This thesis considers two allegations which conservatives often level at no-fault systems — namely, that responsibility is abnegated under no-fault systems, and that no-fault systems under- and over-compensate. I argue that although each of these allegations can be satisfactorily met – the responsibility allegation rests on the mistaken assumption that to properly take responsibility for our actions we must accept liability for those losses for which we are causally responsible; and the compensation allegation rests on the mistaken assumption that tort (...) law’s compensatory decisions provide a legitimate norm against which no-fault’s decisions can be compared and criticized – doing so leads in a direction which is at odds with accident law reform advocates’ typical recommendations. On my account, accident law should not just be reformed in line with no-fault’s principles, but rather it should be completely abandoned since the principles that protect no- fault systems from the conservatives’ two allegations are incompatible with retaining the category of accident law, they entail that no-fault systems are a form of social welfare and not accident law systems, and that under these systems serious deprivation – and to a lesser extent causal responsibility – should be conditions of eligibility to claim benefits. (shrink)
How are we to understand criminal law reform? The idea seems simpleâthe criminal law on the books is wrong: it should be changed. But 'wrongâ how? By what norms 'wrongâ? As soon as one tries to answer those questions, the issue becomes more complex. One kind of answer is that the criminal law is substantively wrong: that is, we assume valid norms of background political morality, and we argue that doctrinally the criminal law on the books does not embody (...) those norms. Another kind of answer is that the criminal law as it stands presupposes certain empirical facts, and yet those facts do not hold. Traditionally, criminal law reform has been informed by both these answers. Analytical theorists examine doctrine for its conceptual structure, and social scientists examine the actual workings of the criminal justice system. This tidy picture is, however, challenged by social constructivist accounts of the criminal law. They challenge the stability and conceptual purity of doctrine, and they challenge the objectivity of social science. On the basis of these challenges, they undermine the ambitions of traditional criminal law reform, and argue that the only reforms to the criminal law that matter are politicized onesâthat criminal law reform is pointless unless it serves the interests of the marginalized and the dispossessed. It seems undeniable that in some sense our perceptions of crime in our society are indeed moulded by social forces, and that crime does not exist independently of the social structures and processes that help to define and control it. But why should those insights have the implications for our understanding of criminal law reform that they are alleged to have? How could it follow from those insights that criminal law reform either becomes radicalized or valueless? The aim of this paper is to show that what can legitimately be taken from the emphasis on the social constructedness of crime does not require wholesale abandonment of the traditional picture of criminal law reform, even though it may require some modifications of that picture. (shrink)
This paper compares and critically comments upon certain aspects of the Canadian Law Reform Commission Report,Euthanasia, Aiding Suicide and Cessation of Treatment, and the United States Presidential Commission Report,Deciding to Forego Life-Sustaining Treatment. It focuses on their positions on euthanasia and on the general principles, values, and procedures that ought to govern practices of foregoing life-sustaining treatment. The paper first comments on the recent debate over the moral relevance of the killing/letting die distinction, since this issue appears crucial in (...) assessing the rationality of the current, absolute prohibitions of direct killing in medical contexts, embodied both in law and in codes of ethics. This issue bears upon a question in the closing sectionâwhether the withdrawal of foods and fluids is ever morally permissible. (shrink)
Alstin, Zac At a March lecture in Canberra, Australian ethicist and pro-abortion activist Dr Leslie Cannold, spoke about the 'unfinished business' of abortion law reform in Australia. A frustrated friend sent me the transcript of this lecture and asked me to write something in response. But given the context of Cannold's lecture: a pro-abortion speech to a pro-abortion audience about pro-abortion law reform, a direct response seems impertinent. Plus, as a rule of thumb, when you play 'Pin the (...) Tail' on a live donkey you're liable to get a kick in the teeth. It makes more sense to take Cannold's speech at face value as evidence of an abortion activist's self-imposed mission in our society. To attack her for saying what she believes is perhaps in Cannold's own words "like blaming a leopard for having spots.". (shrink)
Riordan, Marcia This report on the Victorian Abortion Law Reform Bill 2008 particularly considers the fact that it has denied health care professionals any right of conscientious objection. It sees this as part of an international attempt to deny conscientious objection against abortion, and to enforce abortion as an international human right.
Campbell, Ray Trying to fully understand what was behind the recent amendments to the Criminal Code in Queensland and the continued pressure to change the law on abortion is something like trying to do a jigsaw puzzle. However, in this case there are one or two foreign pieces that really do not contribute to the true picture, but are introduced as a distraction.
In "Torts, Egalitarianism and Distributive Justice" (Ashgate, 2007), Tsachi Keren-Paz presents impressingly detailed analysis that bolsters the case in favour of incremental tort law reform. However, although this book's greatest strength is the depth of analysis offered, at the same time supporters of radical law reform proposals may interpret the complexity of the solution that is offered (and its respective cost) as conclusive proof that tort law can only take adequate account of egalitarian aims at an unacceptably high (...) cost. (shrink)
John Stuart Mill argued in On Liberty that the sole purpose for which the state can rightly exercise power over an individual is to prevent harm to others. "His own good, either physical or moral," Mill wrote, "is not a sufficient warrant." A century and a half later, although many people think a limited amount of state paternalism is reasonable-for example, to require people to wear seat belts when in a car and motorcycle helmets when riding a motorbike-we tend to (...) agree that the state should not seek to impose its own conception of what is morally right on individuals who are not harming others. One of the implications of this principle is that the state should not prevent people who are terminally or incurably ill from ending their lives when they see fit, as long as they have reached a considered decision about this. Who else can make a better judgment about when life is worth living than the person whose life it is? (shrink)
Varcoe, Shane Until recently, there has been a largely unnoticed contingent of stakeholders who have not merely abandoned the ideal scenario of a drug free culture, but have quickly stepped through a phase of passive indifference, into what is a 'pro-drug' position in active pursuit of rights for individuals to be protected and supported in their consumption of currently illicit drugs. The players engaged in attempting to bring about this disturbing cultural shift are varied, but certainly these advocates are 'spinning' (...) data and even engaging noble platforms such as 'human rights' to speciously gain leverage. A key strategy in what is now a further 'push' down the slippery slope of dysfunction is the notion of normalisation. (shrink)
It could be argued that tort law is failing, and arguably an example of this failure is the recent public liability and insurance (‘PL&I’) crisis. A number of solutions have been proposed, but ultimately the chosen solution should address whatever we take to be the cause of this failure. On one account, the PL&I crisis is a result of an unwarranted expansion of the scope of tort law. Proponents of this position sometimes argue that the duty of care owed by (...) defendants to plaintiffs has expanded beyond reasonable levels, such that parties who were not really responsible for another’s misfortune are successfully sued, while those who really were to blame get away without taking any responsibility. However people should take responsibility for their actions, and the only likely consequence of allowing them to shirk it is that they and others will be less likely to exercise due care in the future, since the deterrents of liability and of no compensation for accidentally self-imposed losses will not be there. Others also argue that this expansion is not warranted because it is inappropriately fueled by ‘deep pocket’ considerations rather than by considerations of fault. They argue that the presence of liability insurance sways the judiciary to award damages against defendants since they know that insurers, and not the defendant personally, will pay for it in the end anyway. But although it may seem that no real person has to bear these burdens when they are imposed onto insurers, in reality all of society bears them collectively when insurers are forced to hike their premiums to cover these increasing damages payments. In any case, it seems unfair to force insurers to cover these costs simply because they can afford to