The principle of discrimination (or distinction, as it is sometimes called in legal circles) requires that soldiers treat civilians differently from fellow soldiers, generally not attacking the former except in extreme situations. The Geneva Conventions call for a clear separation of people into two camps: those who are protected from assault, including army medical personnel, injured soldiers, prisoners of war, and civilians on the one hand, and soldiers actively engaged in hostilities on the other hand. Since the Middle Ages, it (...) has been common to differentiate these people into two large groups, although there has not been wide agreement about which of the following groups were the most salient: civilians versus soldiers; noncombatants versus combatants; or the innocent versus the non-innocent (the guilty). In this chapter, I will argue that the principle of discrimination or distinction is most plausibly defended as an extension of the principle of humane treatment, and only on that basis is it to be seen as providing a nonutilitarian basis for deciding how to act during war. (shrink)
Machine generated contents note: 1. Introduction: normative principles of jus post bellum; Part I. Retribution: 2. Grotius, sovereignty, and the indictment of Al Bashir; 3. Transitional justice and the Just War tradition; 4. War crimes trials during and after war; Part II. Reconciliation: 5. Reconciliation of warring parties; 6. Reconciliation and the rule of law; 7. Conflicting responsibilities to protect human rights; Part III. Rebuilding: 8. Responsibility to rebuild and collective responsibility; 9. Responsibility to rebuild as a limitation on initiating (...) war; Part IV. Restitution and Reparation: 10. Restitution and restoration in jus post bellum; 11. A Grotian account of reparations; Part V. Proportionality and the End of War: 12. Proportionality and the fog of war. (shrink)
This paper discusses sovereignty and examines in detail Hobbes's debates with the two leading legal theorists of his day, Coke and Hale, both Lord Chief Justices of the King's Bench. I argue that Hobbes came to change his mind somewhat about the desirability of divided sovereignty by the time, near the end of his life, that he wrote the Dialogue . But I also argue that Hobbes should have developed more than a very thin conception of the rule of law. (...) Hobbes should have been more open to the ideas that the jurists of his day were developing, especially the idea that the judiciary should have independent status. (shrink)
The Rwandan genocide of 1994 occurred due to widespread complicity. I will argue that complicity can be the basis for legal liability, even for criminal liability, if two conditions are met. First, the person’s actions or inactions must be causally efficacious at least in the sense that had the person not committed these actions or inactions the harm would have been made significantly less likely to occur. Second, the person must know that her actions or inactions risk contributing to a (...) harmful enterprise, and must intend that these actions or inactions risk making this contribution. But it is not part of this analysis that the defendant must intend the harmful result. I explore the boundaries between legal and moral complicity and end with a discussion of how the analysis defended in the paper affects such questions as how many people in Rwanda should be prosecuted for the genocide which occurred due to widespread complicity. (shrink)
For hundreds of years procedural rights such as habeas corpus have been regarded as fundamental in the Anglo-American system of jurisprudence. In contemporary international law, fundamental norms are called jus cogens. Jus cogens norms are rights or rules that can not be derogated even by treaty. In the list that is often given, jus cogens norms include norms against aggression, apartheid, slavery, and genocide. All of the members of this list are substantive rights. In this paper I will argue that (...) some procedural rights, crucial for the fair functioning of criminal proceedings, such as habeas corpus, should also have the status of jus cogens norms. I will begin by explaining what it means for a right to have jus cogens status. And I will follow this with a defense of having procedural rights like habeas corpus added to the list of jus cogens norms. I will then rehearse some of the debates about the jus cogens status of procedural rights in the European Commission on Human Rights. At the end of this paper, I will look at the attempts to deal with the abuses at Guantanamo by the American Commission on Human Rights, and by the US and Australian courts, as a way to understand why there needs to be a stronger support for habeas corpus than is today provided by regional courts. (shrink)
