The volume brings together a collection of original papers on some of the main tenets of Joseph Raz's legal and political philosophy: Legal positivism and the nature of law, practical reason, authority, the value of equality, incommensurability, harm, group rights, and multiculturalism.
This article reviews recent developments in health care law, focusing on controversy at the intersection of health care law and culture. The article addresses: emerging issues in federal regulatory oversight of the rapidly developing market in direct-to-consumer genetic testing, including questions about the role of government oversight and professional mediation of consumer choice; continuing controversies surrounding stem cell research and therapies and the implications of these controversies for healthcare institutions; a controversy in India arising at the intersection of abortion (...) law and the rights of the disabled but implicating a broader set of cross-cultural issues; and the education of U.S. health care providers and lawyers in the theory and practice of cultural competency. (shrink)
Abstract This essay draws upon Gramsci?s understandings of law and of the philosophy of praxis to develop a critical analysis of international law in the constitution and potential revolutionary transformation of the contemporary global political economy. The analysis illustrates the analytical utility of Gramscian conceptions of historical bloc and hegemony in capturing the significance of international law as an effective historical force. It also extends these conceptions, theoretically, by arguing that the global political economy is undergoing a process of juridification (...) in which a commodified legal form provides the template for economic and political regulation. The commodity form theory of law is presented as the key to understanding the significance of international law under the culture of global capitalism. (shrink)
Staying for an answer : the untidy process of groping for truth -- The same, only different -- The unity of truth and the plurality of truths -- Coherence, consistency, cogency, congruity, cohesiveness, &c. : remain calm! don't go overboard! -- Not cynicism, but synechism : lessons from classical pragmatism -- Science, economics, "vision" -- The integrity of science : what it means, why it matters -- Scientific secrecy and "spin" : the sad, sleazy story of the trials of remune (...) -- Truth and justice, inquiry and advocacy, science and law -- Trial and error : the Supreme Court's philosophy of science -- An epistemologist among the epidemiologists -- Fallibilism and faith, naturalism and the supernatural, science and religion -- The ideal of intellectual integrity, in life and literature -- After my own heart : Dorothy Sayers's feminism -- Worthwhile lives -- Why I am not an oxymoron -- Formal philosophy? : a plea for pluralism. (shrink)
Because its business is to resolve disputed issues, the law very often calls on those fields of science where the pressure of commercial interests is most severe. Because the legal system aspires to handle disputes promptly, the scientific questions to which it seeks answers will often be those for which all the evidence is not yet in. Because of its case-specificity, the legal system often demands answers of a kind science is not well-equipped to supply; and, for related reasons, constitutes (...) virtually the entire market for certain fields of forensic science and for certain psychiatric specialties. Because of its adversarial character, the law tends to draw in scientists who are more willing than most to give an opinion on less-than-overwhelming evidence; and the more often such a witness testifies, the more unbudgeably confident he may become in his opinion. Legal rules can make it impossible to bring potentially useful scientific information to light, and the legal penchant for “indicia” and the like can transform scientific subtleties into legal shibboleths. And because of its concern for precedent, and the desideratum of finality, the law sometimes lags behind scientific advances. (shrink)
This book demonstrates that law can be newly interrogated when examined through the lens of literature. Like its forerunner, Empty Justice, the book creates simple pathways which energise and illustrate the links between legal theory and legal science and doctrine, through the wider visions of history, literature and culture. This broadening approach is integral to understanding law in the context of wider debates and media in the community. The book provides a collection of essays, with additional commentary which reflects (...) upon very recent scholarship and debate on a range of ethico-legal topics; it also illustrates how conventional legal matters may be rendered lively and palatable, as an adjunct to approaching doctrine and cases 'cold' in the conventional textbook manner. The chapters range from examination of current thought on cohabitation and marriage laws (via Jude the Obscure), 19th century medico-legal cases relevant to current narratives of insanity in women and the nature and status of expert evidence generally; assisted suicide and autonomy (via a poem by Jon Stallworthy) to an essay on the nature of race and ethnicity (via a poem by R S Thomas), a discussion of obscenity and moral philosophy (via an essay on Crash by J G Ballard and the philosophy of Bernard Williams) and a history of ideas discussion of positivism, natural law and political crisis, war and terrorism through legal and political theory texts and a poem by Auden. The materials refer to case law where appropriate. The chapters range from examination of current thought on cohabitation and marriage laws (via Jude the Obscure), 19th century medico-legal cases relevant to current narratives of insanity in women and the nature and status of expert evidence generally; assisted suicide and autonomy (via a poem by Jon Stallworthy) to an essay on the nature of race and ethnicity (via a poem by R S Thomas), a discussion of obscenity and moral philosophy (via an essay on Crash by J G Ballard and the philosophy of Bernard Williams) and a history of ideas discussion of positivism, natural law and political crisis, war and terrorism through legal and political theory texts and a poem by Auden. The materials refer to case law where appropriate. (shrink)
This book offers an intelligent and thought-provoking analysis of the genealogy of Western capitalist 'development'. Jennifer Beard departs from the common position that development and underdevelopment are conceptual outcomes of the Imperialist Era and positions the genealogy of development within early Christian writings in which the western theological concepts of sin, salvation, and redemption are expounded. In doing so, she links the early Christian writings of theologians such as Augustine and , Anselm and Abelard to the processes of modern identity (...) formation of which the West, the First World, the Rule of Law and the individual subject and his or her freedoms are but a part. The concept of development is thus identified within western culture as a symptom of loss within the desire for completion; as the logic behind the economic restructuring of nations as underdeveloped is revealed as that ruthless imaginary by which First World nations maintain their ideal of themselves. Drawing upon anthropology, economics, historiography, philosophy of science, theology, feminism, cultural studies and development studies, this book contains the best of interdisciplinary work in international law. (shrink)
