This unique text is organized around the most current ethical and legal standards as defined by the mental health professionals of psychology, social work, ...
This book brings together new work by some of the foremost writers in the health care law arena. It presents exciting new insights,drawing on feminist theory and methodology to further our understanding of health care law. Whilst the book makes a real contribution to both feminist debates and the analysis of this area of law, it is also accessible to the undergraduate student who is approaching this area of legal scholarship and feminist jurisprudence for the first time. Its focus (...) is not merely on those issues which have traditionally excited feminist attention, but also includes those subjects which have proved of less apparent interest such as confidentiality, medical research, medical negligence and professional discipline. (shrink)
The revised classic on the professional and legal standards of school psychology This completely updated edition of the leading ethics and law guide provides ...
Featuring an impressive roster of contributors, this book will serve as a bold and irreplaceable source of information for legal scholars, lawyers, and ...
This 12-chapter text prepares students to understand the legal and ethical issues inherent to working in an ambulatory health care setting. It features pertinent legal cases, anecdotes, and sidebars related to health-related careers. Content has been updated and special attention has been paid to legislation affecting health care.
Foucault's theoretical framework -- Foucault's monsters as genealogy : the abnormal individual -- An English legal history of monsters -- Changing sex : the problem of transsexuality -- Sharing bodies : the problem of conjoined twins -- Admixing embyros : the problem of human/animal hybrids -- Conclusion.
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.
Uniquely, this book also looks at the potential for 'horizontal' development of ABS law and policy, applying lessons from bilateral approaches to other national ...
This volume examines the role and influence of multiculturalism in general theories of international law; in the composition and functioning of international ...
This new edition of Drucilla Cornell's highly acclaimed book includes a substantial new introduction by the author, which situates the book within current ...
These are women who are not only vulnerable but also evidently worthy of the protections or rewards promised: punishment of the rapist or the hero's love ...
At a time when the political left have watched the apparent decline of socialism, and with it the cynical rejection of political hope, the question of how to rethink political transformation has become a pressing question. In Transformations Drucilla Cornell offers us a unique conception of recollective imagination which allows us to preserve and re-articulate the tradition of critical social theory. Cornell argues that psychoanalysis must play a role in social theory because we need to understand the connection between our (...) constitution as gendered subjects and social, political and legal transformation. We cannot avoid the question of how the subject is constituted if we are to provide a new conception of radical change. A remarkable work combining the insights of recent feminist and critical theory with the concerns for social change. (shrink)
Peopling the donor world -- The meaning of family in a changing world -- Creating families -- Creating communities across families -- The laws of the donor world: parents and children -- Law, adoption, and family secrets: disclosure and incest -- Reasons to regulate -- Regulating for connection -- Regulating for health and safety: setting limits in the gamete world -- Why not to regulate -- Conclusion: challenging and creating kinship.
In three parts, this volume in the AP-LS series explores the phenomena of captivity and risk management, guided and informed by the theory, method, and policy ...
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)
Laws set requirements that force organizations to assess the security and privacy of their IT systems and impose them to implement minimal precautionary security measures. Several IT solutions (e.g., Privacy Enhancing Technologies, Access Control Infrastructure, etc.) have been proposed to address security and privacy issues. However, understanding why, and when such solutions have to be adopted is often unanswered because the answer comes only from a broader perspective, accounting for legal and organizational issues. Security engineers and legal experts (...) should analyze the business goals of a company and its organizational structure and derive from there the points where security and privacy problems may arise and which solutions best fit such (legal) problems. The paper investigates the methodological support for capturing security and privacy requirements of a concrete health care provider. (shrink)
Laws set requirements that force organizations to assess the security and privacy of their IT systems and impose them to implement minimal precautionary security measures. Several IT solutions (e.g., Privacy Enhancing Technologies, Access Control Infrastructure, etc.) have been proposed to address security and privacy issues. However, understanding why, and when such solutions have to be adopted is often unanswered because the answer comes only from a broader perspective, accounting for legal and organizational issues. Security engineers and legal experts (...) should analyze the business goals of a company and its organizational structure and derive from there the points where security and privacy problems may arise and which solutions best fit such (legal) problems. The paper investigates the methodological support for capturing security and privacy requirements of a concrete health care provider. (shrink)
The current status of explanation worked out by Physics for the Periodic Law is considered from philosophical and methodological points of view. The principle gnosiological role of approximations and models in providing interpretation for complicated systems is emphasized. The achievements, deficiencies and perspectives of the existing quantum mechanical interpretation of the Periodic Table are discussed. The mainstream ab initio theory is based on analysis of selfconsistent one-electron effective potential. Alternative approaches employing symmetry considerations and applying group theory usually require some (...) empirical information. The approximate dynamic symmetry of one-electron potential casts light on the secondary periodicity phenomenon. The periodicity patterns found in various multiparticle systems (atoms in special situations, atomic nuclei, clusters, particles in the traps, etc) comprise a field for comparative study of the Periodic Laws found in nature. (shrink)
