This chapter contains sections titled: Norms, aspirations and cynicism State obligations Control and blame Notes.

INTRODUCTION BY NANCY FUMERO What is a translation that stalls comprehension? That, when read, parsed, obfuscates comprehension through any language – English, Portuguese. It is inevitable that readers expect fidelity from translations. That language mirror with a sort of precision that enables the reader to become of another location, condition, to grasp in English in a similar vein as readers of Portuguese might from João Guimarães Rosa’s GRANDE SERTÃO: VEREDAS. There is the expectation that translations enable mobility. That what was (...) written in one language be accessible in another. And that a translator is to serve as a mediator, acting ultimately in service to ideas within the source text. To disperse them. However, this notion of translation is partly antithetical to the ideas in Rosa’s work. Or, alternately, to convey the despair of terrain slipping beneath one’s feet, and to encounter the heightened suspense of magic, the translation, as part of its strategy, cannot devotedly rely on its original language, not as its source text. The work undertaken by Felipe W.Martinez is a new form of translation that risks everything in order to encounter the same treacherous knowing Rosa had traversed. And it takes its risks by not taking risks: by being, almost word for word, a literal translation. This is an approach that reductively converts, as opposed to translates. The idiomatic differences between English and Portuguese are not accented. The syntax is not finessed. Liberties are not assumed on account of improving readability. What stands, resoundingly amid such absences, is the awakened challenge of reading. The genuine peril of not knowing. That is, this translation, one that purports to know nothing, creates access into the guileful world Rosa had created in Portuguese. But not by translating. If anything, GRANDE SERTÃO: VEREDAS is speaking a cosmic language through a linguistic one. And W.Martinez does us the service of recognizing this, as what configures the shapes of words and sentences is not as simple as neologisms, portmanteaus, and digressions, but as terrifying as the path the fool traverses: all paths. As such, this translation doesn’t speak English, just as the original does not speak Portuguese. It is the assemblage of paradox as a new logic that can be navigated, if only one could suspend the comfort of readability, of expectation. If one could descend a mountain in the pitch dark of night, each step shocking the body, unable to acclimate to the unleveled heights. Without a doubt, the translation is incongruous to the Portuguese. Taking a small excerpt to compare: Eh, well, thereafter, the rest the Sir provide: comes the bread, comes the hand, comes the god, comes the dog. What is striking is the interplay between “god” and “dog”. To most English speakers, this anagram is a familiar one. But in Portuguese the words god (“deus”) and dog (“cão”) are not so closely linked. In fact, there is no direct mention of “deus” in Rosa’s text: Eh, pois, empós, o resto o senhor prove: vem o pão, vem a mão, vem o são, vem o cão. Both are fascinating. In Rosa’s excerpt, the rhythm is unmistakable and precise, despite, of course, the indices of hesitation: the commas, the Eh, the uncomfortable way of searching through prolongation and wait. This is the sort of paradox Rosa can engage within a sentence. W.Martinez’s does this as well, at a scale that reverberates beyond the sentence, and with one noticeable addition: deus. What may appear to be an overstep, to add such a weighted word that draws out wordplay but is, nevertheless, not in the source text, is exemplary of risk. The translation buzzes because of it. This is because throughout the text we encounter dogs frequently, as some primal beast on par with humans. The dog is one that masters and can be mastered. A creature that is at times its face, and at others a mask. It is a powerful presence. For the translator to be attuned to the reverent undercurrent attributed to this animal, and create within the translation such charged play in English from what was only an implication in Portuguese, is in tribute to the grand beauty within dissonance. What aberrant modes of writing and translation can teach us most assuredly, is that things, words, are not in states of rightness or wrongness, but