Online research in philosophy

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for (...) legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

Saadya Gaon (882 ? 942), one of the outstanding Rabbis in the period of the Geonim, rejected the legitimacy of legal inference, as part of his polemics with his contemporary Karaite scholars. The paper analyzes Saadya's stance regarding the logical basis of legal inference, and shows that Saadya's distinction between reason and revelation in the domain of legal inference is only in regard to the ?illah? the factor that connects the case with its law. The rationality of (...) the commandments, on the other hand, is based according to Saadya upon the manfa?ah? the utility of the commandments, and hence Saadya's religious doctrine turns out to be coherent and consistent. Maimonides (1138?1204), who was one of the most important figures in the Jewish scholarly world in the Middle Ages, adopted the Aristotelian concept of dialectics in order to facilitate his theory of Jewish legal argumentation. Unlike Saadya, Maimonides saw inferences in the realm of the law as legitimate. His position can be considered an inclination towards the Karaite ideology according to which reason must be the ruler in the realm of the law. Nevertheless, Maimonides' stance deviates from that of Karaites in a crucial point: according to Maimonides, only authorized institutions are qualified to use legal inference. Since the Talmud, according to Maimonides, represents the teachings of the rabbinical authorized institutions, its legal instructions must be followed. The article describes Maimonides' position regarding legal and Talmudic inferences, and shows that Maimonides' inclination towards the Karaite theory remains within the limits of the Rabbanite ideology. (shrink)

In this article, I explore how the ideas of French philosopher Emmanuel Levinas offer insights into a debate often held today in the field of corporate governance, concerning the relative merits of statutory and voluntary approaches to the regulation of business. The philosophical position outlined by Levinas questions whether any rule-based systematisation of ethical responsibility, either statutory or voluntary, can ever equate to a genuine responsibility for the other person. I reflect on how various authors have adapted Levinas’s philosophy (...) to form a critique of bureaucracy and rule following in business, and the lack of ethical authenticity in corporate codes. However, this article also considers the question of whether a theoretical separation can be made between an ethical responsibility based on sensibility (as is suggested by Levinas) and a rational conceptualisation of how one is required to act. Considering the difficulty of disentangling these notions of ethics, I return to the problem of corporate governance and suggest an approach to stakeholder conflict based on mediation and dialogue, which rules out neither principles of conduct nor an openness of responsibility to the Other. (shrink)

Legal philosophers divide over whether it is possible to analyze legal concepts without engaging in normative argument. The influential analysis of legal rights advanced by Jules Coleman and Jody Kraus some years ago serves as a useful case study to consider this issue because even some legal philosophers who are generally skeptical of the neutrality claims of conceptual analysts have concluded that Coleman and Kraus's analysis manages to maintain such neutrality. But that analysis does depend in (...) subtle but important ways on normative claims. Their argument assumes not only a positivist concept of law, but also that it counts in favor of an analysis of legal rights that it increases the number of options available to legal decisionmakers. Thus, whether Coleman and Kraus's analysis is right in the end depends on whether those normative assumptions are justified. If even their analysis, which makes the thinnest of conceptual claims, depends on normative premises, that fact serves as strong evidence of the difficulty of analyzing legal concepts while remaining agnostic on moral and political questions. (shrink)

: Although the exclusion of LGBTs from the rites and rights of marriage is arbitrary and unjust, the legal institution of marriage is itself so riddled with injustice that it would be better to create alternative forms of durable intimate partnership that do not invoke the power of the state. Card's essay develops a case for this position, taking up an injustice sufficiently serious to constitute an evil: the sheltering of domestic violence.

Xenotransplantation - the transfer of living tissue between species - has long been heralded as a potential solution to the severe organ shortage crisis experienced by the United Kingdom and other 'developed' nations. However, the significant risks which accompany this biotechnology led the United Kingdom to adopt a cautious approach to its regulation, with the establishment of a non-departmental public body - UKXIRA - to oversee the development of this technology on a national basis. In December 2006 UKXIRA was (...) quietly disbanded and replaced with revised guidance, which entrusts the regulation of xenotransplantation largely to research ethics committees. In this article we seek to problematize this new regulatory framework, arguing that specialist expertise and national oversight are necessary components of an adequate regulatory framework for a biotechnology which poses new orders of risk, challenges the adequacy of traditional understandings of autonomy and consent, and raises significant animal welfare concerns. We argue for a more considered and holistic approach, based on adequate consultation, to regulating biotechnological developments in the United Kingdom. (shrink)

This book offers an in-depth analysis of the wide range of issues surrounding "passive euthanasia" and "allow-to-die" decisions. The author develops a comprehensive conceptual model that is highly useful for assessing and dealing with real-life situations. He presents an informative historical overview, an evaluation of the clinical settings in which treatment abatement takes place, and an insightful discussion of relevant legal aspects. The result is a clearly articulated ethical analysis that is medically realistic, philosophically sound, and legally viable.

The Court of Justice of the European Union (CJEU) and the way in which it works can be seen as a microcosm of how a multilingual, multicultural supranationalisation process and legal order can be constructed—the Court is a microcosm of the EU as a whole and in particular of EU law. The multilingual jurisprudence produced by the CJEU is necessarily shaped by the dynamics within that institution and by the ‘cultural compromises’ at play in the production process. The resultant (...) texts, which make up that jurisprudence, are hybrid in nature and inherently approximate. On the one hand, that approximation can lead to discrepancies between language versions of the Court’s case law and thus jeopardise the uniform application of EU law. On the other hand, that approximation and hybridity define EU law as a distinct, supranational legal order. This paper analyses the operation of the CJEU and considers whether a linguistic cultural compromise exists within that institution which exercises a formative influence on the character of its ‘output’—i.e. its jurisprudence—and what that may mean for our understanding of the development of EU law. (shrink)

The dramatic appearance of managed care organizations (MCOs) on the U.S. health scene has generated tremendous anxiety among health care providers and patients. These fears are based on the belief that managed care techniques pose greater risks of under treatment than do fee-for-service modes of payment. In addition, many physicians and patients resent the limits placed on clinical autonomy by the MCO model and the stresses that it places on the traditional physician-patient relationship. These misgivings have been exacerbated by (...) the mostly negative response to MCOs in the media and academia. Legislatures have responded to these claims and public fears with a wave of regulatory initiatives. Some of these regulations are attempts to protect patients. Others, however, are motivated primarily by antipathy toward the concept of managed care itself. This essay is an attempt to develop a social ethic of regulation and argues that the sole reason that private enterprise may be justifiably limited is when it presents a risk of harm to others or society. While some regulation and proposed regulation of MCOs meet this standard, much legislation represents an unjustified attempt to limit or handicap otherwise legal behavior merely because a segment of the population and medical profession find it aesthetically unpleasing and oppose its approach to the delivery of health services. (shrink)