do so. If such an expansion is indeed the cause of the PL&I crisis, then a contraction of the scope of tort liability, and a pious return to the fault principle, might remedy the situation. However it could also be argued that inadequate deterrence is the cause of this crisis. On this account the problem would lie not with the tort system’s continued unwarranted expansion, but in the fact that defendants really have been too careless. If prospective injurers were appropriately deterred from engaging in unnecessarily risky activities, then fewer accidents would ever occur in the first place, and this would reduce the need for litigation at its very source. If we take this to be the cause of tort law’s failure then our solution should aim to improve deterrence. Glen Robinson has argued that improved deterrence could be achieved if plaintiffs were allowed to sue defendants for wrongful exposure to ongoing risks of future harm, even in the absence of currently materialized losses. He argues that at least in toxic injury type cases the tortious creation of risk [should be seen as] an appropriate basis of liability, with damages being assessed according to the value of the risk, as an alternative to forcing risk victims to abide the outcome of the event and seek damages only if and when harm materializes. In a sense, Robinson wishes to treat newly-acquired wrongful risks as de-facto wrongful losses, and these are what would be compensated in liability for risk creation (‘LFRC’) cases. Robinson argues that if the extent of damages were fixed to the extent of risk exposure, all detected unreasonable risk creators would be forced to bear the costs of their activities, rather than only those who could be found responsible for another’s injuries ‘on the balance of probabilities’. The incidence of accidents should decrease as a result of improved deterrence, reduce the ‘suing fest’, and so resolve the PL&I crisis. So whilst the first solution involves contracting the scope of tort liability, Robinson’s solution involves an expansion of its scope. However Robinson acknowledges that LFRC seems prima facie incompatible with current tort principles which in the least require the presence of plaintiff losses, defendant fault, and causation to be established before making defendants liable for plaintiffs’ compensation. Since losses would be absent in LFRC cases by definition, the first evidentiary requirement would always be frustrated, and in its absence proof of defendant fault and causation would also seem scant. If such an expansion of tort liability were not supported by current tort principles then it would be no better than proposals to switch accident law across to no-fault, since both solutions would require comprehensive legal reform. However Robinson argues that the above three evidentiary requirements could be met in LFRC cases to the same extent that they are met in other currently accepted cases, and hence that his solution would therefore be preferable to no-fault solutions as it would only require incremental but not comprehensive legal reform. Although I believe that actual losses should be present before allowing plaintiffs to seek compensation, I will not present a positive argument for this conclusion. My aim in this paper is not to debate the relative merits of Robinson’s solution as compared to no-fault solutions, nor to determine which account of the cause of the PL&I crisis is closer to the truth, but rather to find out whether Robinson’s solution would indeed require less radical legal reform than, for example, proposed no-fault solutions. I will argue that Robinson fails to show that current tort principles would support his proposed solution, and hence that his solution is at best on an even footing with no-fault solutions since both would require comprehensive legal reform. (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)
Karl Barth and the displacement of natural law in contemporary Protestant theology -- Development of the natural-law tradition through the high Middle Ages -- John Calvin and the natural knowledge of God the Creator -- Peter Martyr Vermigli and the natural knowledge of God the Creator -- Natural law in the thought of Johannes Althusius -- Francis Turretin and the natural knowledge of God the Creator.
Global Prescriptions scrutinizes the movement to export a U.S.-oriented version of the " rule of law," found in the activities of philanthropic foundations, the World Bank, the U.S. Agency for International Development, and several other developmental organizations. Yves Dezalay and Bryant G. Garth have brought together a group of scholars from a variety of disciplines--anthropology, economics, history, law, political science, and sociology--to create tools for understanding this movement. Comprised of two sections, the volume first develops theoretical perspectives key to an (...) understanding of the production and impact of new "global legal prescriptions." The second part shifts attention to the national importation of these legal orthodoxies. The scholars provide a diverse set of sophisticated approaches, both to the circumstances promoting the production of these prescriptions and to the limitations of the prescriptions in the different national settings. Thus, Global Prescriptions provides a unique treatment for readers interested in globalization generally or the potential spread of the "rule of law" in particular. This volume will intrigue scholars and students interested in a political science, economics, history, anthropology, law, and sociology. Contributors are Jeremy Adelman, Robert Boyer, Elizabeth Heger Boyle, Miguel Angel Centeno, Heinz Klug, Larissa Adler Lomnitz, John W. Meyer, Setsuo Miyazawa, Hiroshi Otsuka, Rodrigo Salazar, Kathryn Sikkink, Anne-Marie Slaughter, and Catalina Smulovitz. Yves Dezalay is Director of Research, National Center for Scientific Research, Paris. Bryant G. Garth is Director of the American Bar Foundation. (shrink)
This paper will begin with a brief account of the mandate and description of the Law Reform Commission of Canada and its Protection of Life Project, secondly, point to a limitation imposed upon it by the nature of health law in Canada and, thirdly propose some basic questions which such commissions have both the luxury and the duty to wrestle with and resolve. In my view it is these fundamental challenges which ought to be the major components of the (...) standards by which national commissions such as ours are judged. (shrink)
The problem of the judge: judicial freedom of decision, its necessity and method, by F. Gény.--Judicial freedom of decision, its principles and objects, by E. Ehrlich.--Dialecticism and technicality; the need of sociological method, by J. G. Gmelin.--Equity and law, by G. Kiss.--The perils of emotionalism, by F. Berolzheimer.--Judicial interpretation of enacted law, by J. Kohler.--Courts and legislation, by R. Pound.--The operation of the judicial function in English law, by H. B. Gerland.--Codified law and case-law, by É. Lambert.--Methods of juridical thinking, (...) by K. G. Wurzel.--The problem of the legislator: methods for scientific codification, by A. Alvarez.--The legislative technic of modern civil codes, by F. Gény.--Scientific method in legislative drafting, by E. Freund. (shrink)
This paper explores some of the important parallels between recent reforms to legal rules for the admissibility of scientific and expert evidence, exemplified by the US Supreme Court's decision in Daubert v Merrell Dow Pharmaceuticals, Inc. in 1993, and similar calls for reforms to medical practice, that emerged around the same time as part of the Evidence-Based Medicine (EBM) movement. Similarities between the “movements” can be observed in that both emerged from a historical context where the quality of medicine and (...) legal approaches to science were being subjected to growing criticism, and in the ways that proponents of both movements have used appeals to “folk epistemologies” of science to help legitimate their reform aspirations. The term folk epistemology is used to describe the weaving together of formal and informal images of scientific method with normative and pragmatic concerns such as eradicating “junk science”, and promoting medical best practice. Perhaps unsurprisingly, given the unfocused breadth of these aspirations the implications of these “reforms” for medical and legal practice have not been straightforward, although they do represent an important new set of rhetorical resources to critique and or legitimate expertise in medical and legal domains. Discussion closes, by noting the growth of calls for these movements to reciprocate in areas where law and medicine intersect, such as medical negligence litigation. (shrink)
The reform of offenders is often said to be one of the morally legitimate aims of punishment. After briefly surveying the history of reformist thinking I examine the ‘quasi-reform’ theories, as I call them, of H. Morris, J. Hampton and A. Duff. I explain how they conceive of reform, and what role they take it to have in the criminal justice system. I then focus critically on one feature of their conception of reform, namely, the claim (...) that a reformed offender will obey the relevant laws for moral reasons. I argue on consequentialist grounds that this requirement is objectionable. Consequentialism has always accepted reform as one legitimate goal of punishment, but it will not accept the narrowly moral conception of it that we find in the quasi-reform theorists. I situate my criticism within criminal law theory, but I also consider the claim in moral theory that acting from moral motives has intrinsic value. (shrink)
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)
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.