Any study of the 'Scientific Revolution' and particularly Descartes' role in the debates surrounding the conception of nature (atoms and the void v. plenum theory, the role of mathematics and experiment in natural knowledge, the status and derivation of the laws of nature, the eternality and necessity of eternal truths, etc.) should be placed in the philosophical, scientific, theological, and sociological context of its time. Seventeenth-century debates concerning the nature of the eternal truths such as '2 + 2 = 4' (...) or the law of inertia turn on the question of whether these truths were created along with nature, or were uncreated and subsisting in God's mind. One's answer to that question has direct consequences for conceptions of the necessity/contingency of mathematical and natural knowledge, how knowledge of such truths is accomplished by humans, and what grounds these truths. In this paper, I review the positions of four successors to Descartes' philosophy on the question of the eternal truths to illustrate how in specific ways that question with its theological, metaphysical, modal, and epistemological dimensions concerned the objectivity and certainty of the discoveries of the new science. Author Recommends: Clarke, Desmond. Descartes' Philosophy of Science . University Park, Penn State Press, 1982. This work provides an account of Descartes as a practicing scientist whose rationalism is mitigated by reliance on experiment and experience. Author re-examines Descartes' philosophical and scientific works in this new light. Dear, Peter. Revolutionizing the Sciences: European Knowledge and its Ambitions, 1500–1700 . Princeton, Princeton University Press, 2001. This work provides a useful overview of the issues and thinkers of the Scientific Revolution. Of particular relevance is chapter 8 on Cartesian and Newtonian science. Funkenstein, Amos. Theology and the Scientific Imagination from the Middle Ages to the Seventeenth Century . Princeton, Princeton University Press, 1986. This work is an advanced study of the theological and metaphysical foundations of early modern science. Discussions include questions of God's nature, God's knowledge in relation to human knowledge, providence, the laws of nature, and the truths of mathematics. In particular, chapter 3 discusses Descartes' account of the eternal truths and divine omnipotence. Garber, Daniel. Descartes' Metaphysical Physics . Chicago, University of Chicago Press, 1992. This work examines how Descartes' metaphysical doctrines of God, soul, and body set the groundwork for his physics. It includes a study of God and the grounds for the laws of physics (chapter 9). Henry, John. The Scientific Revolution and the Origins of Modern Science . 3rd ed. New York, Palgrave, Macmillan Press, 2008. This work provides a brief, general, and informative overview of the Scientific Revolution, including the themes of method, magic, religion, and culture. Osler, Margaret J. Divine Will and the Mechanical Philosophy: Gassendi and Descartes on Contingency and Necessity in the Created World . Cambridge, Cambridge University Press, 1994. This work is an examination and comparison of the mechanical philosophies of Gassendi and Descartes. It offers in-depth discussion of the issue of voluntarism and intellectualism in the period and how that related to conceptions of laws of nature and the eternal truths. Shapin, Steven. The Scientific Revolution . Chicago, University of Chicago Press, 1996. This work provides a critical synthesis of as well as a guide to recent scholarship in the history of science for a general readership. Online Materials Dr. Robert A. Hatch's Scientific Revolution Website: http://web.clas.ufl.edu/users/rhatch/pages/03-Sci-Rev/SCI-REV-Home/ A compendium of resources for the study of Scientific Revolution. Early English Books Online: http://eebo.chadwyck.com/home Early English Books Online (EEBO) contains digital facsimile page images of virtually every work printed in England, Ireland, Scotland, Wales and British North America and works in English printed elsewhere from 1473 to 1700. Early Modern Resources: http://www.earlymodernweb.org.uk/emr/ Early Modern Resources is a gateway for all those interested in finding electronic resources relating to the early modern period in history. Gallica, the Digital Library of the Bibliothèque Nationale de France: http://gallica.bnf.fr/ An ever-growing digital library which includes numerous primary and secondary texts of relevance to Descartes and his role in Scientific Revolution. Hatfield, Gary, 'René Descartes', The Stanford Encyclopedia of Philosophy. Spring 2009 ed. Ed. Edward N. Zalta; URL: http://plato.stanford.edu/archives/spr2009/entries/descartes/ Slowik, Edward, 'Descartes' Physics', The Stanford Encyclopedia of Philosophy. Winter 2008 ed. Ed. Edward N. Zalta; URL: http://plato.stanford.edu/archives/win2008/entries/descartes-physics/ Syllabus Sample Syllabus: Cartesian Science The following is five weeks covering Cartesian Science in a course on Descartes or the Scientific Revolution, or 17th-century theories of matter, or related themes on early modern truth and method, especially on the continent. This material is best suited to a graduate level audience, but it could be modified to suit an upper-division undergraduate course, as the readings are basically primary texts whose context and background can be explained in lectures. Week 1: Cartesian Revolution in France • Scientific method • Role of mathematics and experiment • Certainty of scientific knowledge Readings: Hatfield, Gary, 'René Descartes', The Stanford Encyclopedia of Philosophy. Spring 2009 ed. Ed. Edward N. Zalta; URL: http://plato.stanford.edu/archives/spr2009/entries/descartes/ Descartes, Discourse on Method , Parts 1–3 Descartes, Meditations on First Philosophy , First Meditation. Week 2: Descartes' Scientific Treatises • Mechanization and mathematization of nature • Primary–secondary quality distinction Readings: Discourse on Method, Parts 4–6 Selections from Descartes' Scientific Essays: The World or Treatise on Light (ATXI 3–48); Treatise on Man (ATXI 119–202); Optics (ATVI 82–147). Slowik, Edward, 'Descartes' Physics', The Stanford Encyclopedia of Philosophy. Winter 2008 ed. Ed. Edward N. Zalta; URL: http://plato.stanford.edu/archives/win2008/entries/descartes-physics/ Henry, John, 'The Mechanical Philosophy,' chapter 5. The Scientific Revolution and the Origins of Modern Science . 3rd ed. Macmillan, 2008. Week 3: Descartes' Theory of Nature • Descartes' derivation of the law of conservation and the three laws of motion • God's role in the metaphysics and physics of nature Readings: Selections from Principles of Philosophy, Preface (all); Letter to Elizabeth; Part I: 1–8; Part II: 1–45, 55, 64; Part III: 1–4, 15–19, 45–47; Part IV: 187–207. John Henry, 'Religion and Science,' chapter 6. The Scientific Revolution and the Origins of Modern Science . 