law by rectitude rather than by definition.

Thomas Aquinas

Whilst Aquinas, as a natural law theorist, is generally seen as holding that morality is not willed by God, Kelly James Clark and Anne Poortenga have presented a defence of divine command theory based on Aquinas' moral theory. Aquinas proposed a theory of natural law which asserted that something is moral if it works towards the purpose of human existence, and so human nature can determine what is moral. Clark and Poortenga argued that God created human nature and thus commanded a certain morality; hence he cannot arbitrarily change what is right or wrong for humans.

Immanuel Kant
The deontological ethics of Immanuel Kant has been cast as rejecting divine command theory by several figures, among whom is ethicist R. M. Hare. Kant's view that morality should be determined by the categorical imperative – duty to the moral law, rather than acting for a specific end – has been viewed as incompatible with divine command theory. Philosopher and theologian John E. Hare has noted that some philosophers see divine command theory as an example of Kant's heteronomous will – motives besides the moral law, which Kant regarded as non-moral. American philosopher Lewis White Beck takes Kant's argument to be a refutation of the theory that morality depends on divine authority. John E. Hare challenges this view, arguing that Kantian ethics should be seen as compatible with divine command theory.

Robert Adams

American philosopher Robert Merrihew Adams proposes what he calls a "modified divine command theory". Adams presents the basic form of his theory by asserting that two statements are equivalent:
It is wrong to do X.
It is contrary to God's commands to do X.
He proposes that God's commands precede moral truths and must be explained in terms of moral truths, not the other way around. Adams writes that his theory is an attempt to define what being ethically 'wrong' consists of and accepts that it is only useful to those within a Judeo-Christian context. In dealing with the criticism that a seemingly immoral act would be obligatory if God commanded it, he proposes that God does not command cruelty for its own sake. Adams does not propose that it would be logically impossible for God to command cruelty, rather that it would be unthinkable for him to do so because of his nature. Adams emphasises the importance of faith in God, specifically faith in God's goodness, as well as his existence.

Adams proposes that an action is morally wrong if and only if it defies the commands of a loving God. If cruelty was commanded, he would not be loving; Adams argued that, in this instance, God's commands would not have to be obeyed and also that his theory of ethical wrongness would break down. He proposed that divine command morality assumes that human concepts of right and wrong are met by God's commands and that the theory can only be applied if this is the case. Adams' theory attempts to counter the challenge that morality might be arbitrary, as moral commands are not based solely on the commands of God, but are founded on his omnibenevolence. It attempts to challenge the claim that an external standard of morality prevents God from being sovereign by making him the source of morality and his character the moral law.

Adams proposes that in many Judeo-Christian contexts, the term 'wrong' is used to mean being contrary to God's commands. In ethical contexts, he believes that 'wrong' entails an emotional attitude against an action and that these two uses of wrongness usually correlate. Adams suggests that a believer's concept of morality is founded in their religious belief and that right and wrong are tied to their belief in God; this works because God always commands what believers accept to be right. If God commanded what a believer perceived as wrong, the believer would not say it is right or wrong to disobey him; rather their concept of morality would break down.

Michael Austin writes that an implication of this modified divine command theory is that God cannot command cruelty for its own sake; this could be argued to be inconsistent with God's omnipotence. Thomas Aquinas argued that God's omnipotence should be understood as the ability to do all things that are possible: he attempted to refute the idea that God's inability to perform illogical actions challenges his omnipotence. Austin contends that commanding cruelty for its own sake is not illogical, so is not covered by Aquinas' defence, although Aquinas had argued that sin is the falling short of a perfect action and thus not compatible with omnipotence.

Alternative theories
Paul Copan argues from a Christian viewpoint that man, made in God's image, conforms to God's sense of morality. The description of actions as right or wrong are therefore relevant to God; a person's sense of what is right or wrong corresponds to God's.

As an alternative to divine command theory, Linda Zagzebski has proposed divine motivation theory, which still fits into a monotheistic framework. According to this theory, goodness is determined by God's motives, rather than by what he commands. Divine motivation theory is similar to virtue ethics because it considers the character of an agent, and whether they are in accordance with God's, as the standard for moral value. Zagzebski argues that things in the world have objective moral properties, such as being lovable, which are given to them through God's perception of them. God's attitude towards something is cast as a morally good attitude. The theory casts God as a good example for morality, and humans should imitate his virtues as much as is possible for finite, imperfect beings.

Objections

Semantic objections
Philosopher William Wainwright considered a challenge to the theory on semantic grounds, arguing that "being commanded by God" and "being obligatory" do not mean the same thing, contrary to what the theory suggests. He used the example of water not having an identical meaning to H2O to propose that "being commanded by God" does not have an identical meaning to "being obligatory". This was not an objection to the truth of divine command theory, but Wainwright believed it demonstrated that the theory should not be used to formulate assertions about the meaning of obligation. Wainwright also noted that divine command theory might imply that one can only have moral knowledge if one has knowledge of God; Edward Wierenga argued that, if this is the case, the theory seems to deny atheists and agnostics moral knowledge. Hugh Storer Chandler has challenged the theory based on modal ideas of what might exist in different worlds. He suggested that, even if one accepts that being commanded by God and being morally right are the same, they may not be synonyms because they might be different in other possible worlds.