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I explore the idea of language reaching its limits by distinguishing two kinds of limits language may have: The first are “Boundaries” which lie on the edges of language, and distinguish what makes sense from what does not. These, I claim, are suitable in making theoretical generalizations. The second are “Contours,” which lie within language, and allow for contrasting and comparing meanings and shades of meanings that we capture in language. These are more suitable for characterizations of particulars, (...) and for literary use. I claim that failure to draw this distinction is responsible for confusions in Sabina Lovibond’s and Richard Rorty’s views of moral thought and language. (shrink)

This paper focuses on the contribution of meta-regulation in responding to the regulatory needs of a field beset by significant uncertainties concerning risks, benefits and development trajectories and characterised by fast development. Meta-regulation allows regulators to address problems when they lack the resources or information needed to develop sound “discretion-limiting rules”; meta-regulators exploit the information advantages of those actors to be regulated by leveraging them into the task of regulating itself. The contribution of meta-regulation to the governance (...) of nanotechnologies is assessed in terms of responsibilisation. Responsibilisation is regarded as a pre -requisite for regulatory actors to internalise social values (such as consumer safety and occupational health) and to ensure that these values are built into regulatory practice. In order to explore the potential of responsibilisation, the Code of Conduct for Responsible Nanosciences and Nanotechnologies Research launched by the European Commission in 2008 is evaluated. The Code is a good case of meta-regulation that aims to steer the self-regulation of nanotechnological business and research organisations. The paper concludes that, while efforts were made on the part of meta-regulators and self-regulators to contribute to responsibilisation, important opportunities for responsibilisation such as dissemination and promotion of the Code, trust-building activities, and failure to provide rewards, incentives and stakeholder guidance were not taken up. In order to foster responsibilisation within the meta-regulatory instrument of the EC Code, a number of crucial activities to be undertaken by meta-regulators are recommended. (shrink)

Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it (...) is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectifies’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, inten- tional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self- evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good- making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’. (shrink)

Introduction -- Practical reasons and judicial use of force -- Deviating from legal standards -- The legal duties of judges -- The normative classification of legal results -- Reasons to deviate -- Adherence rules -- Obeying adherence rules -- The judicial oath -- Legal duty and political obligation -- Systemic effects -- Agent-relative principles -- Optimal adherence rules -- Guidance rules -- Treating like cases alike -- Implementation -- Theoretical implications -- Conclusion.

This essay partly builds on and partly criticizes a striking idea of Dieter Henrich. Henrich argues that Kant's distinction in the first Critique between the question of fact (quid facti) and the question of law (quid juris) provides clues to the argumentative structure of a philosophical "Deduction". Henrich suggests that the unity of apperception plays a role analogous to a legal factum. By contrast, I argue, first, that the question of fact in the first Critique is settled by the (...) Metaphysical Deduction, which establishes the purity of origin of the Categories, and, second, that in the second Critique, the relevant factum is the Fact of Reason, which amounts to the fact that the Moral Law is pure in origin. (shrink)

Recent food emergencies throughout the world have raised some serious ethical and legal concerns for nations and health organizations. While the legal regulations addressing food risks and foodborne illnesses are considerably varied and variously effective, less is known about the ethical treatment of the subject. The purpose of this article is to discuss the roles, justifications, and limits of ethics of food safety as part of public health ethics and to argue for the development of this timely (...) and emergent field of ethics. The article is divided into three parts. After a short introduction on public health ethics, all levels of food safety processes are described and the role that ethics play in each of these levels is then analyzed. In the second part, different models describing the function of food law are examined. The relationship between these models and the role of ethics of food safety is assessed and discussed in the final part, leading to some relevant comments on the limits of the role and effect of ethics of food safety. (shrink)

Even good lawyers get a bad rap. One explanation for this is that the professional rules governing lawyers permit and even require behavior that strikes many as immoral. The standard accounts of legal ethics that seek to defend these professional rules do little to dispel this air of immorality. The revisionary accounts of legal ethics that criticize the professional rules inject a hearty dose of morality, but at the cost of leaving lawyers unrecognizable as lawyers. This article suggests (...) that the problem with both the professional rules and the extant accounts of legal ethics is that they treat the role of lawyer as largely uniform, whereas lawyers actually serve several importantly different roles in different contexts. The central insight of the article is that legal ethics must be fundamentally context-sensitive: what lawyers are morally permitted or required to do depends on the background context in which they are working. Additionally, by taking context into account, this article is the first to present a theory of legal ethics as appropriately shaped and constrained by normative political philosophy and norms of political legitimacy. -/- Specifically, the article argues that people act as lawyers in three different contexts: State v. Individual (situations in which the State seeks to apply some general law to a particular individual), Individual v. Individual (situations in which private individuals are engaged in a dispute), and Individual v. State (situations in which individuals object to State conduct on constitutional or other grounds unrelated to the question of whether a general law applies to their particular case); that the value of lawyers, qua lawyers, stems from a different source in each of these contexts; and that a theory of legal ethics must take into account both of these first two claims. This article develops one such theory - the Multi-Context View. To demonstrate how the theory applies in practice, the article applies the Multi-Context View to two significant issues in legal ethics: the ethical issues involved in deciding whether to represent a client and the moral permissibility of the use of tactical delay. (shrink)

The present paper aims at addressing a crucial legal conflict in the information society: i.e., the conflict between security and civil rights, which calls for a “fine and ethical balance”. Our purpose is to understand, from the legal theory viewpoint, how a fine ethical balance can be conceived and what the conditions for this balance to be possible are. This requires us to enter in a four-stage examination, by asking: (1) What types of conflict may be dealt with (...) by means of balancing? (2) What is meant by balancing? Is it a metaphor that hides and dissimulates discretionary powers and subjective decisions or a rational instrument that helps us cope with conflicts between fundamental values and interests? (3) What models of balancing are available to us? Are these models irreducible to each other? What can provide us with a common understanding of different models of balancing? (4) How can the crucial issues of rational controllability, predictability, and homogeneity of legal decisions be dealt with? Our paper will try to answer those questions by trying to reconstruct the act of balancing in terms of a rational legal reasoning, which relies upon information. In fact, every judicial decision contains some information that is delivered to the legal system: that information may serve as the basis for future evaluations, decisions, and actions, and thus influence the way we recognize and hence we protect our values, interests, and rights. In this perspective, our examination will attempt to understand those questions in informational terms. This informational treatment can provide us with a more universalistic understanding of those issues and offer us a novel way to conceptually deal with them. To this aim, we will avail yourself of Luciano Floridi’s philosophy of information: notably, we believe his constructionist conception of epistemology is crucial, based on the Maker’s Knowledge approach and his solution of the upgrading problem (i.e., from information to knowledge) in terms of a network theory of account. The informational approach will help us having a better understanding of the balance between competing interests. (shrink)

