Theories of social justice are necessarily abstract, reaching beyond the particular and the immediate to the general and the timeless. Yet such theories, addressing the world and its problems, must respond to the real and changing dilemmas of the day. A brilliant work of practical philosophy, Frontiers of Justice is dedicated to this proposition. Taking up three urgent problems of social justice neglected by current theories and thus harder to tackle in practical terms and everyday life, (...) Martha Nussbaum seeks a theory of social justice that can guide us to a richer, more responsive approach to social cooperation. The idea of the social contract--especially as developed in the work of John Rawls--is one of the most powerful approaches to social justice in the Western tradition. But as Nussbaum demonstrates, even Rawls's theory, suggesting a contract for mutual advantage among approximate equals, cannot address questions of social justice posed by unequal parties. How, for instance, can we extend the equal rights of citizenship--education, health care, political rights and liberties--to those with physical and mental disabilities? How can we extend justice and dignified life conditions to all citizens of the world? And how, finally, can we bring our treatment of nonhuman animals into our notions of social justice? Exploring the limitations of the social contract in these three areas, Nussbaum devises an alternative theory based on the idea of capabilities. She helps us to think more clearly about the purposes of political cooperation and the nature of political principles--and to look to a future of greater justice for all. (shrink)

This chapter contains sections titled: 1. Frontiers of Justice and the Challenge of Disability 2. The General Approach of Frontiers of Justice 3. Equality and Adequacy 4. Social and Economic Entitlements 5. Equality in Education 6. Equality in Political Entitlements Acknowledgments References.

Frontiers of Justice: Disability, Nationality, Species Membership, by Martha Nussbaum, Harvard University Press, 2006. How should we measure human development? The most popular method used to be to focus on wealth and income, as when international development agencies rank countries according to their per capita gross domestic product. Critics, however, have long noted shortcomings with this approach. Consider for example a wealthy person in a wheelchair: her problem is not a financial one, but a lack of access (...) to public spaces. Even if she were to hire porters to carry her in and out of stores and libraries, that would not really address her situation. There is a basic sense of dignity and self-respect that comes with being able to move around on one’s own. Even for a disabled millionaire, that will only be possible when public buildings are wheelchair accessible. To fully grasp what the handicapped need, we have to look beyond purely economic measures of well-being, and take into account the actual capabilities people can exercise in their daily lives. The example of the well-off person in a wheelchair illustrates what Martha Nussbaum calls the capabilities approach to human development. It was first pioneered in economics by Amartya Sen (who came up with the wheelchair example), and Nussbaum has for years been associated with a more philosophical variation, which uses the idea of capabilities to outline basic political principles. In Frontiers of Justice: Disability, Nationality, Species Membership Nussbaum takes this project even further, and applies the capabilities approach to issues of justice involving not only the disabled and the global poor, but animals as well.Yet for a philosophy called the capabilities approach, it is surprising how little theoretical work capabilities do in Nussbaum’s overall account. (shrink)

Not only does a shared expertise in classical philosophy and literature inform the works of Martha Nussbaum and Bernard Williams, each has also written and spoken on contemporary social and political issues. Given such ranges of reference, it is not surprising that their two recent books, Frontiers of Justice, a treatise, and In the Beginning Was the Deed, selected essays, confidently take up fundamental political questions. Yet these books differ in their intentions, organising structures, and discursive strategies, and (...) they have little overlap in topics. What then may be hoped from their juxtaposition? That their moral-political perspectives are strongly anti-utilitarian, somewhat anti-Kantian, and self-professedly liberal are unpromising commonplaces. Their juxtaposition can point, I think, toward an alternative to liberalism that is not anti-liberal. Williams considered himself a ‘critical liberal’. But among his contributions to ‘processes of extension’ of liberalism is enlargement of the category of moral agency to some groups in political contexts. And Nussbaum wants to ‘extend the Rawlsian approach’ to liberalism so as to remain a ‘type of political liberal’. But one of her most important conclusions is that it is ‘easy to extend’ justice as political entitlements to nonhumans. Williams 's move toward nonperson moral agents and Nussbaum's toward nonhuman moral patients do not merely ‘extend’ liberalism but, if taken together, leverage a departure beyond it into postliberalism. (shrink)

Disability laws are crucial in ensuring a life of dignity for persons with disabilities. However, they remain limited and ineffective in the absence of adequate knowledge and awareness of the experiences with disability. The limitedness of disability laws has been spoken of in cases where the full realization of rights is subject to technological, philosophical, and market dynamics. In many cases, the law is also weakened by negative cultural beliefs and social perceptions of disability. And then there are cases where (...) disability laws perpetuate or tolerate oppression and violence. Despite their limitedness, disability laws offer normative content to facilitate engagement and critique for reform. In terms of what disability laws ‘ought’ to be, scholars write, that they should be about disabled people and the meanings provided by them. This objective has and can be fulfilled with the aid of disability studies that go beyond the inquiries of law with the right kind of research tools to theorize and re-theorize concepts and meanings about disability. Disability studies, in other words, represent the living conditions of disabled persons and the questions of how disability and/or impairment should be defined. This chapter examines the interaction between disability law and disability studies through the prism of the Convention on the Rights of Persons with Disabilities (CRPD). While discussing the models of disability (medical, social, human rights, and relational-community models) and agendas for reforming the CRPD, the chapter highlights the importance of new concepts and approaches. Further, the potential of disability laws, CRPD in particular, has been discussed keeping in mind the application of its core principles across different sectors (with a special focus on the Marrakesh treaty and copyright laws). (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

In Frontiers of Justice, Martha Nussbaum applies the “Capabilities Approach,” which she calls “one species of a human rights approach,” to justice issues that have in her view been inadequately addressed in liberal political theory. These issues include rights of the disabled, rights that transcend national borders, and animal rights issues. She demonstrates the weakness of Rawlsianism, contractualism in general, and much of the Kantian tradition in moral philosophy and shows the need to move beyond (...) the limitations of narrow rationalism, nationalism, and speciesism. Nevertheless, Nussbaum fails to elaborate adequately the grounds for her own capabilities position or to face fundamental theoretical questions about the nature and implications of that position. (shrink)

Starting from 2009, national courts of the EU Member States for the first time gained a “real” right to request the EU Court of Justice for preliminary rulings in asylum matters. First judgments of this Court demonstrate equivocal tendencies: some are blaming the Court for incompetence in asylum matters, others believe that the adoption of authoritative decisions at the European level will assist in developing consistent practice of applying asylum law in the European Union, something that failed at (...) international level due to absence of a single authoritative body to provide guidance on interpretation and application of the 1951 Refugee Convention. Considering that the judgments of the EU Court are part of the EU law, the Member States should develop their national asylum law with due regard being taken to those judgments. By the beginning of 2012, the Court has issued eight judgments on the interpretation of various problematic issues of EU asylum law. This Article analyses the jurisprudence of the EU Court in asylum cases, related to the granting of refugee status and subsidiary protection. It also provides a critical evaluation of those judgments. The main objective of the Article is to familiarise the relevant Lithuanian institutions and lawyers with the first judgments of the EU Court in asylum cases and encourage discussions concerning the application of rules established by the Court in the Lithuanian context. Due to limited size, this Article presents the analysis of two EU Court judgments adopted on interpretation of the 2004 Qualification Directive: Elgafaji v. The Netherlands (2009) dealing with granting of subsidiary protection, and Abdulla and others v. Bundesrepublik Deutschland (2010), dealing with cessation of refugee status. The value of those judgments first of all lies in the guidance they provided to the Member States on such concepts as: protection in a situation of an armed conflict, agents of protection, effectiveness of protection; as well as determination of a relationship between refugee status and subsidiary protection, relationship of the Qualification Directive with the European Convention on Human Rights and Fundamental Freedoms (ECHR), also cessation of protection. Elgafaji decision, while quite liberal with regard to persons seeking international protection, is not so liberally applied in the Member States’ practice and does not in itself guarantee positive outcome of the application of a concrete individual fleeing from an armed conflict, or a liberal approach to granting subsidiary protection in the Member States. Based on Elgafaji judgment it is clear that: Art. 15(b) of the Qualification Directive correspond to Art. 3 ECHR, while Art. 15(c) provides additional protection and in that it expands the Member States’ obligations beyond the ECHR to provide protection to persons fleeing in situations of armed conflict. While not every person arriving from an armed conflict situation would automatically fall under the granting of subsidiary protection, in certain exceptional situations indiscriminate violence may amount to individual threat without invoking personal circumstances. The EU Court departed from the individualisation requirement applied by the European Court of Human Rights in Art. 3 cases and did not also rely on international humanitarian law, by introducing a “sliding scale” formula for establishing an individual threat in armed conflict situation instead. This formula addressed the alleged internal discrepancy between “individual threat” and “indiscriminate violence”. The Abdulla decision brought in the human rights and law enforcement perspectives to the interpretation of cessation clauses, however it represents a rather superficial approach in the context of the analysed concepts (e.g. towards effectiveness of protection provided by the multinational armed forces) and is likely to be incompatible with the latest legislative trends in the EU asylum instruments (e.g. determination of refugee status and subsidiary protection by means of a single procedure) and the recent jurisprudence under the ECHR (e.g. failure to ensure a minimum standard of living may violate the ECHR). (shrink)