3rd ed. Macmillan, 2008. Week 4: Post-1650 Cartesian Science: Necessity and Contingency in Nature • Debates on God, Creation, and Causes Readings: Easton, Patricia, 'What is at Stake in the Cartesian Debates on the Eternal Truths?' Philosophy Compass 4.2 (2009): 348–62. Malebranche, Nicolas, 'Elucidation 10', from The Search after Truth (1674). Note: All selections available in Nicolas Malebranche (1992). Philosophical Selections , edited by S. Nadler, Hackett. Gottfried Leibniz (1714) Monadology . Week 5: Causes in Nature and Morals • Theodicy as an explanation of defect and evil in a lawful universe: Malebranche v. Leibniz Readings: Nicolas Malebranche, Elucidation XVI (on occasionalism), and Treatise on Nature and Grace, Discourse One, Part 1. Gottfried Leibniz (1706), Theodicy. Focus Questions Weekly questions can be used to focus the readings. This can be done in a web or e-mail discussion thread, as a weekly assignment, or for in class discussion. I require students to post a short paragraph in response to the question or some posting by a classmate on the question. Students are required to post by 10 a.m. the day before we meet for class on a course website. Week 1: According to Descartes, what role does skepticism play in scientific reasoning? Week 2: Comment on the following: 'But I am supposing this machine to be made by the hands of God, and so I think you may reasonably think it capable of a greater variety of movements than I could possibly imagine in it, and of exhibiting more artistry than I could possibly ascribe to it' [ Treatise on Man ; ATXI 120]. Week 3: What is Descartes' conception of the relation between the metaphysics and physics of nature? Week 4: Critically discuss the positions of Descartes, Malebranche, and Leibniz on what provides the foundation for the certitude of natural knowledge? Week 5: Explain why both Malebranche and Leibniz consider moral sin to be analogous to natural defect? Seminar/Project Idea Hold a debate on the question of the status of the eternal truths. The proposition will be Descartes' position: 'Eternal truths must be both created and necessary if certainty in science is to be possible'. Format: 1. At the beginning of the 5-week module, students will be assigned to one of three roles: Team A, Team B, and judge's panel. Students will be given the debate proposition, but will not be told which team will take the affirmative and which team the negative until the time of the debate. 2. Recommend a variation on the Classic Debate Format to encourage the development of argument: sequence begins with affirmative construction (8 minutes), negative construction (8 minutes), second affirmative construction (8 minutes), second negative construction (8 minutes), first negative rebuttal (4 minutes), first affirmative rebuttal (4 minutes), final negative rebuttal (4 minutes) and final affirmative rebuttal (4 minutes). 3. Judges Panel: will consist of 3–4 judges who will assess the performance of Teams A and B. Judgment should be based on the persuasiveness of the team position. 4. Debate will be held at the end of the fifth week, or semester, whichever makes most sense given the course length and structure. Acknowledgements The author gratefully acknowledges the immensely helpful comments and suggestions by the participants in her graduate seminar on the Scientific Revolution: Benjamin Chicka, Sarah Jacques-Ross, Richard Ross, Marcella Stockstill, and Zohra Wolters. (shrink)
In order to understand the system wherein human resource management practices are determined by the interactions of a complex system of actors, it is necessary to have a conceptual framework of analysis. In this respect, the works of scholars (Mitroff, 1983, Stakeholders of the Organizational Mind, Jessey-Bass; Freeman, 1984, Strategic Management: A Stakeholder Approach, Pitman) concerning stakeholder theory opened new perspectives in management theory. An organisation is understood as being part of a politico-economic system of stakeholders who interact and influence (...) management practices. Each stakeholder tries to optimise and protect his interests (Frooman, 1999, Academy of Management Review 24, 191–205; Savage et al., 1991, Academy of Management Executive 5(2), 61–75). The framework of stakeholder analysis enables escape from a purely instrumental approach to HRM, and avoids reducing our understanding of conflicts within companies to mere antagonism between employees and their employers. It enables us to point out the existence of other stakeholders in the relationship. Notably, it allows for the incorporation into management theory of actors from the sphere of politics (president of the republic, government, national elected representatives – deputies and senators – and locally elected representatives – mayors and regional councillors, etc.) as well as their dependent administrations. All these actors are considered to be stakeholders who define the legal framework of firm management and guarantee the application of these laws. (shrink)
'Controversy' is here introduced as a technical term referring to one aspect of dispute. 'Controversy' is here understood as referring to an ongoing antagonistic exchange over a disagreement that cannot be readily resolved by the means at hand. However, the issue is being discussed because the participants believe that the controversy will be resolveable in the framework of a more advanced view which will be generated by the dispute. It is claimed that this (...) 'controversy' merits study; it is not claimed that a dispute can be reduced to this aspect. In fact, it is shown that the dispute studied here involved intrigues in which personal and national prejudices served as weapons.The historical case study is a controversy conducted between G. W. Leibniz and Denis Papin. The first topic of the controversy, which began in 1689 and ended in 1691, was the 'measure of force', but it soon extended also to fundamental issues of mechanics and science in general: to the epistemological status of conservation laws, to the nature of abstractions in science etc.The study shows that far from being a 'logomachia', the 'vis viva controversy' reflected two exclusive legitimate interpretations of the conceptual system involved and enhanced both of them, preparing their 'Aufhebung' in a more elaborate and comprehensive system.An English translation of a not-yet published 'Synopsis Controversiae' by Denis Papin with annotations by Leibniz is attached as an appendix. (shrink)
As their title suggests, "legal philosophers" are more philosophers than lawyers; they are in the business of thinking generally about law rather than doing law in any practical way. While lawyers tend to be jurisdiction-specific in their affiliations and competence, legal philosophers are under no such restriction. At their most ambitious, legal philosophers claim dominion over a jurisprudential realm that is delineated by neither geography nor history. Indeed, presenting themselves as intellectual citizens of the whole legal (...) world, their crafted contributions are not intended to be judged by the contingent standards of local usefulness, but by the pure canons of universal validity. As such, the professional commitment and authority of legal philosophers is based upon their capacity to deal with parochial matters of law, but in a way that rises above and is not reducible to their local circumstances. Accordingly, while these legal philosophers might talk about morality and politics as they relate to law, they do so only in the most theoretical and abstract terms. For them, philosophy inhabits the realm of "truth and necessity" in which the contingent and the local holds little or no analytical sway. The contemporary champion of legal philosophy is undoubtedly Joseph Raz. His extensive and sophisticated work represents the high-water mark of analytical jurisprudence. With the recent publication of Between Authority and Interpretation, he has provided an accessible and stylish showcase of his philosophical theory of law that is as rigorous and demanding as it is provocative and controversial. Because this book builds on as it clarifies and develops the main themes of his work over the past four decades, it offers itself as a convenient focus for a more