The processes of economic integration induced by globalization have brought about a certain type of legal practice that challenges the core values of legal ethics. Law firms seeking to represent the interests of internationally active corporate clients must embrace and systematically apply concepts of strategic management and planning and install corporate business structures to sustain competition for lucrative clients. These measures bear a high conflict potential with the core values of legal ethics. However, we observe in parallel (...) a global consolidation of these core values through an enhanced cooperation of national professional bodies, the use of international codes, and comparative legal ethics teaching and research. Furthermore, state regulation of the legal profession is concerned with preserving the core values of legal ethics to conserve the lawyer's role in upholding the rule of law. This article defends that legal ethics is adapting to the pressures exerted by "managerial" approaches to legal practice without this altering core values that underlie legal ethics. (shrink)

A world of legal conflicts -- The limits of sovereigntist territoriality -- From universalism to cosmopolitanism -- Towards a cosmopolitan pluralist jurisprudence -- Procedural mechanisms, institutional designs, and discursive practices for managing pluralism -- The changing terrain of jurisdiction -- A cosmopolitan pluralist approach to choice of law -- Recognition of judgments and the legal negotiation of difference.

Ethicists and legal theorists have proposed models of corporate culpability that shift the standard of guilt determination from vicariousattribution of individual action and intention to an assessment of culture, policies, as well as organizational action and inaction. This paper briefly reviews four prominent models of corporate culpability, arguing that each makes claims that extend well beyond the limits of existing law. As an alternative to these models, a constructive corporate fault is described that relies on both objective and (...) subjective reasonableness judgments. The paper concludes with a consideration of constructive corporate fault in relation to an Accountability model of corporate liability. (shrink)

The representation of knowledge in the law has basically followed a rule-based logical-symbolic paradigm. This paper aims to show how the modeling of legal knowledge can be re-examined using connectionist models, from the perspective of the theory of the dynamics of unstable systems and chaos. We begin by showing the nature of the paradigm shift from a rule-based approach to one based on dynamic structures and by discussing how this would translate into the field of theory of law. In (...) order to show the full potential of this new approach, we start from an experiment with NEUROLEX, in which a neural network was used to model a corpus of French Council of State decisions. We examine the implications of this experiment, especially those concerning the limits of the model used, and show that other connectionist models might correspond more adequately to the nature of legal knowledge. Finally, we propose another neural model which could show not only the rules which emerge from legal qualification (NEUROLEX's goal), but also the way in which a legal qualification process evolves from one concept to another. (shrink)

The Moral Limits of Law analyzes the related debates concerning the moral obligation to obey the law, conscientious citizenship, and state legitimacy. Modern societies are drawn in a tension between the centripetal pull of the local and the centrifugal stress of the global. Boundaries that once appeared permanent are now permeable: transnational legal, economic, and trade institutions increasingly erode the autonomy of states. Nonetheless transnational principles are still typically effected through state law. For law's subjects, this tension brings (...) into focus the interaction of legal and moral obligations and the legitimacy of state authority. This volume incorporates a comprehensive critical analysis of the methodology and substance of the debates in recent legal, political, and moral philosophy, regarding political obligation and the moral obligation to obey the law. The author argues that traditional accounts of political obligation that assume a bounded conception of the polity are no longer tenable. Higgins therefore presents an original theory of the conscientious agent's attitude towards law that accommodates the contemporary social tension between local and global obligations. (shrink)

In discussing the works of 16th-century theorists Francisco de Vitoria and Alberico Gentili, this article examines how two different conceptions of a global legal community affect the legal character of the international order and the obligatory force of international law. For Vitoria the legal bindingness of ius gentium necessarily presupposes an integrated character of the global commonwealth that leads him to as it were ascribe legal personality to the global community as a whole. But then its (...) legal status and its consequences have to be clarified. For Gentili on the other hand, sovereign states in their plurality are the pinnacle of the legal order(s). His model of a globally valid ius gentium then oscillates between being analogous to private law, depending on individual acceptance by states and being natural law, appearing in a certain sense as a form rather of morality than of law. (shrink)

This article examines the influence of the City law firms, operating through their representative body, the City of London Law Society, in shaping the ?professional rules governing conflicts of interest in England and Wales, including a recent failed attempt to allow firms to act for sophisticated clients on either side of the same transaction.? It compares English developments with those in the US and Canada finding that, in all three, it is argued that conflicts rules should be relaxed to meet (...) the needs of sophisticated clients and address the economic realities of legal practice. It argues however that in England the CLLS lobbied for change to promote the economic interests of large law firms whilst paying scant regard to the public interests in publicly owned companies having independent representation, in lawyers maintaining independence from powerful clients, in promoting competition, and in maintaining public confidence in the profession. ?It considers what this tells us about corporate lawyers? approach to their professional role. Finally it considers the future of conflicts regulation in large firms in England and Wales given the introduction of alternative business structures and the move to principles based, outcomes focussed, and entity regulation. (shrink)

This article investigates the implications of goal-legislation for legal argumentation. In goal-regulation the legislator formulates the aims to be reached, leaving it to the norm-addressee to draft the necessary rules. On the basis of six types of hard cases, it is argued that in such a system there is hardly room for constructing a ratio legis. Legal interpretation is largely reduced to concretisation. This implies that legal argumentation tends to become highly dependent on expert (non-legal) (...) knowledge. (shrink)

In recent years, there has been much discussion over how to assure scientific integrity. It has become clear that a few scientists have fraudulently collected or reported data, conducted harmful or unethical experiments, or practiced “unscientific” procedure. What are regulative bodies to do? The approach has been to define research misconduct and then use that definition to assess scientific practice.[1] But just how to define research misconduct and hence, regulate the conduct of scientists in research? The debate that resulted in (...) response to this question, and that led ultimately to the new federal definition (42CFR50), has both theoretical and political underpinnings. The political underpinnings have been greatly discussed. But the theoretical underpinnings (and their connection to the political) have not. To give a definition of “good” versus “bad” science requires some understanding of the scientific process itself. So theoretical ideas about what constitutes good or bad science—ideas that influence and help shape our ideas and applications of research misconduct definitions—have political implications for the regulation of science. However, as the debates within both the scientific and philosophical communities have made clear, there are significant limits to any appropriate legislation of what counts as “good” science. A definition of research misconduct (or “bad” science) that spells out the nature of science too stringently may stifle scientific innovation. Consider the case of sociobiology when it was first introduced in the 1970’s. The idea is to account for social behavior of various species (including Homo sapiens) in terms of evolutionary biology. To take one example from sociobiology, the greater tendency of males toward rape is to be explained in terms of the evolutionary advantage for the male’s genes. Not surprisingly, sociobiology met with great controversy; some considered it an inappropriate application of biological principles to the social-interpretive-human domain. Still, few did or would suggest that it is the province of any regulatory body to silence the advocates of the new field. We will endorse and reinforce the standard arguments that the scientific process is too complicated to provide mechanical rules of conduct.. (shrink)

: State legislatures consider numerous bills to regulate managed care organizations. After identifying the legal, political, and economic barriers to state reform efforts, the paper assesses recent types of state regulation, particularly mandated benefits and disclosure requirements. Two prerequisites to future reform, coalition building and the diffusion of information about managed care, are analyzed.