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)
For the first time, full coverage of the intersections of philosophy and law From articles centering on the detailed and doctrinal exposition of the law to those which reside almost wholly within the realm of philosophical ethics, this volume affords comprehensive treatment to both sides of the philosophicolegal equation. Systematic and sustained coverage of the many dimensions of legal thought gives ample expression to the true breadth and depth of the philosophy of law, with coverage of: *The modes of knowing (...) and the kinds of normativity used in the law *Studies in international, constitutional, criminal, administrative, persons and property, contracts and tort law-including their historical origins and worldwide ramifications *Current legal cultures-such as common law and civilian, European, and Aboriginal *Influential jurisprudents and their biographies *All influential schools and methods Coverage of all major historical, cultural, and geographical settings for legal philosophy A thorough understanding of any legal issue necessitates an acquaintance with its antecedents and its corollaries. Thus, added to the consideration of other current legal cultures outside of North America are treatments of other periods significant to legal thinking, such as the Hellenistic, Sixteenth-century, or Federalist. Discussion of the practice of legal philosophy today In every major area where public policy gives rise to philosophical inquiry regarding the law, debates and discussions are covered in full: tort reform, protection of life and death, gay rights, objectives in punishment, non-putative detention, international deterrence, legitimacy of government. And the historical and international dimensions of these issues-how they are resolved in other times and places-are not lost. Contributions from prominent legal and philosophical scholars from around the world The international array of more than 300 contributors from over forty countries complements the volume's international scope. With many contributors being forces in the very debates they write of, some fifty percent of them work in the law-as judges, jurists or jurisprudence-and another half are philosophers in the social sciences and humanities. Their work spans the practice that is taken for philosophy of law today. Special features *Contributions of more than 300 international scholars from more than 40 countires *Extensive bibliographies at the end of each entry *Detailed subject guide for easy access to the main topics covered *Comprehensive, analytical index. (shrink)
Why should sovereign states obey international law? What compels them to owe allegiance to a higher set of rules when each country is its own law of the land? What is the basis of their obligations to each other? Conventional wisdom suggests that countries are too different from one another culturally to follow laws out of mere loyalty to each other or a set of shared moral values. Surely, the prevailing view holds, countries act simply out of self-interest, and they (...) eventually consent to norms of international law to regulate matters of common interest.In this groundbreaking book, Fernando Tesón goes against this prevailing thought by arguing, in the Kantian tradition, that a shared respect for individual human rights underpins not just the obligation countries feel to follow international law but also international laws themselves and even the very legitimacy of nations in the eyes of the international community. Tesón, both a lawyer and a philosopher, proposes that an overlapping respect for human rights has created a moral common ground among the countries of the world; and moreover, that such an outlook is the only one that is rationally defensible. It is this common set of values rather than self-interest that ultimately provides legitimacy to international law. Using the tools of moral philosophy, Tesón analyzes the concepts of sovereignty, intervention, and national interest; the contributions of social contact theory, game theory, and feminist theory; and the puzzles of self-determination and group rights.More than simply outlining his theory, Tesón goes on to give detailed examples of international laws, international institutions, and their human rights foundations, putting his ideas to work and addressing legal reforms called for by the theory. He suggests that treaties, for example, should be considered binding if, and only if, the consent to the treaty was given by a genuinely representative government, one that acts out of interest for the human rights of its citizens. Although the theoretical achievement of this book is to challenge received wisdom on the foundation of international law, the practical ambition is a call to reform the international legal system for the post–Cold War era, to substitute for the old order one that gives primacy to human dignity and freedom over state power. (shrink)
Obesity is a particularly vexing public health challenge, since it not only underlies much disease and health spending but also largely stems from repeated personal behavioral choices. The newly enacted comprehensive health reform law contains a number of provisions to address obesity. For example, insurance companies are required to provide coverage for preventive-health services, which include obesity screening and nutritional counseling. In addition, employers will soon be able to offer premium discounts to workers who participate in wellness programs that (...) emphasize behavioral choices. These policies presume that government intervention to reduce obesity is necessary and justified. Some people, however, argue that individuals have a compelling interest to pursue their own health and happiness as they see fit, and therefore any government intervention in these areas is an unwarranted intrusion into privacy and one's freedom to eat, drink, and exercise as much or as little as one wants. This paper clarifies the overlapping individual, employer, and social interest in each person's health generally to avoid obesity and its myriad costs in particular. The paper also explores recent evidence on the impact of government interventions on obesity through case studies on food labeling and employer-based anti-obesity interventions. Our analysis suggests a positive role for government intervention to reduce and prevent obesity. At the same time, we discuss criteria that can be used to draw lines between government, employer, and individual responsibility for health, and to derive principles that should guide and limit government interventions on obesity as health reform's various elements (e.g., exchanges, insurance market reforms) are implemented in the coming years. (shrink)
At present UK Law states that the unborn child only becomes a legal person invested with legal rights and full protections, like other human persons, at birth. This article critiques the present legal position of setting the threshold for legal personality at birth, showing its inconsistencies and fundamentally pragmatic basis. Against this background, it is argued that a principled approach towards unborn life is necessary, which reflects in law the reality that the unborn child is a type of human person (...) deserving protection as it develops through the continuum of human personhood – from embryonic personhood, to infant personhood and ultimately into adult personhood. Human personhood is defined as a union of a material and immaterial self, meaning that at every stage of their development they are never a “potential person,” but rather a “person with potential” even if it is not actualized through miscarriage, premature death, or disability. This moral and philosophical reasoning is what justifies protecting the sanctity of unborn life in law. The rest of the article explores and critiques the alternative static legal threshold for ascribing legal personality, at conception, implantation and viability. Having considered the practical moral, legal and philosophical problems of these alternatives; the final proposal for law reform combines all three of these thresholds in a proposal for a “dynamic” threshold for legal personality commencing at conception, which would render birth as an irrelevant threshold for moral and legal reasoning about the unborn. (shrink)
For the first time in history, genetics will enable science to completely identify each human as genetically unique. Will this knowledge reinforce the trend for more individual liberties or will it create a ‘brave new world’? A law policy approach to the problems raised by the human genome project shows how far our democratic institutions are from being the proper forum to discuss such issues. Because of the fears and anxiety raised in the population, and also because of its wide (...) implications on the everyday life, the human genome analysis more than any other project needs to succeed in setting up such a social assessment. Keywords: human genome project, judiciary law policy, legislative activity, new ethics institutions, methodology in law reform, public debate, social consensus CiteULike Connotea Del.icio.us What's this? (shrink)
McGovern, Kevin After a brief account of the Victorian Law Reform Act 2008, this article reports on three responses to this law in the last year. Because Section 8 of this law restricts the healthcare practitioner's usual right of conscientious objection, this article also discusses conscience and conscientious objection.