general assessment of Raz's whole oeuvre. In traversing law's terrain, he is adamant that, whatever the purposes and methods of other disciplines (e.g., sociology, history, anthropology, etc.), any philosophical analysis worth its name must concern itself with delivering insights and understanding about law that are of universal significance. While general conclusions about local laws and systems are important and helpful, they will have no philosophical value unless they can say something general and enduring about law as an institutional phenomenon. A corollary of this is that legal philosophy must insulate itself from contingent moral and political influences that will compromise or contaminate its project of making statements about law?s nature and operation that are not only universally valid, but also locally accurate. In this essay I challenge Raz's philosophical ambitions - and, therefore, much contemporary work in legal philosophy - by concentrating on his crucial methodological distinction between the local and contingent and the universal and necessary. It is my contention that, as there are no places where "moral and political desirability" do not play a role, "necessity" has no reign. Accordingly, I argue that legal philosophy cannot live up to its own methodological expectations and standards of validation. For all its impressive erudition and sophistication, therefore, Raz?s work is a manifesto of "local enthusiasms" that, while instructive and useful in themselves, can lay no claim to reveal the necessary features of law's existence. His work comprises some very contingent and localised generalisations that no amount of philosophical razzle-dazzle can elevate to universal and global truths about law. Blinded by the philosophical light, there is more formal brilliance than substantive bottom-line to Raz's jurisprudence. (shrink)
Recent discussions in the philosophy of science have devoted considerable attention to the analysis of conceptual issues relating to the methodology of explanation and prediction in the sciences. Part of this literature has been devoted to clarifying the very ideas of explanation and prediction. But the discussion has also ranged over various related topics, including the status of laws to be used for explanatory and predictive purposes, the logical interrelationships between explanatory and predictive reasonings, the differences in the strategy of (...) explanatory argumentation in different branches of science, the nature and possibility of teleological explanation, etc. The aim of the present article is to examine the issues involved in such questions from the specialized perspective afforded by one particular kind of physical systems--namely, systems, here to be characterized as discrete state systems, whose behavior has been studied extensively in the scientific literature under the general heading of Markov chains. These systems have been chosen as our focus because their behavior over time can be analyzed at once with great ease and with extraordinary precision. (shrink)
Marine ecosystems are in serious troubles globally, largely due to the failures of fishery resources management. To restore and conserve fishery ecosystems, we need new and effective governance systems urgently. This research focuses on fisheries management in ancient China. We found that from 5,000 years ago till early modern era, Chinese ancestors had been constantly enthusiastic about sustainable utilization of fisheries resources and natural balance of fishery development. They developed numerous rigorous policies and regulations to guide people to act on (...) natural laws. Being detailed and scientific, the legal systems had gained gratifying enforcement, due to official efforts and folks’ voluntary participation in resource management. In-depth analyses show that people’s consciousness of ecological conservation was derived from the edification of kinds of ancient eco-ethical wisdom, such as totemism, nature worship, Zhou Yi , Taoism, Buddhism, Confucianism, Mohism, etc. All this Chinese classical wisdom have the same cores: “Nature and Man in One” spirit, frugality and “All things are equal” concept. The findings show that eco-ethical thinking is never inconsistent with social ethic systems, and it’s of great importance to give legal effect to usual ecological moral claims and eco-ethical requirements of the public in protecting the environment. The eco-ethical wisdom is efficient in assisting and urging people to fulfill humans’ obligation for nature. Finally, it’s believed that present world fisheries management will benefit a lot from all these ancient Chinese thoughts and practices. People are expected to make the most of the eco-ethical wisdom, strengthen fishery legislation and fully stimulate their voluntary participation in both marine fishery resources conservation and fishery cyclic economy. (shrink)
One of the more fundamental questions raised by the generalism–particularism debate in ethics is just what a right-making factor (or reason) is. I contrast two possible conceptions of such factors and defend the second. The first understands right-making factors in terms of moral laws, and variants of it are advanced by writers on either side of the generalism–particularism debate. The second understands right-making factors in terms of right-making properties conceived dispositionally—i.e., as powers, capacities, etc. I defend the latter, dispositionalist conception (...) on the basis of its ability to elucidate and explain various features that right-making factors are widely taken to have, including the ability to contribute to the overall moral status of an action without determining it. I also offer dispositionalist conceptions of other morally relevant factors, including defeaters, intensifiers, and disablers. And I deploy these conceptions to elucidate and defend moral holism (or the holism of the right-making relation). (shrink)
Criminal law scholars approach legality in various ways. Some scholars eschew over-arching principles and proceed directly to one or more distinct “rules”: (1) the rule against retroactive criminalization; (2) the rule that criminal statutes be construed narrowly; (3) the rule against the judicial creation of common-law offenses; and (4) the rule that vague criminal statutes are void. Other scholars seek a single principle, i.e., the “principle of legality,” that they claim underlies the four rules. In contrast, I believe that both (...) approaches are misguided. There is no such thing as a single “principle of legality;” yet, the four aforementioned rules are not unrelated to each other. The so-called “principle of legality” consists of two distinct norms that derive, respectively, from two fundamental principles of criminal justice, viz., the principle, “No person shall be punished in the absence of a bad mind,” and the principle that underlies the maxim, “Every person is presumed innocent until proven guilty.” The first norm of legality explains the rules regarding ex post facto legislation, and rules regarding “notice” and “fair warning” of judicial decisions. When a person is punished for violating a rule that was non-existent or unclear at the time he acted, he is punished for conduct that the state now condemns and seeks to prevent by means of penal sanctions. Accordingly, at the time the person is