Scotland is usually portrayed as being a country that had weak and terrible queens, like Margaret Tudor and Mary Queen of Scots. Saint Margaret is the only queen who is constantly portrayed positively. However, that is not because of her actions as queen consort, but because she was a devote Christian. Scotland is also portrayed for not producing well known or strong female rulers. This essay will examine two contemporary female rulers from the mid-fifteenth century, one from Scotland, Eleanor of (...) Scotland, and one imported to Scotland, Mary of Gueldres. Using these case studies it will be demonstrated that Scotland did produce strong female rulers along with acquiring them. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:134 When the woman saw that the fruit of the tree was good for food and pleasing to the eye, and also desirable for gaining wisdom, she took some and ate it —­Genesis 3:6 Abstract Aesthetics has emerged as an important battleground in the moral quest for a lower carbon society. Especially in the case of proposed wind farms (an environmentally benign technology in terms of low (...) carbon emissions), opponents frequently refer to the unsightly machines creating negative landscape impacts and ruining the view. This essay seeks to reflect on the particular ways in which visual aesthetics are framed and mobilized in this moral debate. Exploring the dividing lines between pictoral and more-­ than-­ representational approaches I ask if the moral dilemmas in our landscape decisions (e.g. individual rights to beauty or collective duties toward future generations) are obscured by physical or visual realms. The largely invisible nature of wind, electricity and climate change, set within the physical and tangible nature of landscapes and turbines, challenges us to experience the aesthetics of landscapes-­ with-­ machines through more creative and engaging means that are not limited to visibility, nor deaf to morality. SIN, DUTY, AND THE AESTHETICS OF NATURE As the first act of sin in the bible, Eve’s consumption of a visually aesthetic fruit led to humans being banned from the Garden of Eden. Looking at the above sentence more closely, we could even argue that “good for food” is not a positive condition (e.g. tasty, nourishing), but Justice in the Eye of the Beholder? ‘Looking’ Beyond the Visual Aesthetics of Wind Machines in a Post-­Productivist Landscape DAN VAN DER HORST Dan van der Horst / Justice in the Eye of the Beholder? 135 rather the absence of a negative (e.g. inedible), whilst “also desirable” may sound like the hunger for wisdom was only a secondary, additional attraction. The sentence thus draws attention to the key role of aesthetics in the making of a moral decision; would Eve have eaten the forbidden fruit if it was not “pleasing for the eye”? Aesthetic judgments may be informed by a range of factors, but as this bible quote illustrates, morality is key among them. Associations between right and wrong on the one side and beauty or ugliness on the other, are not exactly rare in written history, be they religious, literary or scholastic works. As a marked contribution to the latter, Immanuel Kant has paid particularly close attention to the links between aesthetics and morality, arguing amongst others that any universal agreement in judgments of the sublime must rest on an appeal to moral feelings.1 But universality is not the only logical link between aesthetic judgementandmorality.Peoplecanfeelasenseof‘duty’tofindcertainthings beautiful e.g. because that is the aesthetic judgment of the group they aspire to belong to.2 Whilst this sense of duty can refer to social conditioning and group belonging, it also has resonance for landscape aesthetics at a time of anthropogenic climate change (a universal threat) when we must “learn to love the low carbon landscape.”3 This presents a point of departure from the debate on the moral obligation of preserving aesthetically pleasing landscapes (as we tend to do through legal designations, e.g. national parks), an ethical logic which leads, to use the words of Holmes Rolston, “from beauty to duty.”4 Moreover a posi­ tive aesthetical appreciation of a landscape because it accommodates low carbon technologies, would potentially require an inverse ethical logic, i.e. from duty to beauty.5 Notwithstanding the clear conceptual links between moral and aesthetic judgment, in everyday life it may be far less clear what kind of moral issues may underpin particular expressions of aesthetic sensibility. This can be particularly problematic for the deployment of environmental technologies (i.e. technologies pursued to reduce pollution ) that have significant landscape footprints. That is where we can find universal moral claims demanding environmental action for the common good rubbing up against aesthetic landscape judgments in places where such developments are proposed. This produces an unsatisfactory situation in which the deployment of clean technologies ENVIRONMENT, SPACE, PLACE / VOLUME 10 / ISSUE 1 / 2018 136 is delayed, tensions within local communities may increase... (shrink)

This paper questions an exclusively state-centred framing of global health justice and proposes a multilateral alternative. Using the distribution of COVID-19 vaccines to illustrate, we bring to light a broad range of global actors up and down the chain of vaccine development who contribute to global vaccine inequities. Section 1 (Background) presents an overview of moments in which diverse global actors, each with their own priorities and aims, shaped subsequent vaccine distribution. Section 2 (Collective action failures) characterises collective action (...) failures at each phase of vaccine development that contributed to global vaccine disparities. It identifies as critical the task of establishing upstream strategies to coordinate collective action at multiple stages across a range of actors. Section 3 (A Multilateral model of global health governance) takes up this task, identifying a convergence of interests among a range of stakeholders and proposing ways to realise them. Appealing to a responsibility to protect (R2P), a doctrine developed in response to human rights atrocities during the 1990s, we show how to operationalise R2P through a principle of subsidiarity and present ethical arguments in support of this approach. (shrink)

Executive summary In this discussion paper, it is shown that the current housing affordability crisis in Germany is a problem of intergenerational injustice since it affects young Germans disproportionately negatively. To address these injustices, the following policy measures are suggested. 1. Policies to assure affordable rents a. Rent controls : Well-designed rent controls help keep rentprice increases in re-lettings in check, while still allowing landlords to pass renovation costs on to their renters and to increase their rents by a small (...) percentage annually. This would especially benefit young individuals, since the young move more often than baby boomers and are therefore disproportionately negatively affected by price increases in re-lettings. b. Strengthening social housing : Local, state, and national governments must invest in the provision of social housing to provide below-market-priced housing for the most vulnerable households. This measure is especially important in large cities, where rents have risen steeply over the past decade, threatening to displace many poor households. 2. Measures to facilitate first-time homeownership for young Germans. Supporting young adults in becoming first-time homeowners is another important area in which public policy can help mitigate the negative effects of the housing crisis for young Germans. This can be achieved via: a. First-time home buyer programmes : First-time home buyer programmes support individuals who are buying their first home through grants or other financial stimuli, such as a first-time home buyer tax credit. Several countries, such as Australia or Canada, already have such programmes in place, helping young individuals to become homeowners. Such measures could also be adopted in Germany. b. Access to credit for first-time buyers : Young people often face credit constraints when buying their first home since they do not yet own a home they could use as collateral. Governmental programmes, such as the first-time homebuyers plan in Canada, can help young individuals to obtain resources for the down payment on a mortgage, thereby improving their chances to be able to obtain a mortgage at a reasonable interest rate. 3. Measures to increase housing supply. To address issues of housing affordability and intergenerational justice, public policy should aim to increase the housing stock. It should also provide for the needs of young generations, especially in urban areas. Concrete measures to achieve these goals include: a. Densification policies : Densification policies consist of relaxing zoning restrictions. This allows landowners to build more densely and taller, thereby increasing the overall housing supply. Relaxing zoning restrictions allows the housing supply to respond to an increased demand and can therefore prevent house prices from rising. Therefore, densification policies have become a widespread tool to address housing unaffordability and could be used more extensively in German cities. b. Using existing housing stock more efficiently : Another factor that hinders young people from finding adequate homes is that houses that could be occupied by a young family or multiple students are often occupied by an old couple or individual who continue living in the homes where they raised their children, even after the children have moved out. Online platforms, such as Tauschbörse, that connect young individuals currently living in a smaller property with older people currently living in a larger property can help in using the existing housing stock more efficiently. Since the current German housing crisis is a predominantly urban phenomenon, Germany’s large cities should be the primary focus of these policies. Yet, because of architectural and socio-economic differences between and within cities, there exists no one-sizefits-all solution. Nevertheless, the above measures can serve as a starting point for developing comprehensive measures to fight intergenerational injustice in the German housing market. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Notes and Discussions METHODOLOGY IN THE HISTORY OF IDEAS: THE CASE OF PIERRE CHARRON Affanities, influences, borrowings, innovations, traditions, consistency--these are some of the key concepts of the time-honored and probably still dominant approach to the history of ideas. Scholars who seek to understand and interpret the philosophy and literature of the past in these terms tend to pay little attention to the social and institutional factors (...) which constituted the working conditions under which the ideas were conceived, articulated and disseminated; and it is precisely on those grounds that the traditional school has been increasingly challenged, over the past several decades, by historians (myself among others) who are convinced that, apart from their social context, the ideas themselves are virtually incomprehensible. A recent article on Pierre Charron by Maryanne Cline Horowitz may serve to illustrate some of the questions raised by these differences in method. At the close of her article, Horowitz explains the assumptions upon which she has conducted her investigation. Citing Peter Gay's interpretation of Ernst Cassirer, she affirms that "the critic begins the process of understanding a philosopher's work by searching for a dynamic center of thought. He must regard doctrines not as a series of discrete positions but as facets of a single point of view. The critic's equipment must therefore include the gift of empathy: he must sympathetically enter--indeed, relive---the thinker's world of ideas.''1 Following her own insight into the spirit of De la sagesse, and supporting it, of course, with a display of textual evidence, Horowitz argues that Richard Popkin was wrong to lay exclusive stress upon Charron's rejection of Aristotelian epistemology from the perspective of Pyrrhonian scepticism. "I think," she says, "that Charron's De la sagesse is based primarily on Stoic, rather than Sceptic principles." Although I agree in general with the main thrust of Popkin's thesis, I too have been critical of his failure to give sufficient weight to the neo-Stoic dements of Charron's thought. Hence it is not this conclusion to which I take exception.2 Charron has, from the very beginning, been found to have said a great many things and been subjected to a wide variety of interpretations. Horowitz emphasizes "the seeds of virtue and knowledge [as] the dynamic center of De la sagesse"--a view which may appear perfectly plausible to some readers. But it can never compel widespread conviction, for the simple reason that it is impossible for a twentieth-century critic to enter--unaided--into a world of ideas now part of a remote past. A book written nearly four centuries ago is not immediately perspicuous. Before trying on our neo-idealist wings and taking flight into the empyrean of late Renaissance moral treatises, we would do well to explore as many as possible of the following questions: Just who was our author? For whom did he write? Who x p. Gay, Introduction to E. Cassirer, The Question of Jean-Jacques Rousseau (Bloomington, 1963), p. 22, cited by M. C. Horowitz, "Pierre Charron's View of the Source of Wisdom," Journal o! the History of Philosophy, IX, 4 (October, 1971), 457. 2 A. Soman, "Pierre Charron: A Revaluation," BibliothOque d'Humanisme et Renaissance, XXXII (January, 1970), 57 n. 3. [495] 496 HISTORY OF PHILOSOPHY in fact did read him? and how did his readers react? And what did our author think of their reactions.'?s Horowitz does not, apparently, give high priority to such questions. For rhetorical purposes, she readily agrees with Eugene Rice that "Pierre Charron's De la sagesse is the most important Renaissance treatise on wisdom." (Important to whom? and from what point of view? The criteria are not at all clear.) She assumes that Charron's epistemology was consistent, and that the second edition of 1604 represents a clarification of, or advance over, the first edition of 1601. (There is no historical evidence for making either assumption.) And she does not seem to entertain the possibility that Popkin could still be right about the impact of Charron's Pyrrhonian scepticism on the libertins Jrudits, although Charron may never in fact have been a Pyrrhonian sceptic.4 These are... (shrink)