Recent psychological research on the connection between culture and thought could have dire consequences for the idea that there are objective standards of reasoning and that meaningful cross-cultural discussion is possible. The problems are particularly acute if research shows that the Law of Noncontradiction (LNC) is not a universal of folk epistemology. It is extremely difficult to provide a non-circular justification for the LNC, and yet the LNC seems to act as a basic standard for reasoning in the West. (...) If non-Western cultures do not believe the LNC holds, then meaningful cross-cultural discussion and debate will be very difficult, to say the least. In this paper it is argued that the distinction between belief and acceptance is important in analyzing cross-cultural studies on the way people reason. Studies conducted by Richard Nisbett and Kaiping Peng concerning differences between East Asians and Westerners are analyzed. The distinction between belief and acceptance is used to demonstrate that the empirical data currently available fail to show that the LNC is not a universal of folk epistemology. A brief proposal for further research is presented. (shrink)
Traditional scholars of philosophy and religion, both East and West, often place a major emphasis on analyzing the nature of “the self.” In recent decades, there has been a renewed interest in analyzing self, but most scholars have not claimed knowledge of an ahistorical, objective, essential self free from all cultural determinants. The contributors to this volume recognize the need to contextualize specific views of self and to analyze such views in terms of the dynamic, dialectical relations between self and (...)culture.An unusual feature of this book is that all of the chapters not only focus on traditions and individuals, East and West, but include as primary emphases comparative philosophy, religion, and culture, reinforcing individual and cultural creativity. Each chapter brings specific Eastern and Western perspectives into a dynamic, comparative relation. This comparative orientation emphasizes our growing sense of interrelatedness and interdependency. Culture and Self includes many Asian and Western philosophical, religious, and cultural perspectives. Chapters focus on Vedanta, Samkhya-Yoga, and other Hindu approaches, as well as Buddhist, Confucian, Taoist and other Indian, Chinese, and Japanese perspectives. Studies present Cartesian and other dominant Western perspectives, as well as Marx, Nietzsche, Sartre, feminism, and other Western challenges to the dominant Western interpretations of culture and self.This volume will appeal to students and readers of philosophy, religious studies, Asian studies, and cultural studies. (shrink)
Human Being Human explores the classical question What is a human being? and produces original and challenging insights in the process of providing an answer. In examining our human being, Christopher Hauke challenges the notion of human nature, questions the assumed superiority of human consciousness and rational thinking and pays close attention to the contradiction of living simultaneously as an autonomous individual and a member of the collective community. The main chapters include: Whose in Charge Here? Knowledge, Power and Human (...) Being That Thinking Feeling Is Modern Consciousness Different? Modern Consciousness and the Quest for Spirituality Endings, the Unconscious and Time Orpheus, Dionysus and Popular Culture The book is also structured around brief panel essays with a distinctly personal tone, such as: The Rise of revulsion: Spitting and The Stones, What is the Double When the Original is Gone? And "I lived with the speaking clock". All these themes are amplified by examples drawn from psychotherapy, film, literature and popular culture, and illustrated with many evocative photographs and film stills. Human Being Human provides an original perspective on what it is to be a human being, the value of popular culture, the relationship between the individual and the collective and our assumptions about truth, reality and power. Written in a highly accessible style, this book is both intellectually and emotionally satisfying and will fascinate anyone interested in contemporary psychology, cultural studies, film and media, social history and psychotherapy. (shrink)
Since Freud, psychoanalysis has always concerned itself with questions of art, creativity, politics, and war. This collection of essays from leading writers on psychoanalysis explores questions of culture through a close dialogue between psychoanalytic clinical and academic traditions. Culture and the Unconscious is a major contribution to these debates. With accessible introductions to its central themes, the book opens up conversations between the spheres of art, academia and psychoanalysis, revealing points of commonality and divergence.
Culture and Psyche is a collection of Sudhir Kakar's essays on cultural psychology, which analyses various facets of Indian identity and sexuality through sources as diverse as case studies, Indian myths and legends, and popular cinema. The second edition of this classic includes a new introduction and three additional essays which explore issues like riots, the psychology of Islamist terrorism, among others.
Machine generated contents note: Preface v -- CRITIQUE -- 1. Culture and Semantics 1 -- 2. What is 'Cartesian' in Linguistics? 8 -- 3. Computer, Brain and Grammatical Theory 22 -- DYNAMICAL SEMANTICS -- 4. From Discrete Signs to Dynamic Semantic Continuum 37 -- 5. Catastrophe Theoretic Semantics: -- Towards a Physics of Meaning 50 -- 6. Ontological and Cognitive Bases of kiraka Theory 60 -- 7. 'Force Dynamics' as a Dynamical Sem-antics Model 72 -- METAPHOR -- 8. Body, (...) Space and Metaphorical-Cultural Worlds 85 -- 9. Metaphors in Grammar 103 -- SEMIOTICS -- 10. Dynamics in Nar-rative Structures 123 -- 11. -Perspectives in the Semiotics of Objects 139 -- 12. Tfhe Semantics of 'Nukespeak' 149 -- POST-STRUCTURALISM I POSTMODERNISM -- 13. Language, Power, and Plurality 155 -- 14. On Difference(s) 160 -- 15. Dialogics, or the Dynamics of Intersubjectivity 170 -- 16. Writing, hifinity, and Dialogicality 178 -- 17. Lacan, Denrida and the Vicissitudes of the 'Sign' 185. (shrink)