Rent control is an economic abomination. It diverts investments away from residential rent units, it leads to their deterioration, it is responsible for urban decay such as in the South Bronx, it does not help poor tenants, it is a horrendous means of income redistribution. Yet this economic regulation is beloved of intellectuals (hot beds of pro rent control sentiment are Berkeley, Ann Arbor and Cambridge) particularly in the legal and philosophical communities. The present article is dedicated to (...) an exploration and rejection of the arguments in behalf of rent control which emanate from this source. (shrink)

With the passage of the Physician Payment Sunshine Act as part of the federal health care reform law, pharmaceutical manufacturers are now required to disclose a wide range of payments made by manufacturers to physicians. We review current state regulation of pharmaceutical marketing and consider how the federal sunshine provision will affect existing marketing regulation. We analyze the legal and practical implications of the Physician Payment Sunshine Act.

Oregon State University, USA, andrew.valls{at}oregonstate.edu ' + u + '@' + d + ' '//--> In this article, we draw an analogy between the regulation of market language (including official definitions of `organic', `ice cream', and `diamond') and the regulation of the social and legal label `marriage'. Many of the issues raised in the debate over same-sex marriage are less about access to material benefits than about the social and cultural meaning of `marriage'. After reviewing the issues (...) in this debate, we present an analysis of the regulation of language in the marketplace. We discuss the considerations that shape how the state regulates language in the marketplace, if it regulates it at all. Using this framework to analyze the issue of same-sex marriage allows us to identify the costs and benefits of different proposals with regard to marriage, and allows us to distinguish issues that are often conflated. Contrary to its opponents, we argue that making marriage available to same-sex couples does not violate the meaning of `marriage' or destroy marriage, because such a change is similar to many other changes in which words and labels are extended to include new `goods'. This alters the meaning, but does not destroy it, and it does not preclude the possibility of further linguistic innovation to maintain a distinction. Contrary to proponents of same-sex marriage, however, we argue that extending marriage to same-sex couples is not cost-free. There are costs and benefits of any policy on this issue — costs and benefits related to information and status, as well as material resources. Hence, while we agree with advocates of same-sex marriage, we argue that their position involves trade-offs and costs that they sometimes fail to recognize. Key Words: gay marriage • marriage • language regulation. (shrink)

An increasing number of Italian scholars are beginning to share the idea that the conceptual basis of legal positivism (LP) is wrong, particularly in the field of Public Law. According to a group of theories called “neoconstitutionalism,” constitutionalism is to be understood not only as a principle based on the need to impose legal limits to political power, but also as an aggregation of values capable of continually remodelling legal relationships, positioning itself as a “pervasive” point (...) of reference for legal experience. A recent essay by Professor Antonio Baldassarre, President Emeritus of the Constitutional Italian Court, about the “misery of legal positivism” is a good expression of this view. In this article, the ideas outlined by Baldassarre are examined and criticized. The paper also tries to defend a version of legal positivism, which has both a conceptual and prescriptive meaning, relating to decisions made on the basis of rules. This view is based on the two correlated concepts of primary formalism and secondary formalism of “competence and procedure.”. (shrink)

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw (...) on Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue. Indeed, Aristotle thought the project of using law to instill private virtue was nearly certain to fail. Aristotle’s deep concern was not for the way law protected private virtue within each person but the way law had to protect civic virtue between citizens. This article argues that even from its foundations, the project of vice crimes as moral instruction is misconceived. The use of law for overly instrumental or narrow reasons opens law and legal institutions to abuse and factionalism. Lawyers, judges and others specially connected to law must first and foremost aim at addressing “legal vices,” vices internal to the institutions of law. Particularly, increasing factionalism and instrumentalism which disconnects law from the pursuit of the common good threatens our civic bonds. Most importantly, where civic bonds are disrupted, citizens have no reason to remain law abiding. The striking lesson, captured both in ancient philosophy and modern history, is that when legal vices grow unchecked and factions use the law to pursue narrow interests, ultimately law abidingness is corrupted and interest groups harm themselves as much as others. (shrink)

The issue of reciprocal relationships between the logic of law, positivistic theory of the logic of law, and legal semiotics is among the most important questionsof the modern theoretical jurisprudence. This paper has not attempted to provide any comprehensive account of the modern jurisprudence (and legal logic).Instead, the emphasis has been laid on those aspects of positivist legal theories, logical studies of law and legal semiotics that allow tracing the common pointsor the differences between these paradigms (...) of legal research. One of the theses of the present work is that, at the comparative methodological level, the limits oflegal semiotics and its object of inquiry could only be defined in relation to legal positivism and logical studies of law. This paper also argues for a proper positionfor legal semiotics in between legal positivism and legal logic. The differences between legal positivism, legal logic and legal semiotics are best captured in theissue of referent. (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.















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The art, craft, and science of policing -- Crime and criminals -- Criminal process and prosecution -- The crime-preventive impact of penal sanctions -- Contracts and corporations -- Financial markets -- Consumer protection -- Bankruptcy and insolvency -- Regulating the professions -- Personal injury litigation -- Claiming behavior as legal mobilization -- Families -- Labor and employment laws -- Housing and property -- Human rights instruments -- Constitutions -- Social security and social welfare -- Occupational safety and health -- (...) Environmental regulation -- Administrative justice -- Access to civil justice -- Judicial recruitment, training, and careers -- Trial courts and adjudication -- Appellate courts -- Dispute resolution -- Lay decision-makers in the legal process -- Evidence law -- Civil procedure and courts -- Collective actions -- Law and courts on development and democratization -- How does international law work? -- Lawyers and other legal service providers -- Legal pluralism -- Public images and understandings of courts -- Legal education and the legal academy -- The (nearly) forgotten early empirical legal research -- Quantitative approaches to empirical legal research -- Qualitative approaches to empirical legal research -- The need for multi-method approaches in empirical legal research -- Legal theory and empirical research -- Empirical legal research and policy-making -- The place of empirical legal research in the law school curriculum -- Empirical legal training in the US academy. (shrink)