A beautifully written, deeply provocative inquiry into the intersection between animal and disability liberation--the debut of an important new social critic How much of what we understand of ourselves as "human" depends on our physical and mental abilities--how we move (or cannot move) in and interact with the world? And how much does our definition of "human" depend on its difference from "animal"? Drawing on her own experiences as a disabled person, a disability activist, and an animal advocate, author (...) Sunaura Taylor persuades us to think deeply, and sometimes uncomfortably, about what divides the human from the animal, the disabled from the nondisabled--and what it might mean to break down those divisions, to claim the animal and the vulnerable in ourselves, in a process she calls "cripping animal ethics." Beasts of Burden suggests that issues of disability and animal justice--which have heretofore primarily been presented in opposition--are in fact deeply entangled. Fusing philosophy, memoir, and science--including factory farming, disability oppression, or our assumptions of human superiority over animals--Taylor draws attention to new worlds of experience and empathy that will open up important avenues of solidarity across species and ability. Beasts of Burden is a wonderfully engaging and elegantly written work, both philosophical and personal, by a brilliant debut author. (shrink)

BackgroundThe expectation of pandemic-induced severe resource shortages has prompted authorities to draft and update frameworks to guide clinical decision-making and patient triage. While these documents differ in scope, they share a utilitarian focus on the maximization of benefit. This utilitarian view necessarily marginalizes certain groups, in particular individuals with increased medical needs.Main bodyHere, we posit that engagement with the disability critique demands that we broaden our understandings of justice and fairness in clinical decision-making and patient triage. We propose the (...) capabilities theory, which recognizes that justice requires a range of positive capabilities/freedoms conducive to the achievement of meaningful life goals, as a means to do so. Informed by a disability rights critique of the clinical response to the pandemic, we offer direction for the construction of future clinical triage protocols which will avoid ableist biases by incorporating a broader apprehension of what it means to be human.ConclusionThe clinical pandemic response, codified across triage protocols, should embrace a form of justice which incorporates a vision of pluralistic human capabilities and a valuing of positive freedoms. (shrink)

Philosophical interest in disability is rapidly expanding. Philosophers are beginning to grasp the complexity of disability--as a category, with respect to well-being and as a marker of identity. However, the philosophical literature on justice and human rights has often been limited in scope and somewhat abstract. Not enough sustained attention has been paid to the concrete claims made by people with disabilities, concerning their human rights, their legal entitlements and their access to important goods, services and resources. This (...) book discusses how effectively philosophical approaches to distributive justice and human rights can support these concrete claims. It argues that these approaches often fail to lend clear support to common disability demands, revealing both the limitations of existing philosophical theories and the inflated nature of some of these demands. Moving beyond entitlements, the author also develops a unique conception of dignity, which she argues illuminates the specific indignities experienced by people with disabilities in the allocation of goods, in the common experience of discrimination and in a wide range of interpersonal interactions. Disability with Dignity offers an accessible and extended philosophical discussion of disability, justice and human rights. It provides a comprehensive assessment of the benefits and pitfalls of theories of human rights and justice for advancing justice for the disabled. It brings the moral importance of dignity to the centre, arguing that justice must be pursued in a way that preserves and promotes the dignity of people with disabilities. (shrink)

This article aims to expound the principle of justice, as a fundamental value and as an immanent category of law, as well as one of the fundamental human rights, prescribed and guaranteed by a myriad of international instruments and documents. After a brief historical account, by focusing on Article 40 of the Magna Carta Libertatum, which states that: “To No One Will we Sell, To No One Will we refuse or delay, right or justice”, this article claims (...) to show the importance of incorporation of this principle in the provisions of the Magna Carta and its impact on the development of theory and legislation in the past and present. Moreover, the article intends to explore the extent of influence that the priciple of justice has on the functioning of the law in general. Since justice implicates the permanent and constant will to render each person his due, and this achieved through equality, it results that justice means being equal. In this context, the article will explore the concept of equality as a precondition of justice, as well as the conditions and modalities for its implementation. Having in mind that the principle of justice is closely linked to the principle of equity, because equity precedes justice, or more precisely, equity is considered a source of justice, this article seeks to articulate the essential distinctions between these two concepts by focusing on their methods, i.e. in their approach for putting the idea of equality into action. (shrink)

Education as a practice in its own right (or sui generis practice) invokes quite a different set of ethical considerations than does education understood as a subordinate activity ? i.e. prescribed and controlled in its essentials by the current powers-that-be in a society. But the idea of education as a vehicle for the ?values? of a particular group or party is so commonplace, from history's legacy as well as from ongoing waves of educational reforms, as to appear a quite (...) natural one. So much is this case that the idea of education as a sui generis practice may seem a bit eccentric at first sight. Some preliminary work is called for then to render intelligible the claim that education is indeed a practice in its own right, and to illustrate the original starting point this gives for an exploration of educational ethics. In undertaking this preliminary work, central themes from two major sources are explored and reviewed: Richard Peters? well-known study Ethics and education and MacIntyre's After virtue. The suggestive merits of both works for advancing a sui generis understanding of education and its conduct are identified. But crucial occlusions are also highlighted in the arguments of both authors, the recognition of which might have enabled their thinking on educational matters to venture onto a different plane. The kind of thinking that emerges from these investigations as most promising for educational ethics is seen to differ in its key features from what the various branches of academic philosophy have to offer by way of ethical theory. (shrink)

The informed consent process is the legal embodiment of the fundamental right of the individual to make decisions affecting his or her health., and the patient’s permission is a crucial form of respect of freedom and dignity, it becomes extremely important to enhance the patient’s understanding and recall of the information given by the physician. This statement acquires additional weight when the medical treatment proposed can potentially be detrimental or even fatal. This is the case of thalassemia (...) patients pertaining to class 3 of the Pesaro classification where Allogenic hematopoietic stem cell transplantation remains the only potentially curative treatment. Unfortunately, this kind of intervention is burdened by an elevated transplantation-related mortality risk , equal to 30% according to published reports. In thalassemia, the role of the patient in the informed consent process leading up to HSCT has not been fully investigated. This study investigated the hypothesis that information provided by physicians in the medical scenario of HSCT is not fully understood by patients and that misunderstanding and communication biases may affect the clinical decision-making process. (shrink)