Cottingham : Western philosophy : an anthology (second edition) -- Cahoone : from modernism to postmodernism : an anthology (expanded -- Second edition) -- Lafollette : ethics in practice : an anthology (third edition) -- Goodin and Pettit: contemporary political philosophy: an anthology (second -- Edition) -- Eze: african philosophy : an anthology -- McNeill and Feldman : continental philosophy : an anthology -- Kim and Sosa : metaphysics : an anthology -- Lycan and Prinz : mind and cognition : (...) an anthology (third edition) -- Kuhse and Singer : bioethics : an anthology (second edition) -- Cummins and Cummins : minds, brains, and computers : the foundations of -- Cognitive science : an anthology -- Sosa, Kim, Fantl, and McGrath epistemology : an anthology (second edition) -- Kearney and Rasmussen : continental aesthetics, romanticism to -- Postmodernism : an anthology -- Martinich and Sosa : analytic philosophy : an anthology -- Jacquette : philosophy of logic : an anthology -- Jacquette : philosophy of mathematics : an anthology -- Harris, Pratt, and Waters : American philosophies : an anthology -- Emmanuel and Goold: modern philosophy from Descartes to Nietzsche : an anthology -- Scharff and Dusek : philosophy of technology ; the technological condition : an anthology -- Light and Rolston : environmental ethics : an anthology -- Taliaferro and Griffiths : philosophy of religion : an anthology -- Lamarque and Olsen : aesthetics and the philosophy of art; the analytic -- Tradition : an anthology -- John and Lopes : philosophy of literature ; contemporary and classic -- Readings : an anthology -- Cudd and Andreasen : feminist theory : a philosophical anthology -- Carroll and Choi : philosophy of film and motion pictures : an anthology -- Lange : philosophy of science : an anthology -- Shafer-Landau and Cuneo : foundations of ethics : an anthology -- Curren : philosophy of education : an anthology -- Shafer-Landau : ethical theory : an anthology -- Cahn and Meskin : aesthetics : a comprehensive anthology -- McGrew, Alspector-Kelly and Allhoff : the philosophy of science : an historical -- Anthology -- May and Brown : the philosophy of law : classic and contemporary readings -- Forthcoming -- Rosenberg and ARP : philosophy of biology : an anthology. (shrink)
International Criminal Law and Philosophy is the first anthology to bring together legal and philosophical theorists to examine the normative and conceptual foundations of international criminal law. In particular, through these essays the international group of authors addresses questions of state sovereignty; of groups, rather than individuals, as perpetrators and victims of international crimes; of international criminal law and the promotion of human rights and social justice; and of what comes after international criminal prosecutions, namely, punishment and reconciliation. International criminal (...) law is still an emerging field, and as it continues to develop, the elucidation of clear, consistent theoretical groundings for its practices will be crucial. The questions raised and issues addressed by the essays in this volume will aid in this important endeavor. (shrink)
War has been a key topic of speculation and theorizing ever since the invention of philosophy in classical antiquity. This anthology brings together the work of distinguished contemporary political philosophers and theorists who address the leading normative and conceptual issues concerning war. The book is divided into three parts: initiating war, waging war, and ending war. The contributors aim to provide a comprehensive introduction to each of these main areas of dispute concerning war. Each essay is an original contribution to (...) ongoing debates on various aspects of war and also provides a survey of the main topics in each subfield. Serving as a companion to the theoretical issues pertaining to war, this volume also is an important contribution to debates in political philosophy. It can serve as a textbook for relevant courses on war offered in philosophy departments, religious studies programs, and law schools. (shrink)
Despite the fact that torture of prisoners has been condemned by every major document in international law, it has seemed to some, especially those in the Bush Administration, that terrorism creates a special case for how prisoners are to be treated. The prisoner may belong to a “cell” of those who have committed themselves to the use of tactics that risk horrible consequences for many innocent people. The prisoner may have information about future attacks on civilian populations that could, if (...) learned, be instrumental in the prevention of these attacks. Nonetheless, I will argue that normally even suspected international terrorists should be treated humanely in that they are not subject to torture when captured and imprisoned. Our humanity demands as much.I will ask what it is about humanity that might restrict or prohibit the use of torture and other forms of physical coercion in the treatment of prisoners. I will attempt to explain why torture has been so roundly condemned and yet why torture, especially in ticking time-bomb cases, has been seen as justifiable. In section 1, I argue that humane treatment should be seen as the centerpiece of international humanitarian law. In section 2, I discuss a 1999 case from Israel concerning soldiers who committed torture to obtain information from suspected terrorists in the Occupied Territories. In section 3, I discuss how the principle of proportionality complicates the picture, and end with some conclusions about what restrictions should be recognized in times of war, concerning what are sometimes called “the laws of humanity.”. (shrink)
The practice of confessing one's sexual sins has historically provided boys and men with mixed messages. Engaging in coercive sex is publicly condemned; yet it is treated as not significantly different from other transgressions that can be easily forgiven. We compare Catholic confessional practices to those of psychoanalytically oriented male writers on masculinity. We argue that the latter is no more justifiable than the former, and propose a progressive confessional mode for discussing male sexuality.