IntroductionCultural Consultation is a clinical process that emerged from anthropological critiques of mental healthcare. It includes attention to therapeutic communication, research observations and research methods that capture cultural practices and narratives in mental healthcare. This essay describes the work of a Cultural Consultation Service (ToCCS) that improves service user outcomes by offering cultural consultation to mental health practitioners. The setting is a psychiatric service with complex and challenging work located in an ethnically diverse inner city urban area. Following a period (...) of 18 months of cultural consultation, we gather the dominant narratives that emerged during our evaluation of our service. Results: These narratives highlight how culture is conceptualized and acted upon in the day-to-day practices of individual health and social care professionals, specialist psychiatric teams and in care systems. The findings reveal common narratives and themes about culture, ethnicity, race and their perceived place and meaningfulness in clinical care. These narratives express underlying assumptions and covert rules for managing, and sometimes negating, dilemmas and difficulties when considering “culture” in the presentation and expression of mental distress. The narratives reveal an overall “culture of understanding cultural issues” and specific “cultures of care”. These emerged as necessary foci of intervention to improve service user outcomes. Conclusion: Understanding the cultures of care showed that clinical and managerial over-structuring of care prioritises organisational proficiency, but it leads to inflexibility. Consequently, the care provided is less personalised and less accommodating of cultural issues, therefore, professionals are unable to see or consider cultural influences in recovery. (shrink)
Fundamentalist forms of religion today claim authority everywhere, including the debates over the politics and constitutional law of liberal democracies. This book examines this general question through its critical evaluation of a recent school of thought: that of the new natural lawyers. The new natural lawyers are the lawyers of the current Vatical hierarchy, polemically concerned to defend its retrograde views on matters of sexuality and gender in terms of arguments that, in fact, notably lack the philosophical rigor of the (...) historical Thomism they claim to honor. The book critiques forms of fundamentalism and offers an original argument both for how they arose and why they are unreasonable in contemporary circumstances. (shrink)
Natural law as fact, theory, and sign of contradiction -- The second tablet project -- The mystery of what? -- The natural, the connatural, and the unnatural -- Accept no imitations: natural law vs. naturalism -- Thou shalt not kill . . . whom? the meaning of the person -- Capital punishment: the case for justice -- Constitution vs. constitutionalism -- Constitutional metaphysics -- The liberal, illiberal religion.
The Euthyphro problem and the natural law : an investigation of some aspects of the medieval debate on natural law -- Aristotle : natural law and man in the "metaxy" -- St. Thomas Aquinas : the "lex naturalis" -- Thomas Hobbes : The state of nature and natural rights -- John Locke : natural law, natural rights and God -- Concluding remarks and a heavenly dialogue.
As medical technology advances and severely injured or ill people can be kept alive and functioning long beyond what was previously medically possible, the debate surrounding the ethics of end-of-life care and quality-of-life issues has grown more urgent. In this lucid and vigorous book, Craig Paterson discusses assisted suicide and euthanasia from a fully fledged but non-dogmatic secular natural law perspective. He rehabilitates and revitalises the natural law approach to moral reasoning by developing a pluralistic account of just why we (...) are required by practical rationality to respect and not violate key demands generated by the primary goods of persons, especially human life. Important issues that shape the moral quality of an action are explained and analysed: intention/foresight; action/omission; action/consequences; killing/letting die; innocence/non-innocence; person/non-person. Paterson defends the central normative proposition that ‘it is always a serious moral wrong to intentionally kill an innocent human person, whether self or another, notwithstanding any further appeal to consequences or motive’. (shrink)
Powerful emotion and pursuit of self-interest have many times led people to break the law with the belief that they are doing so with sound moral reasons. This study is a comprehensive philosophical and legal analysis of the gray area in which the foundations of law and morality clash. This objective book views these oblique circumstances from two perspectives: that of the person who faces a possible conflict between the claims of morality and law and must choose whether or not (...) to obey the penal code; and that of the people who make and uphold laws and must decide whether to treat someone with a moral claim to disobey differently from ordinary lawbreakers. In examining the extent of the obligations owed by citizens to their government, Greenawalt concentrates on the possible existence of a single source of obligation that reaches all citizens and all laws. He also discusses techniques of amelioration of punishment for conscientious lawbreakers, asking how far legal systems should go to accomodate individuals who break the law for reason of conscience. Drawing from numerous examples of conflicts between law and morality, Greenawalt illustrates in detail the positions and predicaments of potential lawbreakers and lawmakers alike. (shrink)
This paper constitutes a critical exploration of the functional features underpinning the unconscious of institutional attachment—namely an attachment which is understood in terms of the subject-infant’s love for his institutional parent-power holder, and the indefinite need for a subject to remain within its infantile condition under the parenthood of the State. We venture beyond the Paternal metaphor and move towards the neglected metaphor of the Mother, so focal in the individual process of identification, assumption of language and the permanent attachment (...) to the space of prohibition and Law. A new position in Language is defined. To understand how the psychic space of the infant is artfully subjugated in the making of the Western culture and domination of the Western system of legal interpretation, an enquiry into the legal emblematic history of representations is necessary to map the process through which the subject learns its legal self and relationship with otherness through what Pierre Legendre coined as the Occidental Mirror and the triangular logic of reflexivity. A final enquiry interrogates the way the legal institution places itself in the position of the specular image that captivates the subject-infant within a procreated legal order, a law-giving and law abiding life starting from the laws of the familial structure reinforced by the role of the parents and by analogy, by the State assuming that role in the institutional life of the ad infinitum infant. (shrink)
Kierkegaard is often viewed in the history of ideas solely within the academic traditions of philosophy and theology. The secondary literature generally ignores the fact that he also took an active role in the public debate about the significance of the modern age that was taking shape in the flourishing feuilleton literature during the period of his authorship. Through a series of sharply focussed studies, George Pattison contextualises Kierkegaard's religious thought in relation to the debates about religion, culture and (...) society carried on in the newspapers and journals read by the whole educated stratum of Danish society. Pattison brings Kierkegaard into relation to not only high art and literature but also to the ephemera of his contemporary culture. This has important implications for our understanding of Kierkegaard's view of the nature of religious communication in modern society. (shrink)