Legal translation is viewed as “a category in its own right” (Weston in An English reader’s guide to the French legal system. Berg, Oxford, (1991, p. 2). It is a kind of translation of the language used for specific purposes (Zhao in J Transl Stud 4:28, 2000). Legal translation requires accuracy in relaying the substance of the message, while respecting the form thereof as well as the genius of the target language (Zhao in J Transl Stud 4:19, 2000; Sarcevic (...) in New approach to legal translation. Kluwer Law International, Hague, 1997, p. 52). As generally accepted worldwide, precision is deemed of paramount importance in legal translation. With this in mind, the present paper deals chiefly with the concept of how legal translation can correctly be tested in order to ensure precision and validity for application and implementation. The paper will argue that the main goal of legal translation and the major criterion against which the precision of legal translation should be tested is to reproduce the same legal effect in the target text as that conveyed in the source text regardless of the method(s) used in the translation process. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Book Reviews 137 The Meanings of Landscape: Essays on Place, Space, Environment and Justice BY KENNETH R. OLWIG London: Routledge, 2019 REVIEWED BY TIMM SCHÖNFELDER Landscape is more than spatial scenery that meets the eye: it is an anthropogenic artefact, an intellectual construct, a mirror of culture; it even has its own language.1 This broadness is reflected in the compilation of nine authoritative essays by the geographer and (...) professor of landscape architecture Kenneth R. Olwig that were published during the past quarter of a century and are now molded into a more coherent whole. In this regard, the present volume can be considered the pinnacle of Olwig’s intellectual oeuvre. In a fervent foreword, the anthropologist Tim Ingold sets the tone when he urges the reader to shed the contemporary notion of what he terms “topophobia”—­ a lack of bond betweenpeopleandplaces—­andtoreinstatephilologyasacentralfield of interest after it was “relegated by techno-­ science to the margins of scholarship” (xv). To achieve this, the essays deal with an eclectic set of themes ranging from Ptolemy’s notion of “choros” as something similar to today’s understanding of landscape, to the humanistic geographer Yi-­Fu Tuan’s concept of “topophilia,” which is hailed as a guiding ideal for much of Olwig’s work. The articles are bound together by an introduction that quickly transcendsthegeometricallimitationsoflandscape,ontologicallyquestioning whether these can be representative of the world itself at all (3). The first chapter thus delves right into the etymologies of “landscape” and its historical implications in the Nordic countries and England with detours through Italy and the German lands. In a cursory, highly associative manner Olwig fathoms the respective cultural implications. Central is the idea that the concept of landscape is more than the mere scenicrepresentationofspaceitcametobeknownasinRenaissance art and culture.2 Rather, the Nordic variants of the word, like the Swedish landskap, are used to denote natural regions with their own polity that were then gradually subjected to a monarchic state, not least through the surveying and mapping of their territory (see also chapter two). ENVIRONMENT, SPACE, PLACE / VOLUME 13 / ISSUE 2 / 2021 138 At times, Olwig’s philological musings appear rather stretched, as when he associates the German word Grundgesetz (the “basic/­ fundamental law” of 1949, which until today serves as Germany’s constitution ) with a biopolitical dimension of “ground” as in “soil” (41).3 In cases like this, his use of literature is selective. This culminates in a problematic assessment of Nazi ideology as being motivated by a specific understanding of landscape. Statements like “there can be no doubt that the modern German conception of Landschaft was implicated in the promotion of blood-­ and-­ soil fascist ideology” (42) neglect important literature on the topic.4 Such generalizations are owed to the author’s sweeping tour de force approach. The reviewer would have preferred more guidance through the theoretical thickets by way of a clear, chronologically ordered argument. This is not helped by the occasional seeming inconsistency, as in the claim that the U.S. “inherited the British scenic idea of landscape” as a former colony while also being “very much the inheritor of German romantic ideas concerning the relation of culture to nature as expressed in the physical landscape” (45), which, in turn, showed parallels to “fascist landscapes” in the “attempt to cleanse geography of its environmentalist taint by making it a science of space” (42). This truly is a lot of ground to cover for one essay. The ensuing chapters, however, try to disentangle this inspired jumble. The second article, “Landscape, Place, and the State of Progress,” identifies a switch since the Renaissance from the idea of circuitous development to linear progress towards utopia. For Olwig, there is a “darker, Faustian side” to it that he identifies as the “dialectic of modernity,” which “opposes cosmic dreams of a utopian future to the topian exigencies of present and past”: to advance, the path had to be cleared of traditional elements (52). This materialized in courteous theatre as well as in Shakespeare’s popular plays, and in the new architecture of parks where landscape was symbolic for cultural and social progress (64). “Choros, place, and the spatialization of landscape” traces important theoretical threads within geography... (shrink)

We suggest that a restorative justice critique of current retributive policy and practice may well be a starting point for the development of more just and more effective approaches to sentencing, both formal and informal, and to a more effective approach to reentry for currently incarcerated persons. While restorative justice principles acknowledge the debt owed by offenders to their victims and victimized communities, this is a debt met neither by inflicting harm on the offender nor by removing (...) the offender's rights as a citizen. As a different normative theory, the measure of justice in a restorative approach is the extent to which harm caused by crime is repaired. While restorative justice may therefore demand a lot of offenders, their supporters, and community members, it also provides for the opportunity for victim input and reparation. Most importantly, the normative theory of restorative justice provides a different currency of repair and healing that could begin to displace the currency of punishment that knows no limits. While a restorative metric would certainly have its own limits and guidelines, the metric of uniformity as the primary gauge of justice process could at least be supplemented with a metric of stakeholder participation, satisfaction, accountability, reparation, and peacemaking. (shrink)

In the context of «reassessing the relationship between explanation and phenomenology», the paper discusses the question in what ways Husserlian phenomenology as a descriptive science of consciousness has an explanatory potential in consciousness studies. It takes a very limited approach to the wide-ranging themes that may come to mind on this topic. At the center is an exploration of consciousness as an explanandum in its own right, building on Husserl's reflective-eidetic analyses of conscious experiences. It will concentrate on (...) explicating acts of intuitive representification ( anschauliche Vergegenwärtigungen) as intentional modifications of perception, making up higher, radical novel levels of intentionality. Acts of remembering, imagining, depicting something, as well as iterations and combinations of such acts, will serve as examples. A formal notation will be used with the intention to make the reflection-based theoretical language of phenomenology more precise and easier to survey. (shrink)

Justice as Right Actions presents an original theory of justice anchored in the analytical philosophical tradition. In contrast to many contemporary approaches, the theory provides normative guidance, rather than focusing solely on political structures and institutions, as the question of justice is seen to comprise both a moral inquiry concerned with questions of good and bad, right and wrong, and a political inquiry, concerned with the nature of the polity and how individuals relate to it. (...) Presenting a relational account of justice, rather than a distributive account the latter, so much more prevalent in current studies communications are seen as the key to the theory, both in the substantive sense as a discursive method of resolving disputes, as well as instrumentally, in the transmission of concepts, especially values through time. Rule-oriented in approach, justice as right actions attempts to be value-neutral, acknowledging, however, an underlying thin theory of the good, including concepts of rationality, autonomous moral agency, equal concern and respect for others, as well as plurality of values. Its political context is liberalism, with components of negative liberty and equality of concern and respect, while underscoring as well, the concepts of tolerance and social diversity. In this study, the original theory of Justice as Right Actions is also contrasted with and situated among contemporary accounts of justice, including the most important theoretical works on the topic in the past half-century. Thus, the study also serves as a valuable review and critique of such major contemporary accounts of justice. (shrink)

This paper discusses a non-state justice system (Sistema Comunitario de Seguridad, Justicia y Reeducación, hereafter: SCSJR) applied by some of the Afromexican and Indigenous communities of the Guerrero state in Mexico as an example of a maximalist restorative justice system. Restorative justice is presented here as an alternative to criminal justice. While it responds to similar moral concerns as retributive justifications do, it offers more adequate mechanisms of dealing with certain crimes and aims to reduce coerciveness (...) of justice when dealing with lawbreaking. Restorative justice is also an approach that should be perceived as more legitimate when handling cases where the state lacks the moral standing to prosecute offenders. The SCSJR is used as an example to demonstrate the possibility of a justice system based on restorative principles to be effective in handling the entirety of lawbreaking in a community. In the case of the SCSJR this approach to justice has been proved to be effective even in the wake of high levels of criminal activity in the region. This paper discusses the SCSJR’s institutions and attitude toward lawbreaking and argues that they demonstrate an example of a justice system based on restorative justice. (shrink)

It is foundational to ethics and bioethics that individuals will have to make hard decisions, frequently in challenging circumstances. But the scenarios and standard modes of theorizing in bioethics may fail to address important ethical questions, in part because of a paradigmatic focus on individual rights and freedoms in the context of decision making. There is a growing conviction that theorists of ethics and bioethics must reframe our core units of analysis to attend to health in public, collective, relational (...) terms.1 This would involve a move from an approach that focuses primarily on the relation between doctors and patients or between researchers and research subjects to something very different— something .. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Consistently Pro-Life: The Ethics of Bloodshed in Ancient Christianity by Rob Arner, and: Christ at the Checkpoint: Theology in the Service of Justice and Peace ed. by Paul Alexander, and: Becoming Nonviolent Peacemakers: A Virtue Ethic for Catholic Social Teaching and US Policy by Eli Sarasan McCarthyBrian D. BerryReview of Consistently Pro-Life: The Ethics of Bloodshed in Ancient Christianity ROB ARNER Eugene, OR: Pickwick, 2010. 136 pp. (...) $15.56Review of Christ at the Checkpoint: Theology in the Service of Justice and Peace EDITED BY PAUL ALEXANDER Eugene, OR: Pickwick, 2012. 182 pp. $19.80Review of Becoming Nonviolent Peacemakers: A Virtue Ethic for Catholic Social Teaching and US Policy ELI SARASAN MCCARTHY Eugene, OR: Pickwick, 2012. 259 pp. $27.00In Consistently Pro-Life, Rob Arner (who teaches at Chestnut Hill College in Philadelphia) makes the case that Christians should not kill other human beings—regardless of the circumstances. Taking as his point of departure the vigilante killing of abortion doctor George Tiller in Wichita, Kansas, in 2009, he argues not only that abortion is always morally impermissible but so also is [End Page 217] the murder of abortion doctors and the use of the death penalty to punish those who murder them. In addition, he turns to the early church fathers to contend that, prior to Constantine, “without exception, the church strongly condemned the taking of human life in any form whatsoever”—thus rejecting abortion and infanticide, the blood sport of the Roman games, suicide, and killing in war (120). This was because the New Testament witness to Jesus and his death on the cross required early Christians to view “the means as just as important, if not more important, than the ends” (xiii).Arner supplements this deontological argument for Christian pacifism, which he learned from John Howard Yoder, with a brief consideration of the virtue of patience cultivated in the early churches, reflecting the influence of Stanley Hauerwas on his thought. This “cardinal virtue” connoting “longsuffering, forbearance, patient endurance”—as found in Jesus’s teaching in the Sermon on the Mount (Mt 5:38–48)—enabled early Christians to practice non-violent resistance “deferring personal revenge in favor of God’s vindicating justice” (98). If Christians were to adopt this same consistently pro-life ethic today, argues Arner, it would “lead to greater healing and peace in our blood-soaked world” (121). The book closes with three appendices—one of which is a chart of terminology that dehumanizes vulnerable victims, including unborn human beings. Unfortunately, the book does not have an index.Christ at the Checkpoint, edited by Paul Alexander (professor of Christian ethics and public policy at the Palmer Theological Seminary of Eastern University), includes thirteen plenary addresses delivered at a conference on the Arab-Israeli conflict organized by Palestinian Evangelical Christians at Bethlehem Bible College in March 2010. Almost all of the contributors to this volume—including biblical scholars, theologians, ethicists, pastors, activists, and others—criticize the ideology of Christian Zionism and its support of a theology of dispensationalism that, in their view, distorts the scriptures and fosters violence rather than reconciliation between the Israelis and the Palestinians. In his own presentation titled “What Can Pentecostals and Charismatics Do for Peace with Justice in Israel and Palestine?,” Alexander—who describes himself as a former “one-sided” Christian Zionist who later discovered the writings of Yoder and Hauerwas—appeals to Jesus’s teaching in the Sermon on the Mount and urges Pentecostals to create church communities “that cultivate persons of character and conviction, who through habits, practices, and action live out the core of our faith” (69). Along with being faithful to the “greater challenges” of love, mercy, compassion, and forgiveness, he argues that they should publicly declare that Jesus does not want Israel to continue the occupation of Palestine, and they should engage in the “easier tasks” of promoting human rights, lending support to United Nations Resolutions, and working toward a two-state solution (72). “The time has come in human history,” writes Alexander, “for Pentecostals to speak and act prophetically regarding this present injustice … [End Page 218] and to use every nonviolent weapon in our arsenal—stories, preaching... (shrink)