Children are the real victims of world hunger: at least 70% of the malnourished people of the world are children. By best estimates forty thousand children a day die of starvation (FAO 1989: 5). Children do not have the ability to forage for themselves, and their nutritional needs are exceptionally high. Hence, they are unable to survive for long on their own, especially in lean times. Moreover, they are especially susceptible to diseases and conditions which are the staple of undernourished (...) people: simple infections and simple diarrhea (UNICEF 1993: 22). Unless others provide adequate food, water, and care, children will suffer and die (WHO 1974: 677, 679). This fact must frame any moral discussions of the problem. And so it does — at least pre-philosophically. When most of us first see pictures of seriously undernourished children, we want to help them, we have a sense of responsibility to them, we feel sympathy toward them (Hume 1978: 368-71). Even those who think we needn't or shouldn't help the starving take this initial response seriously: they go to great pains to show that this sympathetic response should be constrained. They typically claim that assisting the hungry will demand too much of us, or that assistance would be useless and probably detrimental. The efforts of objectors to undermine this natural sympathetic reaction would be pointless unless they saw its psychological force. We want to explain and bolster this sympathetic reaction — this conviction that those of us in a position to help are responsible to the.. (shrink)
Children are the real victims of world hunger: at least 70% of the malnourished people of the world are children. By best estimates forty thousand children a day die of starvation (FAO 1989: 5). Children do not have the ability to forage for themselves, and their nutritional needs are exceptionally high. Hence, they are unable to survive for long on their own, especially in lean times. Moreover, they are especially susceptible to diseases and conditions which are the staple of undernourished (...) people: simple infections and simple diarrhea (UNICEF 1993: 22). Unless others provide adequate food, water, and care, children will suffer and die (WHO 1974: 677, 679). This fact must frame any moral discussions of the problem. (shrink)
We criticize the following views: only the rapist is responsible since only he committed the act; no one is responsible since rape is a biological response to stimuli; everyone is responsible since men and women contribute to the rape culture; and patriarchy is responsible but no person or group. We then argue that, in some societies, men are collectively responsible for rape since most benefit from rape and most are similar to the rapist.
Our primary focus is the concept of intimacy, especially in the context of adult American male relationships. We begin with an examination of comradeship, a nonintimate form of friendship, then develop an account of the nature and value of intimacy in friendship. We follow this with discussions of obstacles to intimacy and of Aristotle's views. In the final section, we discuss the process of men attaining intimacy.
Corporate property rights present an interesting challenge to the liberal conception of property rights, for it is unclear that the self-respect of individuals is promoted by the existence of a system of property rights for corporations. I argue that it is difficult even to identify who the individuals are who are the owners of large corporations, and why these individuals should be given the same claims, protections and immunities as other property rights holders since the liabilities of corporate property rights (...) holders are not the same as of those, for instance, who own their own homes. In this paper I first try to understand who it is who owns the large corporation. Secondly, I show that the limited liability of these corporate property owners makes the justification of corporate property rights quite difficult, from the classical liberal perspective. I end with a few brief remarks on changes in legal policy which would be consistent with my arguments on the nature and justification of corporate property rights. (shrink)