prosecuted, his claim is not that he did not do anything that the state regards as wrong, but, rather, that he neither knew nor should have known that he was doing something that the state would come to regard as wrong. He ought, indeed, to be excused for his mistake, but only because of a principle that is common to excuses generally: “No person ought to be punished in the absence of a guilty mind.” He should be excused because even when a person does something the state condemns and seeks to prevent, he ought not to be blamed for it unless he was motivated in a certain way, namely, by an attitude of disrespect for the legitimate interests of the political community by whose norms he is bound.The second norm of legality informs several of the remaining rules, though not all of them. The second norm is that a person ought not to be punished in the name of a political community unless it can confidently be said that the community officially regards his conduct as warranting the criminal punishment at issue. It is a norm that is most commonly associated with the rule of lenity, but it is not confined to the construction of statutes that are ambiguous or vague. It can also be also violated when a person is punished for violating a statute that has fallen into desuetude, regardless of how widely promulgated or narrowly defined the statute may be. This second norm derives from a principle that also underlies the presumption of innocence - the only difference being that the presumption of innocence is a preference for acquittal in the event of uncertainty regarding the facts which an actor is charged, while the second norm of legality is a preference for acquittal in the event of uncertainty regarding the scope of the offense which he is charged.Nevertheless, one “rule” remains that this analysis throws into question - namely, the rule that “vague” criminal statutes are void. Criminal statutes are sometimes so broadly defined that they do, indeed, infringe constitutionally protected rights of speech, movement, etc. - in which event they ought to be invalidated on those very grounds. And criminal statutes are sometimes so broadly drafted that, before applying them, courts ought to construe them to apply only to constitutionally unprotected acts that courts can confidently say the relevant political community regards as warranting punishment. But once statutes are so construed to apply only to constitutionally unprotected conduct, courts have no further reason to invalidate them on grounds of “vagueness.” Lack of “notice” is no reason to invalidate them because, with respect to the narrowly defined conduct such statutes are construed to prohibit, “common social duty” alone ought to alert actors that their conduct is suspect. (shrink)
This paper offers two related things. First, a theory of singular causal statements attributing causal responsibility for a particular harm to a particular agent based on the conjunction of a positive condition (necessitation) and a negative condition (avoidability) which captures the notions of sufficiency and necessity in intuitive ideas about agent causation better than traditional conditio sine qua non based theories. Second, a theory of representation of causal issues in the law. The conceptual framework is that of Game Trees and (...) Games in Extensive Form. Causal conditions are defined set-theoretically over Game Trees; causal issues and fundamental distinctions (dependent versus independent intervening causes, foreseeability or not of harm etc.) arising in legal cases are accommodated by the device of a probability distribution over the game-tree representation of cases. (shrink)
A representation methodology for knowledge allowing multiple interpretations is described. It is based on the following conception of legal knowledge and its open texture. Since indeterminate, legal knowledge must be adapted to fit the circumstances of the cases to which it is applied. Whether a certain adaptation is lawful or not is measured by metaknowledge. But as this too is indeterminate, its adaptation to the case must be measured by metametaknowledge, etc. This hierarchical model of law is quite (...) well-established and may serve well as a basis for a legal knowledge system. To account for the indeterminacy of law such a system should support the construction of different arguments for and against various interpretations of legal sources. However, automatizing this reasoning fully is unsound since it would imply a restriction to arguments defending interpretations anticipated at programming time. Therefore, the system must be interactive and the user''s knowledge be furnished in a principled way. Contrary to the widespread opinion that classical logic is inadequate for representing open-textured knowledge, the framework outlined herein is given a formalization in first order logic. (shrink)
Many global health issues, almost by definition, do not recognize state borders and therefore require bi-lateral, or more often multi-lateral international solutions. These latter solutions are articulated in international instruments (declarations, conventions, treaties, constitutions of international bodies, etc). However, the gap between formal adoption of such instruments by signatory states and substantive implementation of the articulated solutions can be very wide. This paper surveys a selection of international legal instruments, including those where the sought after positive outcomes have been (...) achieved, and those that have been ineffective, with little or no real progress being made. The paper looks for commonalities, both in the nature of the problems and the forms of the international legal instruments, to seek answers as to why some instruments ultimately succeeded where others failed. It also provides some guidance to law/ treaty makers to help ensure that they frame future instruments in such a way as to maximize the probability that those instruments will have a substantive positive impact on global health and health rights. (shrink)
Norms conferring public or private powers, i.e., the competence to issue other norms, play a very important rôle in law. But there is no agreement among legal philosophers about the nature of such norms. There are two main groups of theories, those that regard them as a kind of norms of conduct (either commands or permissions) and those that regard them as non-reducible to other types of norms. I try to show that reductionist theories are not quite acceptable; neither (...) the command-variety (Kelsen, Alf Ross inOn Law and Justice), nor the permission-variety (von Wright, Kanger, Lindahl) provide a satisfactory account of competence norms.Among the authors who maintain that competence norms are different from (and hence not reducible to) norms of conduct are Hart, Ross inDirectives and Norms, and Searle. Ross and Searle distinguish between regulative and constitutive rules as two radically different kinds of rules and classify competence norms among constitutive rules. This distinction runs parallel to von Wright's distinction between rules that are prescriptions and determinative rules. While the first regulate actions (by commanding, prohibiting, or permitting them), determinative rules define certain concepts. To view competence norms as (partial) definitions of certain legal concepts (like those of legislator, judge, etc.) seems to open interesting perspectives and to shed light on at least one aspect of these elusive norms. (shrink)