In this article, I argue that - despite the absence of any clear influence of one theory on the other - the legal theories of Dworkin and Hegel share several similar and, at times, unique positions that join them together within a distinctive school of legal theory, sharing a middle position between natural law and legal positivism. In addition, each theory can help the other in addressing certain internal difficulties. By recognizing both Hegel and Dworkin as proponents of a position (...) lying in between natural law and legal positivist jurisprudence, we can gain clarity in why their general legal theories seem to fit uncomfortably, if indeed they can be said to fit at all, within so many different camps - while fitting comfortably in no particular camp - as well as highlight what has been overlooked. (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)
A spectre is haunting legal positivists – and perhaps jurisprudes more generally – the spectre of the normativity of law. Whatever else law is, it is sometimes said, it is normative, and so whatever else a philosophical account of law accounts for, it should account for the normativity of law. But law is at least partially a social matter, its content at least partially determined by social practices. And how can something social and descriptive in this down-to-earth kind of way (...) be normative? This is presumably a problem for any theory of law, but it is especially acute for legal positivism, according to which (roughly speaking) all there is to facts about legality are such descriptive social facts. If this is so, the thought goes, the task of accommodating the law’s normativity immediately becomes both more daunting, and more urgent. Unfortunately, though, it is entirely unclear what the problem of the normativity of law is supposed to be. Indeed, I suspect that there is no one problem here, as different people seem to have in mind different problems when they use this unhelpful phrase. At least one family of issues people seem to have in mind when they talk about the normativity of law is a host of issues pertaining to the reason-giving force of the law. The law, it is sometimes said, gives reasons for action, and a theory of law should accommodate this obvious fact. But even when we focus just on questions regarding the reason-giving force of the law (and from now on I will restrict myself to just those, leaving other things people may have in mind when they talk about the normativity of law for another occasion), it is still not clear what the problem is. Indeed, my main purpose in this paper is to make some progress in understanding the relevant question here. And my conclusion is going to be somewhat skeptical: Once we are clear on what reason-giving in general consists in, and on what reason-giving powers the law actually has, there is not much by way of a problem here that needs to be solved, not a deep and interesting phenomenon here that theories of law need to accommodate, and that therefore places adequacy constraints on plausible theories of the nature of law.. (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)
Abstract: This paper responds to the question posed in the announcement of the conference at Brooklyn Law School at which it was presented: if and how [the inquiry into the reliability of proffered scientific testimony mandated by Daubert] relates to 'truth,' and whose view of the truth should prevail. The first step is to sketch the legal history leading up to Daubert, and to explore some of the difficulties Daubert brought in its wake; the next, to develop an account of (...) truth in the sciences that combines a full acknowledgment of the fallibility and incompleteness of the scientific enterprise with a robustly objective conception of truth - which helps us understand why the legal system often gets less than the best out of science; and finally, exploring the concept of legal truth, to show how false scientific clams sometimes get entrenched as legally reliable. (shrink)
Focused on five prominent scholars of international law, and casting light on the related institutions which frequently engaged them, the present book provides insight into chief currents of international law during the last decades of the twentieth century. Spanning the gap, in some degree, between Anglo-American and continental approaches to international law, the volume consists of short intellectual portraits, combined with interviews, of selected specialists in international law. The interviews were conducted by the editor, Antonio Cassese, between 1993 and 1995 (...) though the present volume was published only last year. -/- Cassese, an Italian jurist and international lawyer, was Professor of International Law at the University of Florence (1975-2008) and specialized in public international law. Among other posts held, he was the first President of the International Criminal Tribunal for the former Yugoslavia, the first President of the Special Tribunal for Lebanon and chaired the UN Inter-national Inquiry into Crimes in Darfur. He authored International Law (2005), a comprehensive commentary on the subject (which makes a fine companion volume to the present book). He was also editor in chief of the Oxford Companion to International Criminal Justice (2009) and founded the Journal of International Criminal Justice. His work has been credited as providing a chief impetus in the revival of international criminal law from its post-Nuremberg hiatus. -/- Cassese seeks to bring out the central ideas associated with each of his five selected scholarly jurist-professors, focusing on international law and international relations; and he aims to place each of the five scholars within the context of their own intellectual and philosophical back-grounds - and their views of the development of the international community. The interviews were based on Cassese’s “basic questionnaire,” which is reproduced in the opening pages of the volume (pp.xvii-xix). Overall, the book provides an engaging, though intricate, perspective on contemporary developments in international law combined with discussion of its roots in the post-WWII era and in legal philosophies. (shrink)
David McCarthy has recently suggested that our compensation and liability practices may be interpreted as reflecting a fundamental norm to hold people liable for imposing risk of harm on others. Independently, closely related ideas have been criticised by Stephen R. Perry and Arthur Ripstein as incompatible with central features of negligence law. We aim to show that these objections are unsuccessful against McCarthy’s Risk–liability theory, and that such an approach is a promising means both for understanding the moral basis of (...) liability for negligence and for reasoning about possible reforms of the institution of negligence law. (shrink)
In newly emerging democracies, succeeding governments have numerous policy tasks for the purpose of developing the free market and the democratic process. In such legal systems, policy-oriented views of law, which regard law as a policy tool for diminishing public problems, seem descriptively pertinent and prescriptively helpful. This is also the case in mature democratic legal systems, where the public problems faced by governments become more and more complex. Policy-directional views of law do not necessarily imply that law is a (...) value-neutral means that can serve any possible political ends. It is widely recognized among legal theorists and practitioners, with notable exceptions represented by exclusive legal positivists, that the law involves moral values, including justice and liberty. In the present essay, I focus on one version of policy-oriented views of law that is based on the fundamental ideals of justice and interest. By sketching out this version, I attempt to shed new light on some concepts and issues in jurisprudence. To begin, I articulate the concept of justice and identify the difficulties that interest-based conceptions of justice encounter, by referring to some classical works. I also make a distinction between different conceptions of interest. Next, the two basic concepts in law — rights and liberty — are explained in terms of justice and interest. Efficiency, which has been largely neglected in traditional jurisprudence notwithstanding its practical significance, is also briefly discussed. Then, I turn to exploring the implications that the law-as-policy theory grounded on justice and interest might have for the foundations of two legal domains: criminal law and laws governing political participation. Some allegations and objections against this theory are described, and responses to them are given. The essay concludes by noting the questions that remain open in this theory. (shrink)
Larry Alexander and Peter Westen each critically examine different topics from my recent collection of essays, The Philosophy of Criminal Law. Alexander focuses on my “Rapes Without Rapists,” “Mistake of Law and Culpability,” and “Already Punished Enough.” Westen offers a more extended commentary on my “Transferred Intent.” I briefly reply to each critic in turn and try to extend the debates in new directions.