The paper considers the legal tools that have been developed in German pharmaceutical regulation as a result of the precautionary attitude inaugurated by the Contergan decision (1970). These tools are (i) the notion of “well-founded suspicion”, which attenuates the requirements for safety intervention by relaxing the requirement of a proved causal connection between danger and source, and the introduction of (ii) the reversal of proof burden in liability norms. The paper focuses on the first and proposes seeing the (...) precautionary principle as an instance of the requirement that one should maximise expected utility. In order to maximise expected utility certain probabilities are required and it is argued that objective Bayesianism offers the most plausible means to determine the optimal decision in cases where evidence supports diverging choices. (shrink)

Technology assessment (TA) is an important instrument for the regulation of innovation. From the perspective of sociology of knowledge, the regulatory process can be understood as a complex interplay between different forms of knowledge. The prevailing instruments of TA, expertise and participation, are both facing difficulties in dealing with the limits and impasses of regulatory knowledge in the realm of innovation. Nevertheless, as is argued in this article, reflexive forms of TA offer a good, if not the only, (...) answer to the question of how we can deal with the contradictions and paradoxes involved in the regulation of innovation. (shrink)

In spite of recent efforts to promote cooperation between universities and industry, Germany still lacks a sufficient legal framework for regulating potential conflicts of interest resulting from university-industry cooperation. Prospective regulation of conflicts of interest has to take into account specific constraints imposed by the German constitution. It has to follow stringent procedural and material requirements and carefully weigh the individual researcher’s right to academic freedom against the public demand for objectivity in research. Because of this cautious consideration (...) of the conflicting interests constitutionally mandated in Germany, a potential regulation legitimate in this country may serve as a model for other countries facing the need of the adoption of such a regulation. (shrink)

Since scholarly interest in corporate social responsibility (CSR) has primarily focused on the synergies between social and economic performance, our understanding of how (and the conditions under which) companies use CSR to produce policy outcomes that work against public welfare has remained comparatively underdeveloped. In particular, little is known about how corporate decision-makers privately reconcile the conflicts between public and private interests, even though this is likely to be relevant to understanding the limitations of CSR as a means of aligning (...) business activity with the broader public interest . This study addresses this issue using internal tobacco industry documents to explore British-American Tobacco’s (BAT) thinking on CSR and its effects on the company’s CSR Programme. The article presents a three-stage model of CSR development, based on Sykes and Matza’s theory of techniques of neutralization, which links together: how BAT managers made sense of the company’s declining political authority in the mid-1990s; how they subsequently justified the use of CSR as a tool of stakeholder management aimed at diffusing the political impact of public health advocates by breaking up political constituencies working towards evidence-based tobacco regulation; and how CSR works ideologically to shape stakeholders’ perceptions of the relative merits of competing approaches to tobacco control. Our analysis has three implications for research and practice. First, it underlines the importance of approaching corporate managers’ public comments on CSR critically and situating them in their economic, political and historical contexts. Second, it illustrates the importance of focusing on the political aims and effects of CSR. Third, by showing how CSR practices are used to stymie evidence-based government regulation, the article underlines the importance of highlighting and developing matrices to assess the negative social impacts of CSR. (shrink)

In biomedical ethics the principle of autonomy is closely connected with the moral and legal claim to informed consent. After World War II and the dramatic misuse of medicine in Nazi Germany, informed consent regulations were expected to help avoid similar misuse in the future, to help overcome the traditional medical paternalism, and to advance the liberty rights of patients and human subjects of research. With the rise of the new field of bioethics in the 1970s, the traditional beneficence-based (...) model of medical ethics shifted in the direction of an individual autonomy model. (shrink)

This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain (...) of jurisprudence. (shrink)

I show how archaeologists have two problems. The construction of scenarios accounting for the raw data of Archaeology, the material remains of the past, and the explanation of pre-history. Within Archaeology, there has been an ongoing debate about how to constrain speculation within both of these archaeological projects, and archaeologists have consistently looked to biological mechanisms for constraints. I demonstrate the problems of using biology, either as an analogy for cultural processes or through direct application of biological principles to material (...) remains. This is done through setting out the requirements of a Darwinian Archaeology, and then measuring various approaches against these requirements. This approach leads to the conclusion that archaeologist's explanations of the past must include within their formulations an account of human cognitive capacities within their explanatory framework. The limits of our understanding of the human past will be the limits of our understanding of Homo sapiens. (shrink)

The volume presents a set of invited papers based on analyses of legal discourse drawn from a number of international contexts where often the English language ...

This article provides a critical introduction to an issue fo Ratio Juris concerend with two contrasting schools of legal idealism: the so-called Sheffield School (Beyleveld, Brownsword and colleagues) and the “discourse ethics” school of Habermas and Alexy. The article focusses on four issues: (1) whether a "claim to correctness" is a necessary feature of law, (2) the connection between correctness and validity, (3) Alexy's argument for a "qualifying connection" between law and morality, and its counterpart in the Sheffield School's (...) approach, and (4) Alexy's case for the "Radbruch formula": that "extreme injustice is not law”. While rejecting both versions of the case for legal idealism, I argue that both schools offer vaulable, and broadly similar, insights into what makes a legal system morally legitimate. (shrink)

This collection brings together well-established scholars to examine the limits of law, a topic that has been of broad interest since the events of 9/11 and the responses of U.S. law and policy to those events. The limiting conditions explored in this volume include marking law’s relationship to acts of terror, states of emergency, gestures of surrender, payments of reparations, offers of amnesty, and invocations of retroactivity. These essays explore how law is challenged, frayed, and constituted out of contact (...) with conditions that lie at the farthest reaches of its empirical and normative force. (shrink)

Chapter 1 An Essay on the Limits of Human Knowledge “I am you and you are I, and where you are, I also will be, and I am dispersed among all things. Where you choose you will find me, and, finding me, you will find yourself.

This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and (...) legitimacy. The final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

This book discusses theories of legal reasoning and provides an overall view of the rhetoric of legal justification. It shows how and why lawyers arguments can be rationally persuasive even though rarely, if ever, logically conclusive or compelling. It examines the role of "legal syllogism" and universality of legal reasoning, looking at arguments of consequentialism and principle, and concludes by questioning the infallibility of judges as lawmakers.