How are law and morality connected, how do they interact, and in what ways are they distinct? In Part I of this book, Matthew Kramer argues that moral principles can enter into the law of any jurisdiction. He contends that legal officials can invoke moral principles as laws for resolving disputes, and that they can also invoke them as threshold tests which ordinary laws must satisfy. In opposition to many other theorists, Kramer argues that these functions of moral principles are (...) consistent with all the essential characteristics of any legal system. Part II reaffirms the legal positivist argument that law and morality are separable, arguing against the position of natural-law theory, which portrays legal requirements as a species of moral requirements. Kramer contends that even though the existence of a legal system in any sizeable society is essential for the realization of fundamental moral values, law is not inherently moral either in its effects or in its motivational underpinnings. In the final part, Kramer contests the widespread view that people whose conduct is meticulously careful cannot be held morally responsible for harmful effects of their actions. Through this argument, he reveals that fault-independent liability is present even more prominently in morality than in the law. Through a variety of arguments, Where Law and Morality Meet highlights both some surprising affinities and some striking divergences between morality and law. (shrink)
Machine generated contents note: Table of Cases xi -- Table of legislation xv -- Introduction: Medicine Men, Outlaws and Voluntary Euthanasia 1 -- 1. To Kill or not to Kill; is that the Euthanasia Question? 9 -- Introduction-Why Euthanasia? 9 -- Dead or alive? 16 -- Euthanasia as Homicide 25 -- Euthanasia as Death with Dignity 29 -- 2. Euthanasia and Clinically assisted Death: from Caring to Killing? 35 -- Introduction 35 -- The Indefinite Continuation of Palliative Treatment 38 -- (...) Withholding or Withdrawing Treatment 44 -- The Principle of Double Effect 54 -- Physician Assisted Suicide 60 -- Mercy Killing 64 -- Conclusions 66 -- 3. Consent to Treatment but Not to Death 69 -- Introduction-Why Consent? 69 -- Without Consent 70 -- Killing and Consent 73 -- Valid Consent, Freely Given? 74 -- Old Enough to Consent 80 -- Deciding for Others 82 -- Conclusions-A Consent Too Far? 93 -- 4. Autonomy, Self-determination and Self-destruction 95 -- Introduction-Autonomous Choices 95 -- Choosing to Die-Suicide and Autonomy 100 -- Suicidal Intentions 107 -- Autonomous Clinical Discretion 110 -- Deciding to Live or Die-Whose Decision? 112 -- 5. Living Wills and the Will to Die 115 -- Introduction 115 -- I Know My Will 118 -- This is My Will 121 -- I Will Decide 128 -- Will My Will be Done? 134 -- Where There's a Will 137 -- Conclusions 143 -- 6. Is Euthanasia a Dignified Death? 145 -- Introduction-Why Dignity? 145 -- Needing Dignity 146 -- Finding Dignity 149 -- Achieving Dignity in Dying 151 -- Dignifying Death 157 -- 7. Conclusions: Dignified Life, Dignified Death and Dignified Law 165 -- Select Bibliography 175 -- Index 183. (shrink)
In support of my longstanding claim that the traditional divide between natural law and legal positivist theories of law, the present paper explores a variety of necessary connections between law and morality which are consistent with theories of law traditionally identified as positivist.
Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil disobedience (...) -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)
This book articulates a systematic vision of an international legal system grounded in the commitment to justice for all persons. It provides a probing exploration of the moral issues involved in disputes about secession, ethno-national conflict, "the right of self-determination of peoples," human rights, and the legitimacy of the international legal system itself. Buchanan advances vigorous criticisms of the central dogmas of international relations and international law, arguing that the international legal system should make justice, not simply peace among states, (...) a primary goal, and rejecting the view that it is permissible for a state to conduct its foreign policies exclusively according to what is in the "national interest." He also shows that the only alternatives are not rigid adherence to existing international law or lawless chaos in which the world's one superpower pursues its own interests without constraints. This book not only criticizes the existing international legal order, but also offers morally defensible and practicable principles for reforming it. Justice, Legitimacy, and Self-Determination will find a broad readership in political science, international law, and political philosophy. (shrink)
Margaret Otlowski investigates the complex and controversial issue of active voluntary euthanasia. She critically examines the criminal law prohibition of medically administered active voluntary euthanasia in common law jurisdictions, and carefully looks at the situation as handled in practice. The evidence of patient demands for active euthanasia and the willingness of some doctors to respond to patients' requests is explored, and an argument for reform of the law is made with reference to the position in the Netherlands (where active voluntary (...) euthanasia is now openly practiced). (shrink)
Chapter one argues for the important contribution that a natural law based framework can make towards an analysis and assessment of key controversies surrounding the practices of suicide, assisted suicide, and voluntary euthanasia. The second chapter considers a number of historical contributions to the debate. The third chapter takes up the modern context of ideas that have increasingly come to the fore in shaping the 'push' for reform. Particular areas focused upon include the value of human life, the value of (...) personal autonomy, and the rejection of double effect reasoning. Chapter four engages in the task of pointing out structural weakness in utilitarianism and deontology. The thesis argues that major systemic weaknesses in both approaches can be overcome by a teleology of basic human goods. John Finnis' work becomes the underpinning of subsequent applied natural law analysis. Chapter five proceeds to argue for the defence of the intrinsic good of human life from direct attack. The thesis holds out for the proposition "that it is always a serious moral wrong to intentionally kill a human person, whether self or another, regardless of a further appeal to consequences or motive." In support of this, it defends the validity of double effect reasoning as an indispensable part of applied moral decision making. Chapter six critically assesses the arguments of anti-perfectionists that it is not the business of the state to enforce deep or substantive conceptions of the 'good life.' The chapter moves on to argue that the natural law conception of the person in society, centred on the common good, provides a solid framework for assessing both the justification for, as well as the limits on, the role of the state to use its power to legally impose certain moral standards. Chapter seven addresses the concrete relationship between natural law and legal policy by exploring the issue of assisted suicide in the constitutional context of the United States.