According to many traditional accounts, one important difference between international and domestic law is that international law depends on the consent of the relevant parties (states) in a way that domestic law does not. In recent years this traditional account has been attacked both by philosophers such as Allen Buchanan and by lawyers and legal scholars working on international law. It is now safe to say that the view that consent plays an important foundational role in international law is a (...) contested one, perhaps even a minority position, among lawyers and philosophers. In this paper I defend a limited but important role for actual consent in legitimating international law. While actual consent is not necessary for justifying the enforcement of jus cogens norms, at least when they are narrowly understood, this leaves much of international law unaccounted for. By drawing on a Lockean social contract account, I show how, given the ways that international cooperation is different from cooperation in the domestic sphere, actual consent is both a possible and an appropriate legitimating device for much of international law. (shrink)
This essay discusses criminal law theories in late Imperial Russia. It argues that, although the political climate of Reform and Counter Reform effectively undermined attempts to implement new legislation premised on the idea of the 'rights-enabled person' (pravovaya lichnosf), paradoxically, it fostered the growth of juridical scholarship. Russian criminal law theorists engaged critically with Western juridical science, which, beginning in the 1870s, witnessed a shift away from absolutist theories inspired by the classics of philosophical idealism towards various strains (...) of positivism arguing for the restoration of the person as a concrete, physiological being. However, while Russian scholars were drawn to these new trends of criminal anthropology and the sociology of crime, they were also obliged to take stock of an indigenous legal culture that scarcely differentiated between pravo and zakon, together with a long tradition of customary practices that equated crime and punishment with sin and redemption. (shrink)
How should international law figure into the practical reasoning of agents who fall under its jurisdiction? How should the existence of an international legal norm regulating some activity affect a subject’s decision-making about that activity? This is a question concerning the general moral authority of international law. It concerns not simply the kind of authority international law claims, but the character of the authority it actually has. An authority, as I will use the term, is moral obligation producing: if x (...) (e.g., a person, institution, or law) has authority over an agent, then the directives of x produce a significant reason for the agent to comply with the terms of the directive. This paper concerns the sense in which international law, and the law of nascent legal systems generally, generate moral obligations for their subjects, i.e., for those who fall under their claimed jurisdiction. (shrink)
Using interviews with activists and Lisa Sowle Cahill's concept of participatory discourse, this article examines how the Greater Boston Interfaith Organization (GBIO) built solidarity for the 2006 Massachusetts health care reform law. The analysis explores the morally formative connections between GBIO's activist strategies and its public liturgy for reform. The solidarity generated through this interfaith coalition's activities and religious arguments contrasts with two standard types of policy discourse, economics and liberalism. Arguments for health care reform based on (...) economic efficiency or positive rights are hampered by the lack of solidarity in U.S. political culture. GBIO's congregation-based organizing offers a performative model of public argumentation for religious groups committed to achieving affordable, quality health care for all Americans. (shrink)
This article explores the manner in which politico-legal language makes use of metaphors of violence and destruction in order to describe state/legal functions and actions. It argues that although such use of a militaristic hyperbole is generally regarded as normal and appropriate, it is in fact harmful in the way that it presents complex and specific problems as being simple and abstract. From a semiotic point of view, and using the work of Roland Barthes, law is regarded as a system (...) of signs and ‘combative’ legal language can be seen as ideological manipulation through the technique of so-called second-level signification (myth). Although it is conceded that law, similar to all other interpretive systems, cannot avoid the use of metaphoric language, it is argued that we should resist regarding legal language as neutral and ‘natural’ and that we should rather retain the memory of legal concepts and categories as historical, man-made, and therefore always open to revision. (shrink)
This article constructs a critical historical, political and theoretical analysis of the essence of Fascist criminal law discourse in terms of the violence that shaped and characterised it. The article examines the significance of violence in key declarations about the role and purpose of criminal law by Alfredo Rocco, Fascist Minister of Justice and leading ideologue, in his principal speech on the final draft of the 1930 Italian Penal Code. It is grounded on the premise that criminal law is particularly (...) significant for understanding the relationship between State power and individuals, and so what was distinctive about Fascist thinking in this regard. The article analyses Rocco’s declarations as a discourse in order to highlight their contextual foundations, construction and ideological connections. It argues that the core theme of that discourse is violence, which has three principal dimensions: a close historical and rhetorical connection with war, a focus on repressive and intimidatory force, and a paramount concern with subordinating individuals to State interests. The article then uses this analysis to develop a theoretical reading of the nexus between criminal law and violence in Fascism, in terms of its foundations and reversal of ends and means. The article thus provides an original perspective on Fascism and criminal law, which it argues is important for critical engagement with criminal law discourse in our democracies today. (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)
This paper proposes a semiotic theory of norms—what I term normative semiotics. The paper’s central contention is that social norms are a language. Moreover, it is a language that we instinctively learn to speak. Normative behaviour is a mode of communication, the intelligibility of which allows us to establish cooperative relationships with others. Normative behaviour communicates an actor’s potential as a cooperative partner. Compliance with a norm is an act of communication: compliance signals cooperativeness; noncompliance signals uncooperativeness. An evolutionary model (...) is proposed to explain how this comes about: evolution has generated an instinctual proficiency in working with these signals much like a language—a proficiency that manifests in an emotional context. We see these social rules as possessing a certain ‘rightness’ in normative terms. This adaptive trait is what we call internalization. Internalization enhances the individual’s ability to speak this code. Because these signals communicate who is and who is not a reliable co-operator, sending and receiving cooperation signals is crucial to individual survival. Individuals who internalized the entire process and thus became more adept at speaking the language were at an advantage. Law seeks to shape the language of norms by maintaining the collective standards of society; as such, understanding how and why this normative language emerges is critical to understanding a core function of law. (shrink)
This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s metaphor (...) of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)