Legal and political philosophers (e.g., Scanlon, Schauser, etc.) typically regard speech as special in the sense that conduct that causes harm should be less subject to regulation if it involves speech than if it does not. Though speech is special in legal analysis, I argue that it should not be given comparable status in moral theory. I maintain that most limitations on state authority enacted on behalf of a moral principle of freedom of speech can be retained without (...) supposing that speech is entitled to a degree of protection not afforded to (most) other forms of conduct. My argument questions some standard assumptions made by philosophers about the relationship between moral and legal principles. (shrink)
Typically the justification of criminal statutes is based on "liberty-limiting principles" -- e.g., the Harm Principle, the Offense Principle, Legal Paternalism, Legal Moralism, etc. Two philosophers of the criminal law, however -- Richard J. Arneson and Cass R. Sunstein -- take an entirely different tack. Both countenance the use of the criminal law to foreclose one's future options, seeking to preserve one's "true self" from the temptations of one's baser desires. (For reasons which become clear, I call this (...) "community self-paternalism".) In this paper, I take a careful look at "community self paternalism"; scrutiny reveals that this proposed justification of criminalization is quite different from its initial appearance. Revealing its true character dispels much of its initial appeal. I then argue for its rejection; of necessity, "community self-paternalism" treats some individuals as means merely, and not as ends in themselves. (shrink)
The paper explains and differentiates the concept of `fact' in the legal setting. Fact and evidence, fact/falsity distinguished; fact and law considered -- a real difference or a pragmatic device? Questions of fact and degree considered, in themselves and in the context of jury trial and of appeals. Primary fact, factual inferences from primary fact, questions of classification of fact are considered. Whether inference is supported by evidence, and whether classification is correct may be questions of law. Issues of (...) fact and opinion, fact and comment, relative to freedom of speech, defamation etc: no clear distinction available. Legal problems concerning absence of workable distinctions. (shrink)
I discuss the attitude of Jewish law sources from the 2nd–:5th centuries to the imprecision of measurement. I review a problem that the Talmud refers to, somewhat obscurely, as impossible reduction. This problem arises when a legal rule specifies an object by referring to a maximized (or minimized) measurement function, e.g., when a rule applies to the largest part of a divided whole, or to the first incidence that occurs, etc. A problem that is often mentioned is whether there (...) might be hypothetical situations involving more than one maximal (or minimal) value of the relevant measurement and, given such situations, what is the pertinent legal rule. Presumption of simultaneous occurrences or equally measured values are also a source of embarrassment to modern legal systems, in situations exemplified in the paper, where law determines a preference based on measured values. I contend that the Talmudic sources discussing the problem of impossible reduction were guided by primitive insights compatible with fuzzy logic presentation of the inevitable <span class='Hi'>uncertainty</span> involved in measurement. I maintain that fuzzy models of data are compatible with a positivistic epistemology, which refuses to assume any precision in the extra-conscious world that may not be captured by observation and measurement. I therefore propose this view as the preferred interpretation of the Talmudic notion of impossible reduction. Attributing a fuzzy world view to the Talmudic authorities is meant not only to increase our understanding of the Talmud but, in so doing, also to demonstrate that fuzzy notions are entrenched in our practical reasoning. If Talmudic sages did indeed conceive the results of measurements in terms of fuzzy numbers, then equality between the results of measurements had to be more complicated than crisp equations. The problem of impossible reduction could lie in fuzzy sets with an empty core or whose membership functions were only partly congruent. Reduction is impossible may thus be reconstructed as there is no core to the intersection of two measures. I describe Dirichlet maps for fuzzy measurements of distance as a rough partition of the universe, where for any region A there may be a non-empty set of - _A (upper approximation minus lower approximation), where the problem of impossible reduction applies. This model may easily be combined with probabilistic extention. The possibility of adopting practical decision standards based on -cuts (and therefore applying interval analysis to fuzzy equations) is discussed in this context. I propose to characterize the <span class='Hi'>uncertainty</span> that was presumably capped by the old sages as U-<span class='Hi'>uncertainty</span>, defined, for a non-empty fuzzy set A on the set of real numbers, whose -cuts are intervals of real numbers, as U(A) = 1/h(A) 0 h(A) log [1+(A)]d, where h(A) is the largest membership value obtained by any element of A and (A) is the measure of the -cut of A defined by the Lebesge integral of its characteristic function. (shrink)
Declaration of independence became a reference point of a new historical epoch - epoch of free, sovereign development of Uzbekistan. Our country from first days of independent development, under direction of President I.A. Karimov, has headed for refusal of a heritage of a command control system, having started to construction of bases of a democratic legal society with the socially-focused market economy. For achievement of these purposes own model of updating and progress which essential features are the selective approach (...) to experience of the developed countries and the account of specificity and features of centuries-oldevolution of national statehood is involved. In Republic of Uzbekistan process of democratization and modernization of a society became stage-by-stage, with a stress on maintenance of deep understanding of an essence of democracy, in view of sociopolitical traditions and features of national mentality. The heritage of sociopolitical culture of our society has acted original “Means”. By means of which modern values and principles of democracy were brought home to people, their perception and understanding was facilitated. Psychological features of national character, such as tolerance, the aggravated feeling of validity, equality before the law, etc. were especially effectively used. It is known, that the basic directions of democratic transformations and formation of a civil society are defined depending on real needs and opportunities of their realization. We have a precise comprehension of that the major condition of formation of a democratic society is strengthening a role and value in a life of a society of not state and public institutes. In Uzbekistan this process goes by practical realization of the concept “From the strong state - to a strong society”. It is a question of stage-by-stage and gradual reduction of a role of the state structures in the decision of social and economic questions and about transfers of these functions to public organizations. Gradually we go to that participation of the state in economic sphere and a field of activity of managing structures, first of all, a private sector - decreases. In parallel the problem of creation of favorable conditions for realization of publiccontrol on the basis of corresponding motivation - public interests is solved. (shrink)