This article proposes that we recognize ‘accountability’ as a forward-looking virtue, which disposes its possessors to live accountably in relation to those to whom they are rightly answerable, and which can be sub-divided into ‘particular accountability’, exercised within specific and limited relationships, and ‘ultimate accountability’, regarding the shape of one’s life as a whole. The article then proposes that these two forms of accountability find close analogues in two virtues which Thomas Aquinas described as ‘annexed to justice’, namely ‘obedience’ (...) and ‘religion’. (shrink)

This paper argues that the inheritance of wealth must be grounded on reasons other than the defense of the testator’s right to bequeath or that of an heir’s alleged moral right to receive inheritance. It asserts that the accepted approach in anglophone political philosophy about the justice of inheritance along the framework of ‘justice in transfer’ is misguided. Taking _Rest_ land inheritance in Ethiopia as a case study, it defends a system of corporate ownership (...) of land by the descent group with an internal limitation put on the absoluteness of individual titles. Moreover, it submits, inheritance is permissible on reasons that (a) it must relate to preserving equality of opportunity and of a fair playing field, and (b) it ought to be predicated on a more expansive conception of kinship than is customarily accepted in Western societies. As land becomes progressively scarce, the evolution of ownership from private to family and then to corporate ownership signifies a sound interpretation of what it means to leave enough and as good for others to appropriate. (shrink)

Despite the hadiths and narratives that warn about the interpretation of the Qur’ān by opinion, the question of how Qur’ānic verses can be understood is about the nature of Qur’ānic exegesis. These narratives, which limit the interpretation to the exact field and indicate the invalidity of the specification of the intention with the imprecise information, bring with it the question of how to understand the Qur’ān in each period and society. The issue that has been questioned in the frame of (...) the commentary from the earliest periods is based on the possibility of commenting besides the narration and defining the area that the thought belongs to the commentator. In this context, it is seen that the distinction between the conceptualization of tafsīr-taʾwīl words in classical commentary literature deals with the subject of the tafsīr, their belongings, epistemological values and contexts. Mainly, this study will question whether authors who do not distinguish between tafsīr-taʾwīl categorize the information about commentary in a different context, then it will analyze two basic approaches on tafsīr and taʾwīl. In the paper, it will be suggested that these classifications in the classical literature should be evaluated together within the framework of the search for methodology in exegesis. Summary: The Prophet, who was the first glossator of the Qur’ān, forbade people to talk about the Qur’ān with their own judgments. The prominent people of the companions refused to comment on some words that were closed in meaning (garīb). The words quoted from Abū Bakr and ʿUmar on this subject are quite famous. However, the Qur’ān is a universal book revealed to be understood in all ages and geographies till the doomsday. The fact that all the verses were not interpreted by the Prophet, and the expansions of meaning observed in the Qur’ān wording necessitate the interpretation of the Qur’ān. The fact that the Prophet forbade people to talk with their own judgments about the Qur’ān and the necessity of understanding the Qur’ān in every era constitutes a dilemma that must be explained. The resolution of this issue will both determine the legitimacy of tafsīr (interpretation) and reveal the difference between the Prophet's tafsīr and the tafsīrs by other people. In this context, a distinction was made between the interpretations of the Prophet and of the companions who witnessed the revelation period from the Tabarī (d. 310/923) in the classical tafsīr literature and the interpretations by glossators in terms of their bindingness and information values. Thus, before even starting the interpretation, glossators questioned the possibility of interpretation of the Qur’ān without the tafsīr of the Prophet and the narratives from the companions that have the force of hadith marfūʿ.It is seen in classical tafsīr literature that distinctions between the tafsīr of the Prophet and the interpretations of the glossator are usually constructed on the terms of tafsīr and ta'wil, to which terminological meanings are attributed. In this regard, the methodology of Māturīdī (d. 333/944) is quite specific and clear. According to Māturīdī, tafsīr is an exact field. Only the tafsīr of the Prophet and the narratives of the companions that have the force of marfūʿ can be included in this field. Taʾwīl, on the other hand, is an area based on supposing. Preferences to be made from possible meanings are supposition and related to taʾwīl. The fact that Māturīdī included the explanations of the Prophet and his companions in the tafsīr field and stated that they expressed exact information shows that he regarded this information in the value of the statement of mutakallim. The data included in the field of taʾwīl are not as the data included in the field of tafsīr in terms of their bindingness and information value. The interpretations made in the field of taʾwīl include supposition; so they cannot be attributed to the desire of God. The field that the Prophet forbade people from declaring their own views is the field of tafsīr in the methodology of Māturīdī. The exactness of this field is an indication that the tafsīr is related to God's desire. It is not right to declare an opinion with supposition in the field that is exact and definite. Even though the interpretation in the field of tafsīr is in accordance with the truth, this cannot eliminate the responsibility of the interpreter that make determinations based on supposition in the exact and definite field. Some scholars, such as Qushayrī (d. 465/1072), also classify the narrative-sagacity areas by means of tafsīr-taʾwīl concepts. This classification deals with the data that is the subject of tafsīr in terms of their belongingness. Indeed, tafsīr science includes both the data that are linked with transmission and non-transmittable elements that can be achieved by following a methodology. Non-transmittable elements included in the taʾwīl field by those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity are the meanings reached through linguistic efforts. Language is an element that holds possibilities in itself. Considering closeness of meaning, multi-meanings, metaphors and allusions in the wording, it can be thought that the meanings reached by linguistic methods include supposition. In the methodology of Māturīdī, the field of tafsīr is composed of the explanations of the Prophet and the narratives of the companions who witnessed the revelations while in the classifications of those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity, tafsīr generally includes narratives. When the issue is handled within the framework of the desire of God and the statements of the mutakallim, it seems that the classification of Māturīdī is more punctual. However, it is understood that this approach does not give a satisfactory answer to the subsequent situations and bindingness of the mentioned data. In the classifications based on narrative-sagacity, the narratives in the field of tafsīr are taken as a whole without analyzing their health grades and their signification. However, some of these narrations are not authentic; so, in this respect it is a problematic issue that they are the subjects of the field of tafsīr. Besides, sometimes there can be different narrations about the tafsīr of verses from the companions. The evaluation these narratives in a field attributed to the desire of God may also pose a problem. The linguistic data that both Māturīdī and those who make a distinction between tafsīr and taʾwīl based on narrative-sagacity include in the field of taʾwīl does not appear to have a homogeneous structure -as is the case with the narratives-. Indeed, among this data, there are elements whose meanings are quite hard to determine as well as firm ones that possibly have only one meaning. It is controversial that these expressions, which have only one meaning and to the validity of whose meaning other evidence point out are included in the field of taʾwīl.The distinction between meaning and interpretation fields in tafsīr is very important in terms of tafsīr methodology. This field designation is in a way a description of nature of the science of tafsīr. Thus, in matters where the human intelligence remains insufficient with the tafsīr narratives from the Prophet, the bindingness of the narratives from the companions are clarified; furthermore, beyond the narrative, the validity and the information values of interpretations of the glossator are determined. In this regard, the tafsīr-taʾwīl distinctions made in the classical tafsīr literature provide us with a rich content and a multifaceted point of view. However, when addressed separately, these distinctions present a number of problems in terms of scope and applicability. Our study proposes the evaluation of tafsīr-taʾwīl distinctions in classical literature together while the meaning-interpretation fields are specified in the framework of the search for methodology in tafsīr. Thus, the incomplete aspects of the classification will be eliminated and a much more comprehensive and functional classification will be achieved. At this point, the methodologies of some figures as Tabarī, who is known to have used the terms of tafsīr and taʾwīl in the same meaning, must also be evaluated separately. Indeed, when the works of these names are analyzed, it is seen that these names also distinguish the meaning-interpretation fields in tafsīr, but they do not do this through the tafsīr-taʾwīl concepts. (shrink)

Frontier Justice is a gripping, eye-opening exploration of the world-wide refugee crisis. Combining reporting, history and political philosophy, Andy Lamey sets out to explain the story behind the radical increase in the global number of asylum-seekers, and the effects of North America and Europe’s increasing unwillingness to admit them. He follows the extraordinary efforts of a set of Yale law students who sued the U.S. government on behalf of a group of refugees imprisoned at Guantánamo Bay; he recounts one (...) refugee family’s harrowing journey from Saddam Hussein’s Iraq to contemporary Australia via the world’s most dangerous ocean crossing; and he explores the fascinating case of Ahmed Ressam, the so-called Millennium bomber who filed a refugee claim in Canada before attempting to blow up the Los Angeles airport. Lamey casts new light on a host of broader subjects, from the reasons why terrorists who pose as refugees have an overwhelming failure rate to the hidden benefits of multiculturalism. Throughout Lamey’s account, he focuses on the rights of people in search of asylum, and how those rights are routinely violated. But Frontier Justice does not merely point out problems. This book offers a bold case for an original solution to the international asylum crisis, one which draws upon Canada’s unique approach to asylum-seekers. At the centre of the book is a new blueprint for how the rights of refugees might be enforced, and a vision of human rights that is ultimately optimistic and deeply affirmative. (shrink)