The criminal law raises wonderfully thorny foundational questions. Some of these questions are conceptual: What is a plausible conception of crime ? What is a plausible conception of criminal law ? Some of these questions are genealogical: What are the historical and genealogical roots of the criminal law in a particular jurisdiction? Other questions are evaluative: What are the political and moral values on which a given conception of criminal law depends? What kind of rational reconstruction, if any, could the (...) criminal law be given? And, finally, still other questions are exploratory and normative: Should parts of existing criminal law be abandoned? What new topics in criminal law theory need to be addressed in our globalised, technologically savvy world? The contributors to Antony Duff and Stuart P. Green’s collection Philosophical Foundations of Criminal Law tackle these questions with zeal and independent spirit. They disagree markedly with each other about what the foundational questions are. And, they disagree about how those questions should be handled. This article charts their disagreements by situating the contributors within two taxonomies. The first groups them according to their approaches to the foundational questions; the second groups them according to their modes of theorising. This double taxonomy provides a useful frame within which to analyse these competing takes on the philosophically foundational work of criminal law theory. (shrink)
This review article of Stumer (The presumption of innocence: evidential and human rights perspectives. Hart Publishing, Oxford, 2010) explores the concept, normative foundations and institutional implications of the presumption of innocence in English law. Through critical engagement with Stumer’s methodological assumptions and normative arguments, it highlights the narrowness of common lawyers’ traditional conceptions of the presumption of innocence. Picking up the threads of previous work, it also contributes to on-going debates about the legitimacy of reverse onus clauses and their compatibility (...) with European human rights law and general principles of criminal jurisprudence. (shrink)
The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism and the (...) inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident. (shrink)
The concept of reproductive health promises to play a crucial role in improving women's health and rights around the world. It was internationally endorsed by a United Nations conference in 1994, but remains controversial because of the challenge it presents to conservative agencies: it challenges policies of suppressing public discussion on human sexuality and regulating its private expressions. Reproductive Health and Human Rights is designed to equip healthcare providers and administrators to integrate ethical, legal, and human rights principles in protection (...) and promotion of reproductive health, and to inform lawyers and women's health advocates about aspects of medicine and healthcare systems that affect reproduction. Rebecca Cook, Bernard Dickens, and Mahmoud Fathalla, leading international authorities on reproductive medicine, human rights, medical law, and bioethics, integrate their disciplines to provide an accessible but comprehensive introduction to reproductive and sexual health. They analyse fifteen case-studies of recurrent problems, focusing particularly on resource-poor settings. Approaches to resolution are considered at clinical and health system levels. They also consider kinds of social change that would relieve the underlying conditions of reproductive health dilemmas. Supporting the explanatory chapters and case-studies are extensive resources of epidemiological data, human rights documents, and research materials and websites on reproductive and sexual health. In explaining ethics, law, and human rights to healthcare providers and administrators, and reproductive health to lawyers and women's health advocates, the authors explore and illustrate limitations and dysfunctions of prevailing health systems and their legal regulation, but also propose opportunities for reform. They draw on the values and principles of ethics and human rights recognized in national and international legal systems, to guide healthcare providers and administrators, lawyers, governments, and national and international agencies and legal tribunals. Reproductive Health and Human Rights will be an invaluable resource for all those working to improve services and legal protection for women around the world. -/- Updates to this book, and information on translations to French, Spanish, Portuguese, Chinese and Arabic are now available at www.law.utoronto.ca/faculty/cook/ReproductiveHealth.html. (shrink)
This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the 9th and 10th centuries CE. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what (...) is established by source texts endowed with divine authority. -/- This book shows, however, that premodern Sunni Muslim jurists were not so resolute. Instead, they asked whether and how reason alone can be the basis for asserting the good and the bad, thereby justifying obligations and prohibitions under Shari'a. They theorized about the authority of reason amidst competing theologies of God. For premodern Sunni Muslim jurists, nature became the link between the divine will and human reason. Nature is the product of God's purposeful creation for the benefit of humanity. Since nature is created by God and thereby reflects His goodness, nature is fused with both fact and value. Consequently, as a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good and bad. They disagreed, however, whether nature's goodness is contingent upon a theology of God's justice or God's potentially contingent grace upon humanity, thus contributing to different theories of natural law. -/- By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform. -/- . (shrink)
During the 2007–2008 global food crisis, the prices of primary foods, in particular, peaked. Subsequently, governments concerned about food security and investors keen to capitalize on profit-maximizing opportunities undertook large-scale land acquisitions (LASLA) in, predominantly, least developed countries (LDCs). Economically speaking, this market reaction is highly welcome, as it should (1) improve food security and lower prices through more efficient food production while (2) host countries benefit from development opportunities. However, our assessment of the debate on the issues indicates critical (...) voices in both the media and academic discourse. This article aims to provide a philosophical law and economics analysis. We draw on John Rawls’s Theory of Justice, focusing on Rawls’s background institutions for distributive justice (§43) to evaluate LASLA form an ethical angle. Approaching LASLA into Sub Saharan LDCs as a socio-economic reform redistributing land from the local population of LDCs to investors, we acknowledge that they bear a highly desirable potential. Often, though, they cannot be regarded as ethically correct in practice as the insignificant improvements for local populations and sometimes even human rights violations contradict Rawls’s principles of justice. Then investigating whether and how international law can help overcome the shortcomings, we conclude that even though respective mechanisms exist in the current state of international law, it is hardly possible that it will produce more just outcomes in the near future. (shrink)
The experience of the twentieth century bears witness to the abuse, mutilation and homicide of the vulnerable made possible by the power of the state, mass markets, and medical and financial interests. Suggestions for reform of the law regarding food and fluids typically take place in the context of utilitarian personistic “quality-of-life” presuppositions, and interests in shifting legal responsibility for life-and-death decisions, medical research, drug trials, organ harvesting as well as more mundane bureaucratic concerns like bed-clearing. With the Western (...) world undergoing massive demographic change and a growing ageing and non-productive population, it cannot be assumed that these alterations to the positive law are problem-free. By allowing new agents power to require that food and fluids be withdrawn, non-therapeutic research and other procedures (like abortion and sterilisation) be performed on non-consenting patients, novel legislation such as that discussed cannot be regarded as autonomy enhancing so much as a threat to human rights. These laws although touted as progressive, more often than not invite routine abuse and destruction of the vulnerable, obscure accountability and create an inconsistent body of law, with conflicting obligations for health professionals. (shrink)
Law, we are told, is a system of rules, created by men to govern human behaviour. Students of law, introduced to legal systems, become familiar with varied sources of law – legislative, judicial and executive in character. There are undoubtedly prescriptive human rules that govern men set up by public authorities that are advertised as being for the common good. These appear as visible, socially constructed systems in different jurisdictions and even as international systems across jurisdictions. But is this all (...) there is to law? Is law merely a human construct subject to flux, different according to time and place? Or must law, in its fullest sense, be seen as an activity that needs to be interpreted aright, binds the human conscience and is answerable to certain universal and timeless demands? Is there any natural moral law common to all men, universal and timeless? (shrink)