This paper develops a non-relativist version of contextualism about knowledge. It is argued that a plausible contextualism must take into account three features of our practice of attributing knowledge: (1) knowledge-attributions follow a default-and-challenge pattern; (2) there are preconditions for a belief's enjoying the status of being justified by default (e.g. being orthodox); and (3) for an error-possibility to be a serious challenge, there has to be positive evidence that the possibility might be realized in the given situation. It is (...) argued that standard "semantic" versions of contextualism (e.g. those of Lewis, Cohen, DeRose) fail to take these features into account, which makes them overly hospitable to the sceptic, and that Williams' version of contextualism, although incorporating (1), fails to do justice to (2) and (3). According to the contextualism developed here, although epistemic standards vary with the context, the truth-value of particular knowledge-attributions does not. Contexts here are understood as being constituted by two elements: an epistemic practice (a rule-governed social practice such as a scientific discipline, the law, a craft etc., in which knowledge-claims are evaluated according to specific standards) and the "facts of the matter" (i.e. those facts which, together with the epistemic standards in question, determine which error-possibilities are relevant and thus have to be eliminated for a knowledge-claim to be true). If there are several epistemic practices, and thus several contexts, in which a knowledge-claim can be evaluated, it is the "strictest" practice that counts. In this way, the counterintuitive consequence of other versions of contextualism that the same knowledge-claim can be true in one context, but false in another, can be avoided. At the same time, scepticism can be resisted since even in the "strictest" epistemic practices, error-possibilities become relevant only when backed by positive evidence that they might in fact obtain. (shrink)
Taking precautions to prevent harm. Whether principe de précaution, Vorsorgeprinzip, føre-var prinsippet, or försiktighetsprincip, etc., the precautionary principle embodies the idea that public and private interests should act to prevent harm. Furthermore, the precautionary principle suggests that action should be taken to limit, regulate, or prevent potentially dangerous undertakings even in the absence of absolute scientific proof. Such measures also naturally entail taking economic costs into account. With the environmental disasters of the 1980s, the precautionary principle established itself as an (...) operational concept. On the eve of the 1997 Climate Summit in Kyoto, precaution, as the precautionary principle is often referred to, has now become a key legal principle in environmental law, in general, and in current international climate negotiations, in particular, attempts to understand why. It examines in turn the natural affinity between the precautionary principle and climate change, reviews a series of issues which the principle raises, and discusses avenues which it opens paper, climate change fulfills the theoretical requirements set for the application of the precautionary principle. It comes as no surprise that the actual application of the precautionary principle in the context of climate change raises high political stakes. As a result, climate change science, in particular, and science, in general, is under the fire of politically-motivated scientific skeptics. Thus, by way of the counter-measures which must be put into effect, the precautionary principle calls for a greater sense of responsibility on the part of scientists and the public at large. Specifically, from scientists, it demands perseverance in rigor, excellence in communication, and committment to education. However, even if special efforts are made to implement the precautionary principle in the context of climate change, the success of climate change mitigation will constitute no test of the validity, the usefulness, or the efficiency of the precautionary principle. Indeed, the degree to which climate change mitigation succeeds only provides a measure of our kind's ability to manage responsibly the global commons which we inherited from our ancestors and which our generation enjoys, the global commons which we will pass on to today's children and to generations to come. (shrink)
A limited-liability corporation is an artificial (“legal”) person whose liability is limited to the assets “owned” by the corporation. This means that the real or natural persons (if there are any) who own the corporation are not liable for the consequences of corporate actions or events originating within the property “owned” by the corporation. Thus, while the limited-liability corporation itself is fully liable (i.e., to the full extent of its assets) for such actions and occurrences, its human owners (if (...) there are any) are not liable at all. Admittedly, they run a risk of losing all that they have invested in the corporation, but nothing more. This risk may be called an economic liability but it is not a liability in the relevant juridical sense: debtors cannot turn to the owners of the corporation to ask or compel them to pay its debts—it does not matter whether these debts are consequences of the corporation’s contractual obligations (wages, rents, purchases, loans, etc.) or consequences of harmful actions or events (explosions, flooding, contaminations, etc.) caused by the corporation or its property to third parties. Thus, we have the problem of the standing of the limited-liability corporation in view of the principles of Austro-libertarianism: the limited-liability corporation is a fully liable artificial person that shields any natural persons who are its owners from any liability. This is a problem because we cannot have it both ways. Either the limited-liability corporation is an autonomous (“self-owning”) person in its own right and then no objection can be made to it, as, despite its name, it is fully liable; or it is something owned by natural persons and then these owners must, like all other owners, be held fully liable for what they do (or command or permit others to do) with their property as well as for the consequences of events that originate within their property. Now, from an Austro-libertarian point of view—which, as I understand it, is committed to a realist philosophy and therefore akin to a natural law position1—it does not make sense to say that an artificial person can be an autonomous person in its own right.. (shrink)