of oscillation. This isn’t so different from what Rosa says himself: The Sir look…see: the most important and beautiful, of the world, is this: that the people are not always same, still were not completed — but that they go always shifting. They tune or detune. We find this so readily in W.Martinez’s translation, this tuning and detuning. Nancy Fumero Los Angeles GRAND SERTÃO: VEREDAS BY JOÃO GUIMARÃES ROSA TRANSLATED FROM THE PORTUGUESE BY FELIPE W.MARTINEZ Nonothing. Shots that the Sir heard were man brawling not, God be. Bleach white sights on the tree in the backyard, down in the river. By my right. I do this every day, I like; from the bad of boyhood. Thereof they came to call on me. Case of a calf: a white calf, errorful, eyes of to not be—saw selves—; and with a mask of a dog! They told me; I didn’t want to catch a sight. Same that, by the defects of birth, upturned lips, looked to be a laughing man. Folkface, dogface: they determined—it was the devil. Bananas. Killed it. Do not know who owned it. They came to borrow my guns. I caved. I’ve no power to impose. Oh, sir, you laugh certain laughs…Look: when it’s a true shot, first the dogs begin to bark, instantly—after, then, you see who’s handed death. Sir, endure, this is the Sertão. Some want that it is not: that situated Sertão is in and out of those general fields, they say, end of the road, highlands, the other Urucuia. Toleima. For those of Cortino and of Curvelo, then, isn’t here said Sertão? Ah! That there’s more! To place the Sertão it’s told: it’s where the pastures lack latches; where one can tear off ten, fifteen leagues without running into a houseinhabitant; where criminalousness lives out its christ jesus. Sifted out from the tightening grip of the law. The Urcuia comes from the western mountains. But today, its banks, give all—farmlands of farms, pastures of meadows of good yield, low tides, cultures that go kill for kill, until these virgins there are. The general fields run round. These general fields are without size. Ultimately, whichever one one approves, the Sir knows: bread or breads, it’s a question of heads…the Sertão is everywhere. Of the devi? No comment. Sir ask the dwellers. Falsely I fear they unspeak that name of his—only say: whatsitcalled. Volt! no… Whosoever over avoids it, lives with it. In the sentence of one Aristides—who exists in the first palm grove on the right hand side, called Vereda-of-Cow-Calm-of-Saint-Rita—everyone believes: he can't pass in three designated places: then can be heard the tiny cry, behind, a little voice warning:— "Here I come! Here I come!... "— that is the Capirote, the whatsitcalled... And one Jise Simplicio—who anyone from here will swear he keeps an imp in house, a little satanite, imprisoned and obliged to help in all greedful deeds; reason that Simplicio emprises en route to complete riches. As such, for this they say too that his beast bristles and refuses, denying his banner, unyielding, when he wishes to mount... Superstition. Jise Simplicio and Aristides, continue getting fatter, thence unheard or heard. Still the Sir study: right now, in these days of time, you have people purporting that the devil proper stopped, mid-passage, in Andrequice. A boy out of there, to whom'd appeared, and there lauded that, to get here—normally, by horse, a day-n-half—he was capable of such with only some twenty minutes enough... by coasting the River of Chico by the headwaters! Or, too, who knows—sans offense—will not have been, for example, even yourself the Sir who announced such, when you passed by there, for fun run funny? Thereof, not my given crime, I know that wasn't. And evil I wanted not. Only that one question, in hours, at times, brightens peaceful reason. But, the Sir understand: if such a boy, there was, he wanted to dupe. Because, hey, that, to cut the river off by the springs, would be the same thing as one redoubling in the internals of this our state of ours, costant of a journey of some three months... Then? Whatsitcalled? Dodo. The fantastication. And, the respect of giving him such these names of delicacy, is what it is for one to want to invoke that he form of form, with his presence! Not that is. I, personally, almost that have lost in him the creed, deserving to Deus; is the that to the Sir I say, to pure-secret. I know that it is well established, that it greases our Saintly-Gospels. On occasion, I conversed with a young