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)

We analyse the relationship between applicability and effectiveness of legal norms from a philosophical perspective. In particular, we distinguish between two concepts of applicability. The external applicability of norms refers to institutional duties; a norm N is externally applicable if and only if a judge is legally obliged to apply N to some case c. Internal applicability refers instead to the sphere of validity of legal norms. A norm N is internally applicable to actions regulated by its sphere (...) of validity. We also explore the consequences of a thesis which maintains that applicability restricts the concept of effectiveness, so that only applicable norms can be considered effective. Our analysis illustrates that a proper reconstruction of the concept of applicability is of great importance not only for understanding the concept of effectiveness but also for providing insight into the nature of law. (shrink)

We analyse the relationship between applicability and effectiveness of legal norms from a philosophical perspective. In particular, we distinguish between two concepts of applicability. The external applicability of norms refers to institutional duties; a norm N is externally applicable if and only if a judge is legally obliged to apply N to some case c. Internal applicability refers instead to the sphere of validity of legal norms. A norm N is internally applicable to actions regulated by its sphere (...) of validity. We also explore the consequences of a thesis which maintains that applicability restricts the concept of effectiveness, so that only applicable norms can be considered effective. Our analysis illustrates that a proper reconstruction of the concept of applicability is of great importance not only for understanding the concept of effectiveness but also for providing insight into the nature of law. (shrink)

This article builds on the notion of legal tolerance and analyzes the scope of its definition. It situates the notion in the complex set of relations occurring between the major systems of society. Generally, legal tolerance, as a concept, is understood in light of the possibilities of the legal system of influencing other major systems? responses. On the other hand, tolerance is also the response of the legal system in respect to other major systems? communications. Although (...) there is a common understanding of tolerance as ?under punishing bias? in criminology or as political tolerance in political science, 1 the focus of this article is different. The central points here are, first, the analysis of legal tolerance as part of systemic communications and, second, the historicity of the transformations of the nation-state in its ability to cope with the growth of separate, distinct and partial systems of society. Tolerance seems relational and raises questions such as: ?How much can the legal system tolerate?? And also, ?Which societal topics belong to the social system's domain-matter?? These questions are relevant given that the concept of legal tolerance depends on the possibilities of a given system to steer, to direct or to influence other major systems? behavior, or to resist, respond or to address other systems, which are in its environment. The concept of legal tolerance requires an analysis of a cluster of related definitions to assess the implications of the concept. These definitions are the following: (1) The concepts that result from the historical process of structuration and that explain the emergence of social systems. (2) The definition of reflexivity and its relation with the ?second order cybernetics dilemma.? This is the place where heuristic and epistemological problems are found. Such problems result from both the problem of representation and from the ontological status of the real. This analysis will show why reflexivity is a key concept to explaining the transformations suffered by such systems. Then, legal tolerance is a newer development in respect to the idea of planning. As an alternative to hard planning, legal tolerance creates a fostering environment. Instead of a single system directing other systems, legal tolerance is relational and created collectively by the organizational national state using its (limited) power of legal creation. Legal tolerance also stems from the concerned subsystems of the society (economy, law, politics, science, along with others) by means of a variety of legislative products, public policies, alliances, and legal and other scientific communications that emerge as coordinating mechanisms among the alluded major subsystems. (shrink)

I examine the impact of the presence of anarchists among key legal officials upon the legal positivist theories of H.L.A. Hart and Joseph Raz. For purposes of this paper, an anarchist is one who believes that the law cannot successfully obligate or create reasons for action beyond prudential reasons, such as avoiding sanction. I show that both versions of positivism require key legal officials to endorse the law in some way, and that if a legal system (...) can continue to exist and function when its key officials reject the reason-giving character of law, then we have a reason to re-examine and amend legal positivism. (shrink)

David Lyons is one of the preeminent philosophers of law active in the United States. This volume comprises essays written over a period of twenty years in which Professor Lyons outlines his fundamental views about the nature of law and its relation to morality and justice. The underlying theme of the book is that a system of law has only a tenuous connection with morality and justice. Contrary to those legal theorists who maintain that no matter how bad the (...) law of a community might be, strict conformity to existing law automatically dispenses "formal" justice, Professor Lyons contends that the law must earn the respect that it demands. Moreover, we cannot, as some would suggest, interpret law in a value-neutral manner. Rather courts should interpret statutes, judicial precedents, and constitutional provisions in terms of values that would justify those laws. In this way officials can promote the justifiability of what they do to people in the name of law, and can help the law live up to its moral pretensions. (shrink)

Legal Realism Judges ascertain and apply the law. This is what almost everyone would suppose, and legal writers as far apart in their views of law as Sir ...

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)

In this study of Robert Boyle's epistemology, Jan W. Wojcik reveals the theological context within which Boyle developed his views on reason's limits. After arguing that a correct interpretation of his views on 'things above reason' depends upon reading his works in the context of theological controversies in seventeenth-century England, Professor Wojcik details exactly how Boyle's three specific categories of things which transcend reason - the incomprehensible, the inexplicable, and the unsociable - affected his conception of what a natural (...) philosopher could hope to know. Also covered in detail is Boyle's belief that God had deliberately limited the human intellect in order to reserve a full knowledge of both theology and natural philosophy for the afterlife. (shrink)

The paper analyzes the sacred foundations of Western institutional order, moving from an epistemological, historical and legal–aesthetic perspective. Firstly, it identifies an epistemological theory of complexity which, pursuing Hayek’s theory of complexity, Robilant’s notion of informative–normative systems, Popper’s theory of the Worlds, and Dupuy’s theory of endogenous fixed point, will conclusively lead to presenting the hypothesis of World 0 as the World of the foundation of legal thinking, the home of the sacred and the aesthetic. Secondly, it identifies (...) the axiological character of the legal aesthetic as a discipline, a topic that will be taken up in relation to the work of the French historian of canonical law and psychoanalyst Legendre, starting from the analysis of a legal/historiographical context (Corpus Iuris Civilis, Corpus Iuris Canonici, Hobbesian Leviathan, Kelsenian Grundnorm). Thirdly, following Ellul’s thought on secularization, the idea that we now live in a secularized, lay society, lacking in the sacred is revealed as a sort of illusion, the creation of a myth of modernity, only apparently rational. Finally the paper proposes as the task of legal theory the identification of the system of “nomograms” in which the normative message is organized, according to a nonreductionistic approach that forces legal theory to recognize the plurality of the iconic forms of the normative message. The “nomograms” respond to the need of extending the field of legal science to phenomena that the positivist theory of law does not consider important, but which the process of evolution of contemporary society imposes. (shrink)

Is the nature of law to be formal procedure or to embody substantive value? This work deals with the traditional conflict in legal philosophy between positivistic and anti-positivistic theories of law. It examines the conflict with respect to seven central issues in legal philosophy--law as a reason for action, law and authority, the internal point of view to law, the acceptance of law, discretion and principle, interpretation and semantics, and law and the common good. This work argues that (...) although this conflict cannot be resolved, the true nature of law is revealed--not obscured--by this perennial situation. (shrink)