The early 1990s saw an increase in conflict in Africa and increasingly brutal tactics of war ranging from using rape as a weapon of war to the amputation oflimbs of citizens. By 2006 nearly half of all high-intensity conflicts were fought on the African continent. In many cases, fragile peace had been achieved in countries that saw some of the most brutal actions of war and experienced the most horrific human rights abuses. These societies embarked on processes ofpost-conflict reconstruction and (...) the search for sustainable peace through national reconciliation and forgiveness in the hope of creating sustainable peace and democracy. This article seeks to engage the notions that underpin Western or retributive justice and African or restorative notions of justice in achieving democratic durability in a post-conflict society. It is premised on the argument that sustainable peace in Africa can only be achieved with a creative mixture ofboth Western and African approaches to transitional justice. (shrink)

The article examines the case of springtime bird hunting in Aland from a moral point of view. In Aland springtime hunting has been a cultural practice for centuries but is now under investigation due to the EU Directive on the protection of birds. The main question of the article is whether restrictions on bird hunting have a sound basis. We approach this question by analysing three principles: The animal rights principle states that if hunting is not necessary for (...) survival, it cannot be morally justified. Therefore hunting merely to engage in a cultural custom is morally suspect. In the light of the species conservation principle the hunting is questionable due to the fact that it seems to have a diminishing effect on the species populations. The formal principle of justice makes up a more difficult question since the special position of the minorities in regard to the use of natural resources is generally recognised so that they have the right to maintain their cultural practices. We claim, however, that even though cultural practices have substantial value and can be the object of special rights, they should be coherent with other principles. The springtime bird hunt in Aland does not accord with the relevant moral principles and for this reason we conclude that the basis for its continuation is weak. (shrink)

This book presents a number of fundamentally challenging perspectives that have been brought to the fore by the national tests on religious education (RE) in Sweden. It particularly focuses on the content under the heading Ethics. It is common knowledge that many teachers find these parts difficult to handle within RE. Further, ethics is a field that addresses a range of moral and existential issues that are not easily treated. Many of these issues may be said to belong to the (...) philosophical context, in which "eternal questions" are gathered and reflected upon. The first chapters highlight the concepts of ethical competence and critical thinking. In the following chapters the concept of ethical competence is analyzed with regard to teachers' objectives and to students' texts, respectively. These chapters pursue a more practice-related approach and highlight specific challenges identified from both teacher and student perspectives. Next, the book raises the issue of global responsibility. What kind of critical issues arise when handling such matters at school? Further, can contemporary moral philosophers contribute to such a discussion? In turn, the book discusses the role of statistical analyses with regard to national tests, while the closing chapters present international perspectives on the book's main themes and concluding remarks. The book's critical yet constructive approach to issues regarding assessment in ethics education makes a valuable contribution to an ongoing debate among researchers as well as to the everyday communication on testing in schools and classrooms. As such, it will appeal to scholars in ethics education and researchers in the field of assessment, as well as educators and teachers interested and engaged in the task of testing ethics in school contexts where curricular demands for valid and authoritative evaluation may provide important guidelines, but may also pose challenges of their own. (shrink)

As scholars envision a new regulatory or statutory neurorights schema it is important to imagine unintended consequences if reforms are implemented before their implications are fully understood. This paper critically evaluates provisions proposed for a new Chilean Constitution and evaluates this movement against efforts to improve the diagnosis of, and treatment for, individuals with disorders of consciousness within the broader context of disability law, international human rights, and a capabilities approach to health justice as advanced by Amartya (...) Sen and Martha Nussbaum. Framed in this way, any neurorights regime would need to satisfy several criteria. First it would be obliged to balance both positive and negative rights in the furtherance of human capabilities. Second, it would need to be future oriented and informed about the science it sought to regulate and not fall prey to science fiction fantasies that remain ungrounded in reality. Third, it would need to be specific and avoid generalizations that would lead to conceptual confusion and litigation that could delay scientific progress. Finally, it would need to harmonize novel neurorights with long-established norms in international disability and human rights law. A failure to meet these criteria will destine any novel neurorights regime to the periphery. At this juncture Chile’s nascent constitutional venture into neurorights fails to satisfy these criteria. While there yet may be a role for a more capacious and bivalent articulation of neurorights that account for capabilities and precedent, the current Chilean neurorights reforms are vague and premature. As such they should undergo additional scholarly scrutiny and should not be adopted by other jurisdictions. (shrink)

Denunciations of child sexual abuse in the sport context have been increasing in the last decades. Studies estimate that between 14 and 29% of athletes have been victim of at least one form of sexual violence in sport before the age of 18. However, studies suggest that many do not disclose their experience of CSA during childhood. This finding is alarming since studies have shown that the healing process usually starts with disclosure. Moreover, little is known about the healing process (...) of CSA experienced in the sport context. The aim of the study is to present a single case study of a CSA in sport to better understand the global experience over time from the perspective of the athlete. A narrative inquiry approach was adopted. Three non-structured interviews were conducted with the participant. Three pathways in the survivor journey have been identified through inductive thematic analysis: pathway to understanding, pathway to disclosure, and pathway to healing. These pathways represent distinct processes but are intertwined as they are dynamic and iterative. Indeed, the survivor explained how she had been, and is still, going back and forth between them. Results are consistent with those found in the literature on CSA in the general population. It suggests that theoretical models of CSA in the general population could be applied to CSA in sport. Practical implications include a need for education and clearer boundaries in the coach-athlete relationship. Sport stakeholders also need to be better equipped to recognize the signs of sexual violence in sport. Our results indicate that qualitative research could be a potential avenue to help victims heal from CSA. It gives them the chance to talk about and make sense of their abuse in a safe space. Finally, our results demonstrate the importance of reviewing the current justice system for victims. It should be based on a trauma-informed approach that places the victim at the center of the judicial process. (shrink)

the virtues which are desirable for scientific theories to possess. In this paper I discuss the several species of theoretical virtues called 'fertility', and argue in each case that the desirability of 'fertility' can be explicated in terms of other, more fundamental theoretical virtues.

In lieu of an abstract, here is a brief excerpt of the content:Accurate Self-Assessment, Autonomous Ignorance, and the Appreciation of DisabilityJoel Anderson (bio) and Warren Lux (bio)In their thoughtful commentaries on our essay, "Knowing your own strength: Accurate self-assessment as a requirement for personal autonomy," George Agich, Ruth Chadwick, and Dominic Murphy (2004) provide both criticisms and insights that give us a context in which to clarify further our claim that one's autonomy is impaired when one is unable to appreciate (...) whether one has the capacities required for tasks one is undertaking. We focus on two issues: the extent to which our account of autonomy suggests a problematically "externalist" or "objective" approach and the issue of whether our talk of accurate self-assessment entails an overdemanding requirement that one know numerous facts about oneself to count as autonomous.The External Point of ViewFor many, the idea that specific regions of the brain might be relevant to a person's autonomy evokes nightmarish, startlingly reductionist visions of a world in which informed consent is decided on the basis of neuroimaging. In arguing that a capacity for self-assessment is essential for autonomy and also presupposes executive function that is often impaired by prefrontal damage, we do not wish to engage in such reductionism by suggesting that there is any straightforward, one-to-one mapping comparable to that presupposed by the nightmare scenarios. Given what we know about the brain's plasticity, the prospects (although limited at present) for neurorehabilitation, the multiplicity of the instantiation of autonomy-related capacities, and, especially, the constitutively moral/normative dimensions of these capacity concepts, such mappings are clearly problematic. This is true even in the easy cases, which, as Murphy points out, include our case of "John." This is all the more true with regard to the more complicated psychiatric cases, including disorders such as depression where the normative dimensions and the greater interpretive leeway in diagnosis preclude reductionist solutions (See Anderson 2004). For these reasons and for independent philosophical reasons, we are uncomfortable with the label "externalist," [End Page 309] although we acknowledge and confirm our view that externally applied neuroscientific notions—and evidence—can inform these matters. Nonetheless, we do not wish to argue for a fully externalist point of view, especially when paired with the idea that we are advocating a "smooth naturalistic picture of the cognitive basis of autonomy" (Murphy 2004, 303). Murphy puts us in some terrific company with the likes of John Doris, Shaun Nichols, and—we would add—himself, and this is welcome and flattering. But, to avoid any misunderstanding of an issue that we do not actually take up in our essay, we should caution that we do not endorse a program of naturalizing the normativity on which many of central autonomy-related concepts are based. The notion, for example, of what it is to assess competently one's chances of success cannot be replaced with a set of nomological regularities or a self-applying list of necessary and sufficient conditions.Appreciating Disability and Knowing the FactsOne of the central challenges we face in presenting our approach is to distinguish our requirement of "accurate self-assessment" from an implausible requirement that one have no false beliefs about one's capacities. In different ways, all three commentaries make it clear that our argument would benefit from further clarification of this distinction.In her commentary, Chadwick suggests that our approach may commit us to requiring too much self-knowledge, specifically, that it seems to require accurate knowledge of things like our genetic makeup as a requirement for autonomy. To begin with, it is worth underscoring again that the requirement we have introduced is explicitly task specific: we are focused here on whether an agent has an understanding of things that are relevant for undertaking an intended task, and declarative knowledge of facts, genetic or otherwise, about oneself is relevant only insofar as they bear on that understanding.But Chadwick's point clearly goes deeper. In that regard, it is particularly important to underscore that ours is actually a requirement that has less to do with knowing facts—even task-specific ones—about oneself and much more to do with having the ability to incorporate available... (shrink)