In the past twenty years Joseph Raz has consolidated his reputation as one of the most acute, inventive, and energetic scholars currently at work in analytic moral and political theory. This new collection of essays forms a representative selection of his most significant contributions to a number of important debates, including the extent of political duty and obligation, and the issue of self-determination. He also examines aspects of the common (and ancient) theme of the relations between law and morality. This (...) volume of essays, available in one volume for the first time, will be essential to legal philosophers and political theorists. (shrink)
What is objectivity? What is the rule of law? Are the operations of legal systems objective? If so, in what ways and to what degrees are they objective? Does anything of importance depend on the objectivity of law? These are some of the principal questions addressed by Matthew H. Kramer in this lucid and wide-ranging study that introduces readers to vital areas of philosophical enquiry.
Conscience and Corporate Culture advances the constructive dialogue on a moral conscience for corporations. Written for educators in the field of business ethics and practicing corporate executives, the book serves as a platform on a subject profoundly difficult and timely. Written from the unique vantage point of an author who is a philosopher, professor of business administration, and a corporate consultant A vital resource for both educators in the field of business ethics and practicing corporate executives Forwards the constructive (...) dialogue on a moral conscience for corporations Offers a philosophical and practical approach to considering business ethics. (shrink)
Can there be a theory of law? -- Two views of the nature of the theory of law : a partial comparison -- On the nature of law -- The problem of authority : revisiting the service conception -- About morality and the nature of law -- Incorporation by law -- Reasoning with rules -- Why interpret? -- Interpretation without retrieval -- Intention in interpretation -- Interpretation : pluralism and innovation -- On the authority and interpretation of constitutions : some (...) preliminaries -- Postema on law's autonomy and public practical reasons : a critical comment. (shrink)
The seven original essays included in this volume, written by some of the world's most distinguished moral and legal philosophers, offer a sophisticated perspective on issues about the objectivity of legal interpretation and judicial decision-making. They examine objectivity from both metaphysical and epistemological perspectives and develop a variety of approaches, constructive and critical, to the fundamental problems of objectivity in morality. One of the key issues explored is that of the alleged 'domain-specificity' of conceptions of objectivity, i.e. whether there is (...) a conception of objectivity appropriate for ethics that is different in kind from the conception of objectivity appropriate for other areas of study. This is the first volume to consider the intersection between objectivity in ethics and objectivity in law. It presents a state-of-the-art survey of live issues in metaethics, and examines their relevance to theorizing about law and adjudication. (shrink)
Interpreting the everyday -- Art interpretation : the central issues -- A theory of art interpretation : substantive claims -- A theory of art interpretation : conceptual and ontological claims -- Radical constructivism -- Moderate and historical constructivism -- Interpretation and construction in the law -- Relativism versus pluralism.
David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the law (...) of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)
This collection of essays by one of America's leading legal theorists is unique in its scope: it shows how traditional problems of philosophy can be understood more clearly when considered in terms of law, economics, and political science.
An introduction to the philosophy of law, which offers a modern and critical appraisal of all the main issues and problems. This has become a very active area in the last ten years, and one on which philosophers, legal practitioners and theorists and social scientists have tended to converge. The more abstract questions about the nature of law and its relationship to social norms and moral standards are now seen to be directly relevant to more practical and indeed pressing questions (...) about the justification of punishment, civil disobedience, the enforcement of morality, and problems about justice, rights, welfare, and freedom. David Lyons is a shrewd, clear and systematic guide through this tangled area. The book presupposes no formal training in law or philosophy and is intended to serve as a textbook in a range of introductory courses. (shrink)
This collection of contemporary essays by a group of well-known philosophers and legal theorists covers various topics in the philosophy of law, focusing on issues concerning liability in contract, tort, and criminal law. The book is divided into four sections. The first provides a conceptual overview of the issues at stake in a philosophical discussion of liability and responsibility. The second, third, and fourth sections present, in turn, more detailed explorations of the roles of notions of liability and responsibility in (...) contracts, torts, and punishment. The collection not only presents some of the most challenging work being done in legal philosophy today, it also demonstrates the interdisciplinary character of the field of philosophy of law, with contributors taking into account recent developments in economics, political science, and rational choice theory. This thought-provoking volume will help to shed light on the underexplored ground that lies between law and morals. (shrink)