This lecture is cpncerned with the expected-utility or Bayesian model of rationality, with particular attention both to the strengths and limitations of the model. The alternative market and legal models of rationality are examined and rejected as less satisfactory than the expected-utility model. The role of intuitive judgement in the context of actual decision making is stressed. The fundamental place of intuitive judgement in science, especially in the performance of experiments and the analysis and presentation of results is analyzed. (...) Errors of measurement naturally arise in application of the expected-utility model, but there is a long history of theory and practice for dealing with such errors. The existence of such errors constitutes a limitation, not a prohibition, on the use of expected-utility theory as a fundamental framework for rational behaviour. (shrink)

What's wrong with markets in everything? Markets today are widely recognized as the most efficient way in general to organize production and distribution in a complex economy. And with the collapse of communism and rise of globalization, it's no surprise that markets and the political theories supporting them have seen a considerable resurgence. For many, markets are an all-purpose remedy for the deadening effects of bureaucracy and state control. But what about those markets we might label noxious-markets in addictive drugs, (...) say, or in sex, weapons, child labor, or human organs? Such markets arouse widespread discomfort and often revulsion. In Why Some Things Should Not Be for Sale, philosopher Debra Satz takes a penetrating look at those commodity exchanges that strike most of us as problematic. What considerations, she asks, ought to guide the debates about such markets? What is it about a market involving prostitution or the sale of kidneys that makes it morally objectionable? How is a market in weapons or pollution different than a market in soybeans or automobiles? Are laws and social policies banning the more noxious markets necessarily the best responses to them? Satz contends that categories previously used by philosophers and economists are of limited utility in addressing such questions because they have assumed markets to be homogenous. Accordingly, she offers a broader and more nuanced view of markets-one that goes beyond the usual discussions of efficiency and distributional equality--to show how markets shape our culture, foster or thwart human development, and create and support structures of power. An accessibly written work that will engage not only philosophers but also political scientists, economists, legal scholars, and public policy experts, this book is a significant contribution to ongoing discussions about the place of markets in a democratic society. (shrink)

The U.S. Federal regulations allow institutional review boards (IRBs) to approve non-beneficial pediatric research when the risks are a minor increase over minimal, provided that the research is likely to develop generalizable knowledge about the subjects' disorder or condition. This “subjects' condition” requirement is quite controversial; commentators have argued for a variety of interpretations. Despite this considerable disagreement in the literature, there have not been any attempts to apply principles of legal interpretation to determine how the subjects' condition requirement (...) should be understood. (shrink)

The extension of human rights obligations to corporations raises questions about whose rights and which rights corporations are responsible for. This paper gives a partial answer by asking what legal rights corporations would need to have to fulfil various sorts of human rights obligations. We should compare thechances of human rights fulfilment (and violations) that are likely to result from assigning human rights obligations to corporations with the chances of humanrights fulfilment (and violations) that are likely to result from (...) giving corporations the legal rights needed to undertake those human rights obligations. Corporationsshould respect basic human rights of all people. Non-complicity in human rights violations requires that corporations have the right to political freedom of speech.To actively protect people from human rights violations, corporations need the right to hire armed security personnel; such obligations should be limited to protecting corporate property and narrowly defined stakeholders. Obligations to spend corporate resources on human rights fulfilment are confined to contributing to specific projects. Corporations have no obligation to ensure a society in which human rights are fulfilled. This principle helps us understand why corporate obligations are substantially different from those of governments. (shrink)

Husak's primary goal is to defend a set of constraints to limit the authority of states to enact and enforce criminal offenses. In addition, Husak situates this endeavor in criminal theory as traditionally construed. This book urges the importance of this topic in the real world, while most Anglo-American legal philosophers have neglected it.

This paper questions the prevailing historical understanding that scientific racism "retreated" in the 1950s when anthropology adopted the concepts and methods of population genetics and race was recognized to be a social construct and replaced by the concept of population. More accurately, a "populational" concept of race was substituted for a "typological one"-this is demonstrated by looking at the work of Theodosius Dobzhansky circa 1950. The potential for contemporary research in human population genetics to contribute to racism needs to be (...) considered with respect to the ability of the typological-population distinction to arbitrate boundaries between racist society and nonracist, even anti-racist, science. I point out some ethical limits of "population thinking" in doing so. (shrink)

Book Information The Limits of Abstraction. The Limits of Abstraction Kit Fine , Oxford : Clarendon Press , 2002 , x + 203 , £18.99 (cloth). By Kit Fine. Clarendon Press. Oxford. Pp. x + 203. £18.99 (cloth).

Social exclusion and legal marginalization are important determinants of health outcomes for people who use illicit drugs, sex workers, and persons who face criminal penalties because of homosexuality or transgenderism. Incarceration may add to the health risks associated with police repression and discrimination for these persons. Access to legal services may be essential to positive health outcomes in these populations. Through concrete examples, this paper explores types of legal problems and legal services linked to health outcomes (...) for drug users, sex workers, and sexual minorities and makes recommendations for donors, legal service providers, and civil society organizations. (shrink)

This paper considers what are the appropriate limits of parental or guardian proxy consent for a child's participation in medical or social science research. Such proxy consent, it is proposed, is invalid in regards “non-therapeutic research.” The latter research may add to scientific knowledge and/or benefit others, but any benefit to the child research participant is but a coincidental theoretical possibility and not a primary objective. Research involving children, without intended and acceptable prospect of beneficial outcome to the individual (...) participant, even if with negligible risk, does not meet the test for “best interests.” Proxy consent for children's involvement in research is justifiable only when given for and on behalf of the child in his or her best interest to enhance the child's well-being. Only in the latter case is the parental proxy consent situation analogous in regards key criteria to a competent individual consenting to research participation. (shrink)

The article explores the limits of buck-passing analysis in evaluating value or goodness. It talks about the inability of back-passers to account for two important types of value or goodness, which include excellence and means. The use of delimiting strategy in buck-passing analysis in order to be in possession of goodness is discussed.

Over the past few decades, Seymour Feldman has contributed important studies on the philosophy of Levi ben Gershom, better known as Gersonides (1288-1344), as well as a highly acclaimed annotated translation of Gersonides' philosophical opus, The Wars of the Lord. Feldman now offers a succinct conspectus of Gersonides' positions on the pivotal issues of medieval Jewish philosophy and the arguments he offers in their favor: creation; God and His attributes; divine omniscience, providence, and omnipotence; prophecy; humanity; and the Torah. Feldman's (...) guiding thesis is encapsulated in the book's subtitle: Judaism within the Limits of Reason. Gersonides is fully committed to the authority of Scripture and .. (shrink)