(OPEN ACCESS) In this article, I explore the implications of three moral grounds for the justification of supported voting – respect as opacity, respect as equal status, and respect as political care. For each ground, I ask whether it justifies surrogate voting for voters unable to either communicate or give effect to their electoral judgments, due to some cognitive or communicative disability. (Henceforth: incommunicability cases.) I argue that respect as opacity does not permit surrogate voting, and equal status does not (...) justify such support – although the latter account can make sense of the value loss involved in the persistent non-participation of individuals with cognitive and communicative disabilities. Finally, I argue that an account of supported voting based on the ethics of political care can accommodate a pro tanto moral permission to provide surrogate voting as a form of support in incommunicability cases, and it can account for the inclusive approach of the UN Convention on the Rights of Persons with Disabilities to supported decision-making. However, I show that in incommunicability cases, what the political community and individual caretakers ultimately owe to adult fellow citizens as equal members of the political community is some adequate form of political care – but not necessarily surrogate voting. (shrink)

The question of when it is permissible to inflict risks on others without their consent is one that we all face in our everyday lives, but which is often brought to our attention in contexts of technological innovation and scientific uncertainty. Xenotransplantation, the transplantation of organs or tissues from animals to humans, has the potential to save or improve the lives of many patients but gives rise to the possibility of infectious agents being transferred from donor animals into the human (...) population. As well as being an important ethical issue in its own right it therefore provides a useful vehicle for exploring the more general question of how to balance the benefits of a practice against the risks to third parties. This paper focuses on the Rawlsian, justice-based analysis of the risks of xenotransplantation proposed by Robert Veatch. It argues that Veatch is right to take considerations of distributive justice into account, but that his particular approach is flawed. It is hoped that consideration of Veatch’s arguments, and of the underlying assumptions will suggest better ways of executing a justice-based approach. (shrink)

In Anarchy, State and Utopia, Nozick presented his doctrine of right libertarianism, largely a contemporary restatement of Locke’s moral imperative that an individual’s rights to his life, liberty, and property are absolute and place limits on state action. Parallelly, Nozick espoused the free-market system as a framework that not only respects individual rights but ensures material benefits. While the free market results in radical inequalities in holdings and widespread dispossession, Nozick treats the process as morally just and any state (...) redistribution through taxation as wrong. However, neither Nozick nor his many critics fully considered the role of money in capitalist free markets, an omission I begin to address. Nozick asserts that money emerges pre-politically through the uncoerced actions of individuals, and that it derives its value from the commodity that underpins it. This conception of money underpins Nozick’s claims that a minimal state can be just and that the free-market system is a moral, efficient, and neutral allocator of resources. However, Nozick’s approach omits addressing how money’s general acceptability and stability are achieved. Answers can be found in heterodox economic paradigms, which put the state at the center of money creation, rendering money (and the state) incompatible with natural rights. Furthermore, by insisting on money’s commodity nature, Nozick ignores the seventeenth century revolution in money, necessitated by the emergence of free-market capitalism and commodity money’s inability to underpin it. In other words, it is not commodity money but credit money that should be the proper object of Nozick’s analysis. I go on to analyze what credit money is, how it arose, and why some form of it is necessary in a free-market context. Ultimately, I argue that it is not compatible with natural rights and is itself redistributive. Key words: money, distributive justice, Nozick, Locke, free market capitalism, natural rights. (shrink)

An important and supposedly impactful form of clinical ethics support is moral case deliberation. Empirical evidence, however, is limited with regard to its actual impact. With this literature review, we aim to investigate the empirical evidence of MCD, thereby a) informing the practice, and b) providing a focus for further research on and development of MCD in healthcare settings. A systematic literature search was conducted in the electronic databases PubMed, CINAHL and Web of Science. Both the data collection (...) and the qualitative data analysis followed a stepwise approach, including continuous peer review and careful documentation of our decisions. The qualitative analysis was supported by ATLAS.ti. Based on a qualitative analysis of 25 empirical papers, we identified four clusters of themes: 1) facilitators and barriers in the preparation and context of MCD, i.e., a safe and open atmosphere created by a facilitator, a concrete case, commitment of participants, a focus on the moral dimension, and a supportive organization; 2) changes that are brought about on a personal and inter-professional level, with regard to professional’s feelings of relief, relatedness and confidence; understanding of the perspectives of colleagues, one’s own perspective and the moral issue at stake; and awareness of the moral dimension of one’s work and awareness of the importance of reflection; 3) changes that are brought about in caring for patients and families; and 4) changes that are brought about on an organizational level. This review shows that MCD brings about changes in practice, mostly for the professional in inter-professional interactions. Most reported changes are considered positive, although challenges, frustrations and absence of change were also reported. Empirical evidence of a concrete impact on the quality of patient care is limited and is mostly based on self-reports. With patient-focused and methodologically sound qualitative research, the practice and the value of MCD in healthcare settings can be better understood, thus making a stronger case for this kind of ethics support. (shrink)

The new frontiers in the philosophy of intellectual property lie squarely in territories belonging to moral and political philosophy, as well as legal philosophy and philosophy of economics – or so this collection suggests. Those who wish to understand the nature and justification of intellectual property may now find themselves immersed in philosophical debates on the structure and relative merits of consequentialist and deontological moral theories, or disputes about the nature and value of privacy, or the relationship between national (...) and global justice. Conversely, the theoretical and practical problems posed by intellectual property are increasingly relevant to bioethics and philosophy and public policy, as well as to more established areas of moral and political philosophy. Perhaps this is just to say that the philosophy of intellectual property is coming into its own as a distinct field of intellectual endeavour, providing a place where legal theorists and philosophers can have the sorts of discussions - neither reducible to questions about what the law is, nor wholly divorced from contemporary legal problems - which typify debates about freedom of expression, discrimination and human rights. These are all areas in which legal and philosophical ideas influence each other at the level of method as well as of substance. My hope is that this collection of essays will appeal to those who, whatever their professional specialty or training, share an interest in the philosophy of intellectual property, and that it will build upon and advance existing interdisciplinary dialogue and research in this complex, fascinating, and important area. Authors include John Christman, Stephen Munzer, Alex Rosenberg, Geert Demunijck, Laura Biron, James Wilson . (shrink)

BackgroundIn response to COVID-19 pandemic, the Government of Uganda adopted public health measures to contain its spread in the country. Some of the initial measures included refusal to repatriate citizens studying in China, mandatory institutional quarantine, and social distancing. Despite being a public health emergency, the measures adopted deserve critical appraisal using an ethics and human rights approach. The goal of this paper is to formulate an ethics and human rights criteria for evaluating public health measures and use it (...) to reflect on the ethical propriety of those adopted by the government of Uganda to contain the spread of COVID-19.Main bodyWe begin by illustrating the value of ethics and human rights considerations for public health measures including during emergencies. We then summarize Uganda’s social and economic circumstances and some of the measures adopted to contain the spread of COVID-19. After reviewing some of the ethics and human rights considerations for public health, we reflect upon the ethical propriety of some of Uganda’s responses to COVID-19. We use content analysis to identify the measures adopted by the government of Uganda to contain the spread of COVID-19, the ethics and human rights considerations commonly recommended for public health responses and their importance. Our study found that some of the measures adopted violate ethics and human rights principles. We argue that even though some human rights can sometimes be legitimately derogated and limited to meet public health goals during public health emergencies, measures that infringe on human rights should satisfy certain ethics and human rights criteria. Some of these criteria include being effective, strictly necessary, proportionate to the magnitude of the threat, reasonable in the circumstances, equitable, and least restrictive. We reflect on Uganda’s initial measures to combat the spread of COVID-19 and argue that many of them fell short of these criteria, and potentially limit their effectiveness.ConclusionThe ethical legitimacy of public health measures is valuable in itself and for enhancing effectiveness of the measures. Such legitimacy depends on the extent to which they conform to ethics and human rights principles recommended for public health measures. (shrink)

It is important that from a wider scientific perspective the basics of the conceptual comprehension of impeachment entrenched in the 1992 Lithuanian Constitution be related not only to (a) the nine explicit provisions whereby impeachment relations are regulated directly (Item 5 of Article 63, Article 74, Paragraph 2 of Article 86, Item 5 of Article 88, the first sentence of Paragraph 1 of Article 89, Item 4 of Paragraph 3 of Article 105, Paragraph 3 of Article 107, Item 5 (...) of Article 108, Article 116), but also to (b) the general constitutional principles (especially, the principle of protection of the rights and freedoms of a person), as well as to (c) the precedents of preparation, arrangement, suspension or continuation of impeachment proceedings (in cases of A. Butkevičius, R. Paksas or L. Karalius) and to (d) comparative international aspects, which are perceived not only in the US Constitution, but also in the European Convention on Human Rights which is no longer compatible (and clashing as regards the issue of consequences of impeachment) with the former. According to the European Court of Human Rights (judgment of 6 January 2011 in the case Paksas v. Lithuania), the European Convention on Human Rights prohibits irreversible (termless) limitation (grounded on impeachment) of the passive electoral right to be a Member of Parliament. It is also important to perceive (three) abstract procedural grounds of application of this institute to a certain official—a gross violation of the Constitution, breach of the oath and in case it transpires that a crime has been committed (Article 74 of the Constitution), and the factual (“concrete actions”—see Item 4 of Paragraph 3 of Article 105) grounds qualified according to the former, while due to the factual grounds the “impeachment case” is instituted. The notion “impeachment case” used in Item 4 of Paragraph 3 of Article 105 of the Constitution deserves special scientific attention. This notion indirectly means that: (a) prior to the application to the Constitutional Court by the Seimas, an impeachment case is (must be) instituted, which in itself means that impeachment and initiation and consideration thereof are distinguished by peculiarity in substantive procedure; (b) the Constitutional Court neither institutes this case nor “takes it over” (considers it), but in “its own” case of constitutional justice verifies those factual and procedural grounds, which are necessary in “the other” (impeachment) case instituted in the Seimas. The essence of the institute of impeachment cannot be properly perceived in the constitutional notions of “impeachment”, “case”, “proceedings“, if these notions are assessed only in the explicit provisions of Article 74 of the Constitution, i.e. they are not related to the logic of substantive and procedural arrangement and “intertwining” of the three provisions of the Constitution (Article 74, Item 4 of Paragraph 3 of Article 105 and Paragraph 3 of Article 107) as well as to the purpose of these provisions. On the grounds of the said three provisions of the Constitution, it is possible to assume that the essence of the institute of impeachment lies in a specific official accusation (of violations of special law) against the officials who have acquired (or who hold) certain constitutional powers and of bringing such officials to constitutional liability under the procedure for specific parliamentary impeachment proceedings and constitutional justice proceedings, i.e. deprivation (discontinuation) of constitutional powers under multi-level procedure for conditionally dual proceedings, in which the parliamentary proceedings and the constitutional justice proceedings are inter-connected and supplementeach other. (shrink)

Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, -and limited the maximum number of wives to four. Although polygyny is mubah (permissible) in Islamic law, it is not an absolute right that every man can use arbitrarily. Thus in Islamic law, the legitimacy of polygyny has been (...) attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintnance. However, the observance of these conditions that is left to the mercy of men leads to the exploitation of the right for practicing to polygyny and victimization of the first spouse. Therefore, inserting some restrictions for using this right has come to the agenda from time to time in Islamic legal history. The first legal arrangements concerning the restriction of the polygyny (taaddud al-zawjāt) in the history of Islamic law were indirectly made with the Family Law Decree of 1917 which was prepared in the last periods of the Ottoman Empire. Among the late Islamic jurists, the issue of the limitation of polygyny by public authority in Islamic law continues to be discussed. The civil laws of contemporary Muslim countries contain different regulations on the issue. In this article, the restriction of polygyny by the public authority in Islamic family law will be focused on.Summary: Polygyny, the marriage of a man with more than one woman at the same time is a well-known practiced in human history. Islamic law accepts the institution of polygyny as a substitute provision if it fulfills the certain conditions and reasons, and limited the maximum number of wives to four. Thus, relevant verses in the Qur’an (al-Nisa 4/3, 129) and the Prophet’s own practice (al-Ahzab 33/50, 51, 59 al-Tahrim 66 / 3-5) show that it is legitimate for a man to marry more than one woman (up to four) at the same time in Islamic law. Although polygyny is legally permissible (mubah) in Islamic law it is not an absolute right that every man can arbitrarily use. Thus in Islamic law, the legitimacy of polygyny has been attributed to the presence of two basic conditions: the observance of justice among co-wives and providing maintenance. On the other hand, there may be some exceptional circumstances permitting polygyny in Islamic law. For example, when female population is much more than male in the society and when a, woman is can not fulfill her family duties due to her cureless illness, polygyny is permitted in Islamic law.As it can be understood from the explanations above, polygyny in Islamic law is not a general and mandatory provision that should be applied by every man who has legal capacity to marry. On the contrary, it is an exceptional provision that is justified if there are certain conditions and justifications. According to this; polygyny is a moral and legal institution that is made up of mutual consent based on individual and social conditions and needs in Islamic law. Therefore, men do not have to marry a second woman on their current wives, as well as women have the right to say “no” to marry a married man as a second wife.When the conditions and rationales indicated in the relevant verses and doctrine are evaluated together, it can be said that in order to be able to legitimize the polygyny in Islamic law, there must be three basic conditions:(1) Observing justice among spouses, (2) Having sufficient financial power to provide maintenance for spouses, (3) Existence of individual or social need or necessity.Therefore, in order to prevent the exploitation of polygyny, which is justified under certain conditions and justifications in Islamic law, the above-mentioned conditions must be fulfilled. Otherwise, polygyny can cause some problems, unrest and injustice for individual, family and society. Hence, in the presence of certain conditions and justifications, polygyny accepted in Islamic law as a moral and legal institution aiming the elimination of individual and social arbitration.Although the legitimacy of polygyny in Islamic law depends on the existence of certain conditions and special circumstances, it is a known fact that they are not always observed in practice. It can be said that the right of polygyny is a subject of abuse in practice. Therefore, the limitation of polygyny by the public authority has come to the fore in Islamic legal history. Today, control of the public authority and inserting some restrictions of polygyny continue to be discussed among the Islamic jurists. In the past, it is possible to say that the control of the exercising of this right has been done relatively by society (social environment). However, nowadays, since the society cannot perform the control mechanism, it is brought up by the state (public authority) on behalf of the society.Among the contemporary Islamic jurists regarding the supervision or limitation of polygyny by the public authority; there are two approaches: “those who accept” and “those who do not accept” such restrictions.Islamic jurists, who accept that public authority is allowed to intervene in polygyny, grounded their views on two perspectives: The first is that the polygyny is legally permissible and the public authority has the authority to limit the permissible (mubah) in Islamic law. The second is that polygyny is restricted with the conditions in the Qur’anic verses such as “husband’s observation supervision of justice among his wives” and “having the power for ensuring the livelihood (nafaqa) of his wives” and it is more appropriate for the benefit of society and the purpose of the legislator (Shari’) to be subject to the control of the public authority whether these conditions are present or not. Islamic jurists, who do not agree that the public authority has the right to intervene in polygyny grounded their views on two perspectives as well: First, polygyny is a legitimate right mentioned in the verses in Islamic law and there is no definite proof that this can be prohibited or restricted by the public authority. Secondly, it is contrary to the verses to prohibit or limit the right that the Qur’an makes legitimate (free).Thus, it is possible to say that the opinion which accepts that the public authority has to limit polygyny is more accurate in terms today’s social conditions. Namely, polygyny is linked to two basic conditions: ”husband’s observance of justice among his wives and having the power to provide maintenance for his wives. Therefore, supervision of the public authority on checking the existence of these conditions is more appropriate for the purpose of the legislator (Shari legitimizing polygyny and social benefit.In fact, the Ottoman Family Law Decree of 1917 indirectly limited the right of the husband to marry more than one woman, giving the woman right to stipulate a condition in her marriage contract that her husband not to marry a second woman. In the 1924 Draft of Family Law Decree, which was prepared after the repeal of the Family Law Decree of 1917, but not enacted, it was proposed that the application of polygyny should be presented to the approval judge.In today’-s Muslim countries, there are three different practices: namely “completely prohibiting polygyny”, ”releasing polygyny” and “giving the court the right to monitor the existence of necessary conditions “. In countries such as Morocco, Algeria, Iraq, Syria, Indonesia, Malaysia (and Pakistan), the validity of polygyny depends on the permission and supervision of the judiciary. Some of these countries which have accepted judicial review have given the judicial control for the requirement of justice, some of them the conditions of justice and maintenance some of them for the conditions of justice, maintenance and a legitimate justification.In sum, in accordance with the provisions of the relevant verses, polygyny in Islamic law is legitimately permissible (mubah). However, the public authority has the right and authority to limit the mubah in Islamic law in the case of the elimination of damage and the necessity of the public interest. On the other hand, the public authority has the right and authority to enact the law in Islamic law by preferring one of the existing ijtihads that meet the needs of the society and conforms to the conditions of the age.According to this, when the public authority made a statutory regulation that links the use of right of polygyny to the permission of the judge, this regulation is binding on society.Therefore, in the event of such a legal arrangement, it is possible for the public authority to allow the men who comply with the conditions and not to allow the ones who are not to comply with the conditions after conducting the necessary investigation. As a matter of fact, now Family Laws of many Muslim countries now include such legal arrangements. It is also worth mentioning here that there may be a necessity for a man to marry more than one woman (up to four) at the same time in terms of social benefits, when the population of male and female in a society is excessively disproportionate. In such circumstances, it is also possible that the public authority encourages, or even mandates, the marriage of men who have fulfilled the conditions to more than one woman. (shrink)

Despite the importance of ethics in corporate crisis management, they have received limited attention in the academic literature. This article contributes to the evolving conversation on ethics in crisis management by elucidating the ethics of "justice" and "care" and distinguishing between them. Examples of the two approaches are offered through consideration of cases in corporate crisis management, including the alleged glass contamination case faced by Gerber Products Company, and, the shooting tragedy at San Ysidro faced by McDonald''s Corporation. (...) It is argued that both an ethic of justice and an ethic of care can be appropriate approaches in corporate crisis management. Areas for future research are discussed. (shrink)

In this paper we present an executable approach to model interactions between agents that involve sensitive, privacy-related information. The approach is formal and based on deontic, epistemic and action logic. It is conceptually related to the Belief-Desire-Intention model of Bratman. Our approach uses the concept of sphere as developed by Waltzer to capture the notion that information is provided mostly with restrictions regarding its application. We use software agent technology to create an executable approach. Our agents (...) hold beliefs about the world, have goals and commitment to the goals. They have the capacity to reason about different courses of action, and communicate with one another. The main new ingredient of our approach is the idea to model information itself as an intentional agent whose main goal it is to preserve the integrity of the information and regulate its dissemination. We demonstrate our approach by applying it to an important process in the insurance industry: applying for a life insurance.In this paper we will: (1) describe the challenge organizational complexity poses in moral reasoning about informational relationships; (2) propose an executable approach, using software agents with reasoning capacities grounded in modal logic, in which moral constraints on informational relatio nships can be modeled and investigated; (3) describe the details of our approach, in which information itself is modeled as an intentional agent in its own right; (4) test and validate it by applying it to a concrete ‘hard case’ from the insurance industry; and (5) conclude that our approach upholds and offers potential for both research and practical application. (shrink)