What is law? How is legal responsibility defined? How does law reflect moral judgment? Why are law's definitions uncertain and conflicted? Basic questions for liberal law and criminal justice - what could they have to do with the forgotten historical figure of the Beautiful Soul? Starting from concrete legal issues, Alan Norrie develops a critical vision of law in its relation to morality and socio-historical context. Liberal law, he argues, is marked by splits and contradictions (antinomies), signs of something missed. (...) Traced historically, such conflicts can be read today in law's treatment of legality and justice, judgment and responsibility. A critical understanding must also be self-critical. From splits in law, Norrie moves to the split in critique: between its socio-historical and ethical forms. Drawing on critical realism and deconstruction, on the dialectics of Hegel, Adorno and Bhaskar, he argues for a form of critical thought that is at once historical and ethical. Thinking critically about critique finally leads to the Beautiful Soul, and its unexpected relation to law. These essays will be of interest to academics and advanced students of legal theory; criminal law, criminology and criminal justice; law and social theory; and critical legal studies. (shrink)
This is an unprecedented volume that brings together J. Hillis Miller, Julia Kristeva, Slavoj Zizek, Ernesto Laclau, Alain Badiou, Nancy Fraser, and other prominent intellectuals from five countries in seven disciplines to provide fresh perspectives on the new configurations of law, justice, and power in the global age. The work engages and challenges past and present scholarship on current topics in legal studies: globalization, post-colonialism, multiculturalism, ethics, post-structuralism, and psychoanalysis. The book is divided into five parts. The first debates issues (...) of (trans-)national justice and human rights in the global age, focusing on military interventions and refugee policies. Part II traces the globalization of Western law back to colonialism, addressing the rising importance of multiculturalism, gender studies, and the quotidian in legal studies. Part III examines legal pluralism. Part IV turns from the empirical “other” of legal pluralism to the concrete “Other” in Continental ethics and philosophy. The book then traces this recent ethical turn in legal theory back to the challenges of poststructuralism in Part V. The volume concludes with a psychoanalytic rethinking of justice for the new millennium that is based on love, forgiveness, and promise—a justice that, in Lacanian terms, operates outside the “limits” of the law. (shrink)
The specialised vocabularies of lawyers, ethicists, and political scientists obscure the roots of many real disagreements. In this book, the distinguished American international lawyer Alfred Rubin provides a penetrating account of where these roots lie, and argues powerfully that disagreements which have existed for 3,000 years are unlikely to be resolved soon. Current attempts to make 'war crimes' or 'terrorism' criminal under international law seem doomed to fail for the same reasons that attempts failed in the early nineteenth century to (...) make piracy, war crimes, and the international traffic in slaves criminal under the law of nations. And for the same reasons, Professor Rubin argues, it is unlikely that an international criminal court can be instituted today to enforce ethicists' versions of 'international law'. (shrink)
As one of the most massive and successful business sectors, the pharmaceutical industry is a potent force for good in the community, yet its behaviour is frequently questioned: could it serve society at large better than it has done in the recent past? Its own internal ethics, both in business and science, may need a careful reappraisal, as may the extent to which the law - administrative, civil and criminal - succeeds in guiding (and where neccessary contraining) it. The rules (...) of behavior that may be considered to apply to today's pharmaceutical industry have emerged over a very long period and the process goes on. Even the immensely detailed standards for quality, safety and efficacy laid down in drug law and regulation during the second half of the twentieth century have their limitations as tools for ensuring that the public interest is well served. In particular, national and regional regulatory agencies are heavily dependent on industrial data for their decision-making, their standards and competence vary, and even the existing network of agencies does not cover the entire world. What is more there are many areas of law and regulation affecting the industry, concerning for example the pricing of medicines, the conduct of clinical studies, the health protection of workers and concern for the environment. In some fields it is indeed hardly possible to maintain standards through regulation. Professor N.M. Graham Dukes, a physician and lawyer with long term experience in industrial research management, academic study and international drug policy, provides here a powerfully documented analysis into the way this industry thinks, acts, and is viewed, and examines the current trends pointing to change. *Provides a balanced picture of the current role of the pharmaceutical industry in society *Includes indices of conventions, laws, and regulations; as well as judicial and disciplinary cases *This is the only book addressing the legal implications of big pharma activities and ethical standards. (shrink)
Speculations After Freud confronts the dilemmas of contemporary psychoanalysis by bringing together some of the most influential and best known writers on psychoanalysis and culture. These advocates and critics of psychoanalysis, both institutional and theoretical, reveal the powerful role psychoanalytic speculation plays in all areas of culture. Psychoanalysis has played a pivotal role in challenging the modernist notions of rationality and selfhood. It offers an alternative means of examining how identity is engendered, yet its identity has come into (...) question because of multiple claims to its possession. This volume addresses the dilemmas that afflict contemporary psychoanalysis, transforms the terms in which psychoanalysis has to be seen and shows the portents in store as we enter a post-analytic age. Contributors: Mikkel Borch-Jacobsen, Cornelius Castoriadis, James Hillman, Sarah Kofman, David Farrell Krell, Julia Kristeva, Alphonso Lingis, Nicholas Rand, William Richardson, Charles E. Scott, Gayatri Chakravorty Spivak, Maria Torok. (shrink)
Incentives and reasons -- Values and human nature -- Right and wrong -- Questions of trust -- Autonomy and freedom -- Obedience, freedom, and engagement : or utility? -- Society, property, and commerce -- On justice -- Using freedom well -- Judging : legal cases and moral questions -- Practical reason, law, and state.