The aim of this paper is to illustrate four properties of the non-relativistic limits of relativistic theories: (a) that a massless relativistic field may have a meaningful non-relativistic limit, (b) that a relativistic field may have more than one non-relativistic limit, (c) that coupled relativistic systems may be ''more relativistic'' than their uncoupled counterparts, and (d) that the properties of the non-relativistic limit of a dynamical equation may differ from those obtained when the limiting equation is based directly on (...) exact Galilean kinematics. These properties are demonstrated through an examination of the non-relativistic limit of the familiar equations of first-quantized QED, i.e., the Dirac and Maxwell equations. The conditions under which each set of equations admits non-relativistic limits are given, particular attention being given to a gauge-invariant formulation of the limiting process especially as it applies to the electromagnetic potentials. The difference between the properties of a limiting theory and an exactly Galilean covariant theory based on the same dynamical equation is demonstrated by examination of the Pauli equation. (shrink)

Since 1989 there has been an ongoing controversy about the limits of public discussion of bioethical issues in the German-speaking world. While a number of scholars have been involved, Peter Singer and Helga Kuhse have been the principal targets of those seeking to limit bioethical debates. Those who have supported silencing discussion of certain issues have argued that such public discussion leads to a loss of freedom. In the article we argue that toleration is not based on subjectivism but (...) rather on reason. Furthermore, the efforts to suppress debate are often based on a failure to understand our position. Such efforts at suppression also rest on an elitist view of society that must assume that the general public cannot debate such topics. Keywords: bioethics, disabled infant, Helga Kuhse, Peter Singer, sanctity of life, toleration CiteULike Connotea Del.icio.us What's this? (shrink)

What makes insurance special among risk technologies is the particular way in which it links solidarity and technical rationality. On one hand, within insurance practices ‘risk’ is always defined in technical terms. It is related to monetary measurement of value and to statistical probability calculated for a limited population. On the other hand, and at the same time, insurance has an inherent connection to solidarity. When taking out an insurance, one participates in the risk pool within which each member is (...) reciprocally responsible for others’ risks. The combination of technical controllability and solidarity has made insurance a successful tool for governing welfare societies during the twentieth century. From the point of view of business ethics, it is interesting that, as we argue in this article, the connection between insurance and solidarity is not limited to social welfare assemblages, but is evident in relation to private insurance as well. At the same time, however, it is important to understand that insurance does not advance all forms of solidarity. Hence, this theoretical article analyzes the specific conceptions of solidarity that the different forms of insurance practice produce. Particular emphasis is put on the distinction between ‘chance solidarity’ and ‘subsidizing solidarity’. The main questions of the article are: What kinds of conceptions of solidarity are built in the insurance technology? And how are the limits of solidarity defined and justified in different forms of insurance? (shrink)

: The increasing reliance upon, and perhaps the growing public and professional skepticism about, the special expertise of bioethicists suggests the need to consider the limits of moral expertise. For all the talk about method in bioethics, we, bioethicists, are still rather far off the mark in understanding what we are doing, even when we may be going about what we are doing fairly well. Quite often, what is most fundamentally at stake, but equally often insufficiently acknowledged, are inherently (...) political, essentially contested visions of the most compelling and attractive forms of life for individuals and social organization. The current situation in bioethics parallels similar debates in eighteenth-century jurisprudence, especially Jeremy Bentham's withering critique of the prevalent forms of judicial argument and his own, equally unsuccessful, attempt to develop a decision-making procedure in ethics that would operate on a plane above politics. The risk, both then and now, is that we will fail to appreciate the wide range of reasonable disagreement that will remain past the point of extended reflection and discussion. (shrink)

The nature and limits of the physician's professional responsibilities constitute core topics in clinical ethics. These responsibilities originate in the physician's professional role, which was first examined in the modern English-language literature of medical ethics by two eighteenth-century British physician-ethicists, John Gregory and Thomas Percival. The papers in this annual clinical ethics number of the Journal explore the physician's professional responsibilities in the areas of surgical ethics, matters of conscience, and managed care.

Understanding the operation and evolution of gene regulation networks is critical to understanding ontogeny and evolution. According to Stuart Kauffman's view, (1) each cell type cycles through its own repeated pattern of gene expression, (2) the order of ontogeny is dependent on these cycles being short, and (3) evolution is possible because these cycles mutate gradually. This view of gene regulation reflects Kauffman's view that ontogeny is fundamentally the process of cells repeating cycles of activity. I criticize Kauffman's (...) view of gene regulation networks and offer the connectionist theory of gene regulation as an alternative. On this view, the generic order of gene regulation mechanisms is due to the qualitatively consistent way that one gene product influences the expression of another. This allows networks to be stable and evolve to regulate accurately, allowing cells to react appropriately to their microenvironments, due to design by natural selection. Introduction Kauffman's Model of Gene Regulation Explaining the Order of Kauffman's K = 2 Networks The Importance and Relevance of Kauffman's Explanations of the Order of Gene Regulation Additional Orderly Facts of Transcription The Order of Network Accuracy The Accuracy of Connectionist Networks The Evolvability of Gene Regulation Networks Laws of Structure CiteULike Connotea Del.icio.us What's this? (shrink)

This paper addresses the significance of primitivism as a figure of thought during the emergence of Kulturwissenschaften—consisting of different fields of knowledge, disciplines—in Germany at the beginning of the twentieth centuryTwo interrelated problems in particular shaped the scholarly discourse on primitivism: first the question of the existence, Thought Modes of Operation of ‘Other’ Forms of, consciousnessSecond the epistemological question how these ‘other’ forms of thought could be recognized if the researcher him or herself belonged to a particular historically determined (...) European mode of thought & of. perceptionIn this context the art (2008). 'Pushing the Limits of Understanding': The Discourse on Primitivism in German Kulturwissenschaften, 1880–1930. (shrink)

Philosophical discussions of legal ethics should be oriented around the generative problem , which asks two fundamental questions. First, how does the lawyer's role generate reasons? Second, what kinds of reasons can this role generate? Every extant theory of legal ethics is based on a solution to the generative problem. On the generative method , theories of legal ethics are evaluated based on the plausibility of these solutions. I apply this method to three prominent theories of (...) class='Hi'>legal ethics, finding that none is based on a fully satisfactory solution to the generative problem. This method has important implication for the study of legal ethics. Philosophically, it moves theoretical debates about legal ethics closer to other debates about the sources of normativity, like those concerning promises. Further, this method identifies a realworld dimension to these theoretical debates. Focusing on the generative problem allows for the empirical verification of hypotheses about legal ethics that have, to date, largely been conjectured. (shrink)

Tolerance is one of the most important aims of education in a contemporary pluralist society. On the other hand, there is very wide agreement that some phenomena like violence or indoctrination in school are so bad or wrong that they must not be tolerated. In this context, two problems are discussed. First, the limits of tolerance regarding the right of students in public schools to be excused from the specific parts of Instruction which they or their parents see as (...) a form of indoctrination. Secondly, the respect for individual students and their autonomy as a limitation on tolerance regarding the "right" of parents who are members of certain religious sects to exempt their children from the mandatory education in order to maintain their communal and religious identity. (shrink)