In the philosophy of mathematics, as in its a meta-domain, we find that the words as: consequentialism, implicativity, operationalism, creativism, fertility, … grasp at most of mathematical essence and that the questions of truthfulness, of common sense, or of possible models for (otherwise abstract) mathematical creations,i.e. of ontological status of mathematical entities etc. - of second order. Truthfulness of (necessary) succession of consequences from causes in the science of nature is violated yet with Hume, so that some traditional footings of (...) logico-mathematical conclusions should equally be falled under suspicion in the last century. We have in mind, say, strict-material implication which led the emergence of relevance logics, or the law of excluded middle that denied intuitionists i.e. paraconsistent logical systems where the contradiction is allowed, as well as the quantum logic which doesn't know, say, the definition of implication etc. Kant's beliefs miscarried hereafter that number (arithmetic) and form (geometry) would bring a (finite) truth on space and time, when they revealed relative and curvated, just as it is contradictory essentially understanding of basic phenomena in the nature: of light as an unity of wave – particle, or that both "exist" and "don't exist" numbers as powers of sets between 0א and c (the independence of continuum hypothesis) etc. Mathematical truths are ''truths of possible worlds'', in which we have only to believe that they will meet once recognizable models in reality. At last, we argue in favour of thesis that a possible representing "in relief" of mathematical entities and relations in the "noetic matter" (Aristotle) would be of a striking heuristic character for this science. (shrink)
This article describes an ontological model of norms. The basic assumption is that a substantial part of a legal system is grounded on the concept of agency. Since a legal system aims at regulating a society, then its goal can be achieved only by affecting the behaviour of the members of the society. We assume that a society is made up of agents (which can be individuals, institutions, software programs, etc.), that agents have beliefs, goals and preferences, and (...) that they commit to intentions in order to choose a line of behaviour. The role of norms, within a legal system, is to specify how and when the chosen behaviour agrees with the basic principles of the legal system. In this article, we show how a model based on plans can be the basis for the ontological representation of norms, which are expressed as constraints on the possible plans an agent may choose to guide its behaviour. Moreover, the paper describes how the proposed model can be linked to the upper level of a philosophically well-founded ontology (DOLCE); in this way, the model is set in a wider perspective, which opens the way to further developments. (shrink)
Abstract In this paper I am concerned to address the question of voluntary or self?willed death from two distinct positions?a particular community's socio?religious practice (viz. Jaina sallekhan?) and as the matter stands in law (penal code, constitution, judicial wisdom, etc.) in India?in the light of the recent move by a bench of its apex court striking down the penal code section proscribing suicide. I also wish to draw out some implications of these deliberations for the beneficence of medical practice and (...) related bio?ethical ramifications in the Indian context. (shrink)
In both Great Britain and the United States there has been a growing debate about the modern acceptability of jury nullification. Properly understood, juries do not have any constitutional right to ignore the law, but they do have the power to do so nevertheless. Juries that nullify may be motivated by a variety of concerns: too harsh sentences, improper government action, racism, etc. In this article, I shall attempt to defend jury nullification on a number of grounds. First, I discuss (...) the use of general verdicts and reject their replacement in criminal trials by special verdicts. Second, I examine verdicts based upon mistakes and racial prejudice, turning my attention to perverse verdicts and the question of whether or not juries are guilty of legislating when nullifying the law. Finally, I look at the problem of the awarding of excessive damages by juries. My goal will be to provide a sound theoretical defence of the practice of jury nullification. (shrink)
Rights are commonly linked to responsibilities. One commonly hears remarks about the rights and responsibilities of teachers, parents, students, etc. This linking together of the two is the topic of this paper. The paper is divided into four sections. In the first section I distinguish three accounts of the relation between rights and responsibilities any of which we could have in mind when linking the two together, and I single out the third account for further study. Unlike the other two, (...) it seems to offer fresh material for the theory of rights. In the second section I develop this material. I explicate the general relation between rights and responsibilities as this third account represents it, and I specify the grounds for attributing such a relation to them. My aim here is to elucidate a conception of rights that certain legal and political rights can be taken to exemplify and that has been ignored or obscured in recent work in the theory of rights. In the last two sections I turn my attention to human rights. I argue in Section III that Locke's theory of natural rights can be interpreted as upholding the conception of rights elucidated in the preceding section, and I consider and criticize in Section IV an account of the relation between certain human rights and responsibilities that comes from Joel Feinberg's distinction between mandatory and discretionary rights. The arguments of these two sections are meant to strengthen the case for making room in the theory of rights for the conception elucidated in Section II. (shrink)
Rights are commonly linked to responsibilities. One commonly hears remarks about the rights and responsibilities of teachers, parents, students, etc. This linking together of the two is the topic of this paper. The paper is divided into four sections. In the first section I distinguish three accounts of the relation between rights and esponsibilities any of which we could have in mind when linking the two together, and I single out the third account for further study. Unlike the other two, (...) it seems to offer fresh material for the theory of rights. In the second section I develop this material. I explicate the general relation between rights and responsibilities as this third account represents it, and I specify the grounds for attributing such a relation to them. My aim here is to elucidate a conception of rights that certain legal and political rights can be taken to exemplify and that has been ignored or obscured in recent work in the theory of rights. In the last two sections I turn my attention to human rights. I argue in Section III that Locke's theory of natural rights can be interpreted as upholding the conception of rights elucidated in the preceding section, and I consider and criticize in Section IV an account of the relation between certain human rights and responsibilities that comes from Joel Feinberg's distinction between mandatory and discretionary rights. The arguments of these two sections are meant to strengthen the case for making room in the theory of rights for the conception elucidated in Section II. (shrink)