The revisionist critique of conventional just war theory has undoubtedly scored some important victories. Walzer’s elegantly unified defense of combatant legal equality and noncombatant immunity has been seriously undermined. This critical success has not, however, been matched by positive arguments, which when applied to the messy reality of war would deprive states and soldiers of the permission to fight wars that are plausibly thought to be justified. The appeal to law that is sought to resolve this objection by casting it (...) as a practical concern, a pragmatic worry about implementation, which while germane to debates over the laws of war, need not undermine our convictions in the fundamental principles the revisionists advocate. This response is inadequate. Revisionists have not shown that soldiers should obey the laws of war, in practice, when they conflict with their other moral reasons – our worries about application remain intact. Moreover, a theory of war that offers only an account of the laws of war, and a set of fundamental principles developed in abstraction from feasibility constraints, is radically incomplete. We need to know how to apply those fundamental principles, and whether, when applied, they lead to defensible conclusions. Only two options seem to remain. Perhaps the revisionists’ arguments for their chosen fundamental principles are sufficiently compelling that we should stick with them, and accept their troubling conclusions – in other words, accept pacifism. Alternatively, we need to revise our fundamental principles, so that when applied they yield conclusions that we can more confidently endorse. Though it does not save the revisionist view from the responsibility dilemma and cognate objections, the appeal to law does raise an important, and previously inadequately theorized, question – or, rather, resurrects a neglected topic, discussed in depth by historical just war theorists such as Grotius and Vattel. There are good grounds for distinguishing the laws of war from the morality of war, and for adjusting the former to accommodate predictable noncompliance, that should not impact on our account of the latter. Nonetheless, I have argued that there are some profound moral insights underlying both combatant legal equality and noncombatant immunity: specifically, we cannot infer from a combatant’s side having not satisfied jus ad bellum that he may not justifiably use lethal force; and other things equal, it is more wrongful to harm a nonliable noncombatant than to harm a nonliable combatant. (shrink)
Following are two short contributions to the book, _Criminal Law Conversations_: commentaries on Paul Robinson's discussion of "Empirical Desert" and Antony Duff & Sandra Marshal's discussion of the sharing of wrongs.
Why was it that Francis Bacon, trained for high political office, devoted himself to proposing a celebrated and sweeping reform of the natural sciences? Julian Martin's investigative study looks at Bacon's family context, his employment in Queen Elizabeth's security service and his radical critique of the relationship between the Common Law and the Monarchy, to find the key to this important question. Deeply conservative and elitist in his political views, Bacon adapted Tudor strategies of State management and bureaucracy, the (...) social anxieties and prejudices of the late-Elizabethan governing elite, and a principal intellectual resource of the English governing classes - the Common Law - into a novel vision and method for the sciences. Bacon's axiom that 'Knowledge is Power' takes on far-reaching implications in Martin's challenging argument that the reform of natural philosophy was a central part of an audacious plan to strengthen the powers of the Crown in the State. (shrink)
From the Reformation to the present, German political philosophy has done much to shape the contours of theoretical debate on politics, law, and the conditions of political legitimacy; many of the most decisive and influential theoretical impulses in European political history have originated in Germany. Until now, there has been no thorough history of German political philosophy available in English. This book offers a synoptic account of the main debates in its evolution. Commencing with the formal reception of Roman law (...) and the constitutional reforms in the Holy Roman Empire in the late fifteenth century, German Political Philosophy includes chapters on: · the political ideas of Luther, Zwingli and Melanchthon in the Reformation; · the natural-law theories of the early German Enlightenment; · Kant, Hegel and the age of German idealism; · romanticism and historicism; the Young Hegelians and Karl Marx; · legal positivism and organic theory; · Nietzsche, Weber and early sociology; · neo-Kantianism in the late nineteenth century; · constitutional theory in the Weimar Republic; · the critical theories of the Frankfurt School; · post-1945 sociological functionalism; · Niklas Luhmann's systems theory. At the heart of this book is the claim that, despite - or perhaps because of - the great upheavals and ruptures in the history of state-formation in Germany, there are certain recurrent themes and concerns which persist through these discontinuities to give a distinctive character to German political reflection. This valuable book will be of great interest to political philosophers, intellectual historians, lawyers, and historical sociologists.'. (shrink)
By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990s we have seen the development of international criminal tribunals that have the authority to judge certain crimes. (...) This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts’ jurisdictional authority on delegation of powers. It will argue that contrary to David Luban’s view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process—a necessary requirement for the court’s ability to issue authoritative decisions—should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court’s jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds. (shrink)
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)
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)
The goals of this paper are two-fold: I wish to clarify the Aristotelian conception of the law of non-contradiction as a metaphysical rather than a semantic or logical principle, and to defend the truth of the principle in this sense. First I will explain what it in fact means that the law of non-contradiction is a metaphysical principle. The core idea is that the law of non-contradiction is a general principle derived from how things are in the world. For example, (...) there are certain constraints as to what kind of properties an object can have, and especially: some of these properties are mutually exclusive. Given this characterisation, I will advance to examine what kind of challenges the law of non-contradiction faces; the main opponent here is Graham Priest. I will consider these challenges and conclude that they do not threaten the truth of the law of non-contradiction understood as a metaphysical principle. (shrink)
What is justice? -- The idea of justice in the Holy Scriptures -- Platonic justice -- Aristotle's doctrine of justice -- The natural-law doctrine before the tribunal of science -- A "dynamic" theory of natural law -- Absolutism and relativism in philosophy and politics -- Value judgments in the science of law -- The law as a specific social technique -- Why should the law be obeyed? -- The pure theory of the law and analytical jurisprudence -- Law, state, and (...) justice in the pure theory of law -- Causality and retribution -- Causality and imputation -- Science and politics. (shrink)
Kant's unduly neglected concept of cosmopolitan law suggests a third sphere of public law -- in addition to constitutional law and international law -- in which both states and individuals have rights, and where individuals have these rights as ‛citizens of the earth' rather than as citizens of particular states. I critically examine Kant's view of cosmopolitan law, discussing its addressees, content, justification, and institutionalization. I argue that Kant's conception of ‛world citizenship' is neither merely metaphorical nor dependent on an (...) ideal of a world-government. Kant's views are particularly relevant in light of recent shifts in international law, shifts that lead away from the view that individuals can only be subjects of international law insofar as they are citizens of particular states. Thereby, a category of rights has emerged that comes close to what Kant understands by cosmopolitan law. (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.