It is commonly understood that in its focus on rights and obligations law is centrally concerned with organising responsibility. In defining how obligations are created, in contract or property law, say, or imposed, as in tort, public, or criminal law, law and legal institutions are usually seen as society’s key mode of asserting and defining the content and scope of responsibilities. This book takes the converse view: legal institutions are centrally involved in organising irresponsibility. Particularly with respect to the production (...) of large-scale harms – including extensive human rights violations, forms of colonialism, or environmental or nuclear devastation – and in opposition to conventional understandings of responsibility in law, morality and politics, the book provides a detailed analysis of the ways in which legal institutions – their practices, concepts, and categories – themselves operate as much to deflect responsibility for harms suffered as they do to acknowledge them. Drawing on a series of case studies from local, national, and global concerns the book analyses how law facilitates dispersals and disavowals of responsibility, and it shows how it does so in consistent and patterned ways. In assessing how this ‘organised irresponsibility’ operates, and what its consequences are for both legal analysis and society generally, a thoroughgoing re-evaluation of law’s methods, operation, and consequences is required. At stake is nothing less than a fundamental re-assessment of the role of modern law in the production and legitimation of human suffering. This innovative and interdisciplinary book provides a sustained challenge to conventional thinking about law and legal institutions. It will be of major interest to those working in law, political and legal theory, sociology and moral philosophy. (shrink)
Law and morality : constructs and models -- The morality of cognition : the normativity of ordinary reasoning -- Law in action : a praxeological approach to law and justice -- Law in context : legal activity and the institutional context -- Procedural constraint : sequentiality, routine, and formal correctness -- Legal relevance : the production of factuality and legality -- From law in the books to law in action : egyptian criminal law between doctrine, case law, jurisprudence, and practice (...) -- The natural person : the contingent and contextual production of legal personality -- The production of causality : a praxeological grammar of the use of causal concepts -- Intention in action : the teleological orientation of the parties to criminal cases -- Morality on trial : structure and intelligibility of the court sentence -- Questions of morality : sequential, structured organization of the interrogation -- The categories of morality : homosexuality between perversion and debauchery. (shrink)
Some of the most difficult and wrenching social and political issues in U.S. society today are about the relationship between strongly held moral values and the laws of the land. There is no consensus about whether the law should deal with morality at all, and if it is to do so, there is no agreement over whose morality is to be reflected in the law.In this compact and carefully edited anthology, Gerald Dworkin presents the readings necessary for an understanding of (...) these issues. The volume contains classical and contemporary philosophical statements as well as a generous sampling of legal cases and opinions, including such topics of current interest as flag-burning, nude dancing, the sale of human organs, and sexual behavior. The volume represents the best in applied legal and moral philosophy. (shrink)
Kant is widely acknowledged for his critique of theoretical reason, his universalistic ethics, and his aesthetics. Scholars, however, often ignore his achievements in the philosophy of law and government. At least four innovations that are still relevant today can be attributed to Kant. He is the first thinker, and to date the only great thinker, to have elevated the concept of peace to the status of a foundational concept of philosophy. Kant links this concept to the political innovation of his (...) time, a republic devoted to human rights. He extends the concept by adding to it the right of nations and cosmopolitan law. Finally, Kant democratizes Plato's notion of philosopher kings with a concept of 'kingly people'. This book examines all aspects of this important, but neglected, body of Kant's writings. (shrink)
The Moral Limits of Law analyzes the related debates concerning the moral obligation to obey the law, conscientious citizenship, and state legitimacy. Modern societies are drawn in a tension between the centripetal pull of the local and the centrifugal stress of the global. Boundaries that once appeared permanent are now permeable: transnational legal, economic, and trade institutions increasingly erode the autonomy of states. Nonetheless transnational principles are still typically effected through state law. For law's subjects, this tension brings into focus (...) the interaction of legal and moral obligations and the legitimacy of state authority. This volume incorporates a comprehensive critical analysis of the methodology and substance of the debates in recent legal, political, and moral philosophy, regarding political obligation and the moral obligation to obey the law. The author argues that traditional accounts of political obligation that assume a bounded conception of the polity are no longer tenable. Higgins therefore presents an original theory of the conscientious agent's attitude towards law that accommodates the contemporary social tension between local and global obligations. (shrink)
This book argues for the ethical relevancy of contemporary fiction at the beginning of the 21st century. The writers discussed in Contemporary Fiction and the Ethics of Modern Culture pay close attention to the concrete realities of the everyday world, such as the feelings of isolation created in urban environments; the roles played by sports, drugs, advertising, and the media; and the widespread use of computer, telecommunication, and entertainment technologies. Through reading novels by such writers as David Foster Wallace, (...) Richard Powers, and Irvine Welsh, this book looks at how these works seek to transform the ways that readers live in the world. This book should appeal to scholars of contemporary literature, persons interested in cultural studies, critics interested in ethics, scholars of Gilles Deleuze and Felix Guattari, students of contemporary literature, and general readers of contemporary literature. (shrink)
An examination of the relationship between law and morals, this wide-ranging book develops themes addressed by Hart and Devlin, relating them to issues and events of current interest. Lee covers such timely concerns as: the Moral Majority; embryo experiments and surrogate motherhood; contraception, children's rights, and parents' rights; informed medical consent; equality and discrimination; and freedom of expression and pornography. Stressing the relevance of these issues to the lives of all of us, Lee argues for broader participation in debate on (...) this topic. (shrink)
Interest in interpretation has emerged in recent years as one of the main intellectual paradigms of legal scholarship. This collection of new essays in law and interpretation provides the reader with an overview of this important topic, written by some of the most distinguished scholars in the field. The book begins with interpretation as a general method of legal theorizing, and thus provides critical assessment of the recent "interpretative turn" in jurisprudence. Further chapters include essays on the nature of interpretation, (...) its objectivity, the possible determinacy of legal standards, and their nature. Concluding with a series of articles on the role of legislative intent in the interpretation of statutes, this work offers new and refreshing insights into this old controversy. (shrink)
This book explains an interaction between Soviet Russia and the West that has been overlooked in much of the analysis of the demise of the USSR. Legislation strikingly similar to the Marxist-inspired laws of Soviet Russia found its way into the legal systems of the Western world. Even though Western governments were at odds with the Soviet government, they were affected by the ideas it put forth. Western law was transformed radically during the course of the twentieth century, and much (...) of that change was along lines first charted in Soviet law. (shrink)
George, B. J. Jr. The evolving law of abortion.--Guttmacher, A. F. The genesis of liberalized abortion in New York: a personal insight.--Callahan, D. Abortion: some ethical issues.--Jakobovits, I. Jewish views on abortion.--Drinan, R. F. The inviolability of the right to be born.--Schwartz, R. A. Abortion on request: the psychiatric implications.--Fleck, S. A psychiatrist's views on abortion.--Niswander, K. R. Abortion practices in the United States: a medical viewpoint.--Macintyre, M. N. Genetic risk, prenatal diagnosis, and selective abortion.--Messerman, G. A. Abortion counselling: shall (...) women be permitted to know?--Pilpel, H. F. and Zuckerman, R. J. Abortion and the rights of minors. (shrink)
On liberty, by J. S. Mill.--Morals and the criminal law, by P. Devlin.--Immorality and treason, by H. L. A. Hart.--Lord Devlin and the enforcement of morals, by R. Dworkin.--Sins and crimes, by A. R. Louch.--Morals offenses and the model penal code, L. B. Schwartz.--Paternalism, by G. Dworkin.--Four cases involving the enforcement of morality: Shaw v. Director of Public Prosecutions; People v. Cohen; Repouille v. United States; Commonwealth v. Donoghue.--Bibliography (p. 149).