Moral motivation
Michael Austin has noted that divine command theory could be criticised for prompting people to be moral with impure motivations. He writes of the objection that a moral life should be sought because morality is valued, rather than to avoid punishment or receive a reward. This punishment and reward system of motivation could be seen as inadequate.

Euthyphro dilemma

The Euthyphro dilemma was proposed in Plato's dialogue between Socrates and Euthyphro. In the scene, Socrates and Euthyphro are discussing the nature of piety when Socrates presents the dilemma, which can be presented as the question 'Is X good because God commands it, or does God command X because it is good?'

The Euthyphro dilemma can elicit the response that an action is good because God commands the action, or that God commands an action because it is good. If the first is chosen, it would imply that whatever God commands must be good: even if he commanded someone to inflict suffering, then inflicting suffering must be moral. If the latter is chosen, then morality is no longer dependent on God, defeating the divine command theory. Additionally, if God is subject to an external law, he is not sovereign or omnipotent, which would challenge the orthodox conception of God. Proponents of the Euthyphro dilemma might claim that divine command theory is obviously wrong because either answer challenges the ability of God to give moral laws.

William of Ockham responded to the Euthyphro Dilemma by 'biting the bullet'. He argued that, if God did command people to be cruel, then that would be morally obligatory, proposing that the only limitation to what God can make obligatory is the principle of non-contradiction. Robert Adams defended Ockham's view, noting that it is only a logical possibility that God would command what we consider to be immoral, not an actuality. Even if God could logically command these actions, he would not because that is not his character. Eleonore Stump and Norman Kretzmann have responded to the Euthyphro dilemma by appealing to the doctrine of divine simplicity, a concept associated with Aquinas and Aristotle which suggests that the substance and attributes of God are identical. They propose that God and goodness are identical and that this is what makes his commands good.

American philosopher William Alston responded to the Euthyphro dilemma by considering what it means for God to be morally good. If divine command theory is accepted, it implies that God is good because he obeys his own commands; Alston argued that this is not the case and that God's goodness is distinct from abiding by moral obligations. He suggested that a moral obligation implies that there is some possibility that the agent may not honour their obligation; Alston argued that this possibility does not exist for God, so his morality must be distinct from simply obeying his own commands. Alston contended that God is the supreme standard of morality and acts according to his character, which is necessarily good. There is no more arbitrariness in this view than accepting another moral standard.

Omnibenevolence
Gottfried Wilhelm Leibniz, and some more recent philosophers, challenged the theory because it seems to entail that God's goodness consists of his following his own commands. It is argued that, if divine command theory is accepted, God's obligations would be what he commanded himself to do; the concept of God commanding himself is seen as incoherent. Neither could God hold any virtues, as a virtue would be the disposition to follow his own commands – if he cannot logically command himself, then he cannot logically have any virtues. Edward Wierenga counters this by claiming that whatever God chooses to do is good, but that his nature means that his actions would always be praiseworthy. William Wainwright argues that, although God does not act because of his commands, it is still logical to say that God has reasons for his actions. He proposes that God is motivated by what is morally good and, when he commands what is morally good, it becomes morally obligatory.

Autonomy
Michael Austin draws attention to an objection from autonomy, which argues that morality requires an agent to freely choose which principles they live by. This challenges the view of divine command theory that God's will determines what is good because humans are no longer autonomous, but followers of an imposed moral law, making autonomy incompatible with divine command theory. Robert Adams challenges this criticism, arguing that humans must still choose to accept or reject God's commands and rely on their independent judgement about whether or not to follow them.

Pluralism
Austin considers the view that, in a world of religious pluralism, it is impossible to know which god's or religion's commands should be followed, especially because some religions contradict others, leaving it impossible to accept all of them. Within religions there are also various interpretations of what is commanded. Austin notes that some of the responses to the autonomy objection may be relevant, as an agent must choose whichever religion and morality they judge to be correct. He argues that divine command theory is also consistent with the view that moral truths can be found in all religions and that moral revelation can be found apart from religion. Heimir Geirsson and Margaret Holmgren argue against the view that different religions can lead to the same God because some religions are incompatible with each other (monotheistic and polytheistic religions have contrasting views of divinity, for example, and some Greek or Norse gods magnified human weaknesses). They argue that determining which god should be listened to remains a problem and that, even within a religion, contrasting views of God exist – the commands of God in the Old and New Testaments could seem to contradict each other.

See also
 Divine judgment
Ethical subjectivism
Theocracy
Fideism

References

Bibliography

External links
Divine Command Theory — Internet Encyclopedia of Philosophy
God and Morality — a defence of the Divine Command theory.
Moral Argument and Divine Command Theory — links to relevant on-line resources from Internet Infidels
Theological Voluntarism — Stanford Encyclopedia of Philosophy

Ethical theories
Meta-ethics
Philosophy of religion
Religious ethics