The formula of universal law (FUL) is a natural starting point for philosophers interested in a Kantian perspective on the morality of abortion. I argue, however, that FUL does not yield much in the way of promising or substantive conclusions regarding the morality of abortion. I first reveal how two philosophers' (Hare's and Gensler's) attempts to use Kantian considerations of universality and prescriptivity fail to provide analyses of abortion that are either compelling or true to Kant=s understanding of FUL. I (...) then turn to some recent interpretations of Kant=s FUL contradiction in conception (CC) and contradiction in will (CW) tests. I argue that none of the interpretations of the CC testBincluding the practical interpretation favored by KorsgaardBdoes much to reveal moral problems with maxims of abortion. The CW test (as developed by Herman) is more helpful. Nevertheless, I argue that neither by considering abortion maxims as a subset of maxims of convenience killing, nor by considering such maxims as maxims of refusing to aid, can the CW test generate a general prohibition of abortion. At best, the CW test illuminates the abortion issue because by forcing us to think about how killing a fetus differs from killing other human beings, what attitudes we may reasonably have toward a fetus, and whether Kant's moral theory must be amended to do justice to the problem of abortion. But to pursue these questions, we must look beyond FUL; Kant’s formula of humanity and doctrine of virtue may well have more to offer. (shrink)
Natural law is a perennial though poorly represented and understood issue in political philosophy and the philosophy of law. Mark C. Murphy argues that the central thesis of natural law jurisprudence--that law is backed by decisive reasons for compliance--sets the agenda for natural law political philosophy, which demonstrates how law gains its binding force by way of the common good of the political community. Murphy's work ranges over the central questions of natural law jurisprudence and political philosophy, including the formulation (...) and defense of the natural law jurisprudential thesis, the nature of the common good, the connection between the promotion of the common good and requirement of obedience to law, and the justification of punishment. (shrink)
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)
Introduction -- Contending for moral first things : Christian social ethics and postconsensus culture -- Natural law and the Christian tradition -- Natural law and the Protestant prejudice -- Moral law, Christian belief, and social ethics -- Contending for moral first things in ethical and bioethical debates : critical categories, part 1 -- Contending for moral first things in ethical and bioethical debates : critical categories, part 2 -- Ethics, bioethics, and the natural law, a test case : (...) euthanasia yesterday and today -- The natural law and public morality : second thoughts on what is at stake. (shrink)
Feinberg is one of the leading philosophers of law of the last forty years. This volume collects recent articles, both published and unpublished, on what he terms "basic questions" about the law, particularly in regard to the relationship to morality. Accessibly and elegantly written, this volume's audience will reflect the diverse nature of Feinberg's own interests: scholars in philosophy of law, legal theory, and ethical and moral theory.
In this book, Buckle provides a historical perspective on the political philosophies of Locke and Hume, arguing that there are continuities in the development of seventeenth and eighteenth-century political theory which have often gone unrecognized. He begins with a detailed exposition of Grotius's and Pufendorf's modern natural law theory, focussing on their accounts of the nature of natural law, human sociability, the development of forms of property, and the question of slavery. He then shows that Locke's political theory takes up (...) and develops these basic themes of natural law. The author argues further that, rather than being a departure from this tradition, the moral sense theory of Hutcheson and Hume represents a not entirely successful attempt to underpin the natural law theory with an adequate moral psychology. (shrink)
From Hippocrates to paternalism to autonomy : the new hegemony -- From autonomy to consent -- Consent, autonomy, and the law -- Autonomy at the end of life -- Autonomy and pregnancy -- Autonomy and genetic information -- Autonomy and organ transplantation -- Autonomy, consent, and the law.
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)
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)
The tradition of natural law is one of the foundations of Western civilization. At its heart is the conviction that there is an objective and universal justice which transcends humanity’s particular expressions of justice. It asserts that there are certain ways of behaving which are appropriate to humanity simply by virtue of the fact that we are all human beings. Recent political debates indicate that it is not a tradition that has gone unchallenged: in fact, the opposition is as old (...) as the tradition itself. By distinguishing between philosophy and ideology, by recalling the historical adventures of natural law, and by reviewing the theoretical problems involved in the doctrine, Simon clarifies much of the confusion surrounding this perennial debate. He tackles the questions raised by the application of natural law with skill and honesty as he faces the difficulties of the subject. Simon warns against undue optimism in a revival of interest in natural law and insists that the study of natural law beings with the analysis of “the law of the land.” He writes not as a polemicist but as a philosopher, and he writes of natural law with the same force, conciseness, lucidity and simplicity which have distinguished all his other works. (shrink)
The following essay reconsiders the ontological and logical issues around Frege’s Basic Law (V). If focuses less on Russell’s Paradox, as most treatments of Frege’s Grundgesetze der Arithmetik (GGA)1 do, but rather on the relation between Frege’s Basic Law (V) and Cantor’s Theorem (CT). So for the most part the inconsistency of Naïve Comprehension (in the context of standard Second Order Logic) will not concern us, but rather the ontological issues central to the conflict between (BLV) and (CT). These ontological (...) issues are interesting in their own right. And if and only if in case ontological considerations make a strong case for something like (BLV) we have to trouble us with inconsistency and paraconsistency. These ontological issues also lead to a renewed methodological reflection what to assume or recognize as an axiom. (shrink)
Three paradigms of legal positivism -- The pure theory of law : science or political theory? -- Kelsen's principles of legality -- Kelsen's theory of democracy : reconciliation with social order -- Democratic constitutionalism : Kelsen's theory of constitutional review -- Kelsen's legal cosmopolitanism -- Conclusions : the pure theory of law and contemporary positivism.
Natural law theory is enjoying a revival of interest in a variety of scholarly disciplines including law, philosophy, political science, and theology and religious studies. This volume presents twelve original essays by leading natural law theorists and their critics. The contributors discuss natural law theories of morality, law and legal reasoning, politics, and the rule of law. Readers get a clear sense of the wide diversity of viewpoints represented among contemporary theorists, and an opportunity to evaluate the arguments and counterarguments (...) exchanged in the current debates between natural law theorists and their critics. Contributors include Hadley Arkes, Joseph M. Boyle, Jr., John Finnis, Robert P. George, Russell Hittinger, Neil MacCormick, Michael Moore, Jeffrey Stout, Joseph Raz, Jeremy Waldron, Lloyd Weinreb, and Ernest Weinrib. (shrink)