There have been serious controversies in the latter part of the 20th century about the roles and functions of scientific and medical research. In whose interests are medical and biomedical experiments conducted and what are the ethical implications of experimentation on subjects unable to give competent consent? From the decades following the Second World War and calls for the global banning of medical research to the cautious return to the notion that in controlled circumstances, medical research on human subjects is (...) in the best interest of the given individual and the broader population, this book addresses the key implications of experimentation on humans. This volume covers major ethical themes within biomedical research providing historical, philosophical, legal and policy reflections on the literature and specific issues in the field of research on human subjects. Focusing on special populations (the elderly, children, prisoners and the cognitively impaired) it represents the most up-to-date review of the special ethical and legal conflicts that arise with relation to experimentation on subjects from these groups. In the light of current initiatives for law reform pertaining to research ethics the world over, this volume provides a timely, comprehensive and provocative exploration of the field. The volume has been carefully organized to present important philosophical perspectives on organizing principles that should underlie any practical application. A forward-looking historical review of the regulatory regimes of principal jurisdictions, including of the legal controls already in place, provides the backdrop for future policy initiatives. Additionally, in the light of global restructuring of health care systems, several chapters have been devoted to epidemiological research and related issues. (shrink)
A number of prominent political philosophers, including Will Kymlicka and Joseph Carens, have suggested that one reason for limiting immigration is to protect culture, particularly what Kymlicka calls “societal culture”: “a territorially-concentrated culture, centered on a shared language which is used in a wide range of societal institutions, in both public and private life (schools, media, law, economy, government, etc.).” I situate this claim in the context of liberal nation-building and suggest that the arguments for the protection (...) of culture are often vague, confused or tend to conflict with liberal commitments. When clear, they gain their plausibility from other concerns (e.g., self-defense), not cultural protection. Finally, given plausible empirical assumptions, the dangers to societal culture are considerably exaggerated and provide little reason for preventing immigration. I then briefl y consider the case of general culture and whether there are some grounds to limit immigration to protect it, using the example of Iceland and aboriginal cultures to situate my arguments. Once again, I conclude that the appeal to culture to limit immigration is weak and philosophers searching for arguments against open borders should turn elsewhere. (shrink)
Introduction : law's oscillation between power and meaning -- Law's screen life : visualizing law in practice -- Images run riot : law on the landscape of the neo-baroque -- Theorizing the visual sublime : law's legitimation reconsidered -- The digital challenge : command and control culture and the ethical sublime -- Conclusion : visualizing law as integral rhetoric : harmonizing the ethical and the aesthetic.
In this paper I shall discuss the notion of argument, and the importanceof argument in AI and Law. I shall distinguish four areas where argument hasbeen applied: in modelling legal reasoning based on cases; in thepresentation and explanation of results from a rule based legal informationsystem; in the resolution of normative conflict and problems ofnon-monotonicity; and as a basis for dialogue games to support the modellingof the process of argument. The study of argument is held to offer prospectsof real progress (...) in the field of AI and law, and the purpose of this paperis to provide an overview of work, and the connection between the various strands. (shrink)
The field of artificial intelligence and law is remarkably diverse not just because it encompasses many areas of academic study but also because it attracts the interest of both the research and commercial worlds. While much of the research is no doubt too exploratory and tentative to be of direct relevance to practising lawyers, in other projects there is but a short step from the research laboratory to the marketplace.Given that most readers of this journal tend to be involved with, (...) or interested in, research findings in the field, it might well be asked to what extent there should also be coverage here of commercial projects in artificial intelligence and law. (shrink)
Dialogues and dialectics have come to playan important role in the field of ArtificialIntelligence and Law. This paper describes thelegal-theoretical and logical background of this role,and discusses the different services into whichdialogues are put. These services include:characterising logical operators, modelling thedefeasibility of legal reasoning, providing the basisfor legal justification and identifying legal issues,and establishing the law in concrete cases. Specialattention is given to the requirements oflaw-establishing dialogues.
The introduction of results of AI and Law research in actual legal practice advances disturbingly slow. One of the problems is that most research can be classified as either theoretical or pragmatic, while combinations of these two are scarce. This interferes with the need for feedback as well as with the need of getting support, both financially and from actual legal practice. The conclusion of this paper is that an emphasis on research that generates operational and sophisticated systems is necessary (...) in order to provide a future for AI and Law. (shrink)
We live in a morally flawed world. Our lives are complicated by what other people do, and by the harms that flow from our social, economic, and political institutions. Our relations as individuals to these collective harms constitute the domain of complicity. This book examines the relationship between collective responsibility and individual guilt. It presents a rigorous philosophical account of the nature of our relations to the social groups in which we participate, and uses that account in a discussion of (...) contemporary moral theory. Christopher Kutz shows that the two prevailing theories of moral philosophy, Kantianism and consequentialism, both have difficulties resolving problems of complicity. He then argues for a richer theory of accountability in which any real understanding of collective action not only allows but demands individual responsibility. (shrink)
Accounts of natural law moral philosophy and theology sought principles and precepts for morality, law, and other forms of social authority, whose prescriptive force was not dependent for validity on human decision, social influence, past tradition, or cultural convention, but through natural reason itself. This volume critically explores and assesses our contemporary culture wars in terms of: the possibility of natural law moral philosophy and theology to provide a unique, content-full, canonical morality; the character and nature of moral pluralism; (...) the limits of justifiable national and international policy seeking to produce and preserve human happiness, social justice, and the common good; the ways in which morality, moral epistemology, and social political reform must be set within the broader context of an appropriately philosophically and theologically anchored anthropology. This work will be of interest to philosophers, theologians, bioethicists, ethicists and political scientists. (shrink)