seminarian, super suitable, conferring in the book of prayers and coated in vestments, with a stick of black-sage in hand—prosed that he went auxilitator to the father, to extract the Cujo, from the body living of an oldwoman, in Waterfalls-of-Bulls, he went with the vicar of Field-Round... I conceive. The Sir not is as I? I didn't believe a single thing. Compadre mine Quelemem describes that that which reveals effect are the low spirits meager, of third, adoing in the worst darkness and with anxieties of connecting selves with the livers—they give support. Compadre mine Quelemem is who much me consoles—Quelemem of Goias. But he has to live far from here, in Jijuja, Vereda of Buriti Dark... Ahrr, I leave myself there, that in enevildemonment or with support—the Sir too must have had known diverse, men, women. As not yes? For me, umpteen I've seen, that I've learned. Ma-Neigh, Blood-o'Other, or Legion-Lips, or Tear-em-Down, Cold-Cutter, or Sissy-Goat, one Treciziano, or Verdigris... or Hermogenes... o'them, pileload. If I could forget so many names... I'm not a man for calming horses! And, same, whom of yes of to be jagunço self enters, yea is for some competence entrant of demonion. Will it not? Will it? From first, I made and mixed, and to think not I thought. I didn't have the deadlines. I lived pulling difficult from difficult, fish alive on griddle: who lives asp'rously, no fantasies. But, now, fete of fate to me comes, and sans little disquietudes, I'm from creaky net. And myself invented in this like, of to speculate ideas. The devil exists and nonexists? I say the saying. Opennouncement. These melancholies. The Sir sees: exists waterfall; and since? But waterfall is gulch of ground, and water so pouring from it, retumbling; the Sir consume that water, or undo that bankment, remainder waterfall any? To live is negotiation much perilous. I explain to the Sir: the devil vigors inside of human, the wrinkles of human— or is the human ruin, or the human of adversess. I free, per se, citizen, is that not has devil notone. Notone!— is the that I say. The Sir approve? Me declares total, frank— is high merit that me make: and to beg might, increased. This case— by rashtravagance that me they see— is of mine certain importance. God grant not was... But, not say that the Sir, awised and instructed, that agrees in people of them?! Not? You I appreciate! Your high opinion composes my value. Yea I knew, waited for it— yea the field! Ah, a we, in oldness, we lack of to have plowing of rest. You I appreciate. Is devil notone. Nor esprit. Never I've seen. Someone ought to see, then was I myself, this your servant. Was I you to tell... Well, the devil regulate his state black, ins creatures, ins womens, ins humans. E'en: ins childrens— I declaim. Since not is said: "boy—trainee of the devil"? And ins thes uses, ins plants, ins waters, in terra, in wind... Manures. …The devil in the street, in the middle of the vortex... Hey? Hey? Ah. Figuration mine, of worse by back, the certain memories. Mal-make me! I suffer pain of to tell not…Meliorate, if chillingly: well, in a ground and with equal format of branches and leaves, not give to cassava-calm, that is eaten common, and the cassava-mad that kills? Now, the Sir yea saw a strangeness? A cassava-sweet can rapidly to turn agonizing— motives not I know, at times is said that is for replanted in the terrain always, with mutations then, of caules—go embittering, of s’much in s’much, of its self takes poisons. And, well look: the other, the cassava-mad, too is that at times can fix calm, the estimate, of is to eat sans notone mal. And what this is? Eh, the Sir yea saw, for to see, the ugliness of hate pleated, facetorqued, on the faces of one cobrarattlesnake? Observed the porker fat, capita day more felicity brute, capable of, could, snort and engulf for its own dirty coziness the world total? And sparrowhawk, blackbird, some, the features of they yea represent the need of cleave for before, rend and shred by beak, appears a knife much fine for ruin I desire. Total. Has even twisted races of stone, horrorous, venomous— that spoil mortal the aquas, if they are buried beneath of well; the devil inside of them sleeps: they are the devil. Is known? And the demon— that is only thus the significance of one mercury malign— have order of to follow the path of him, have license to brag?! Arr, he is variegated in all! What the what wastes, goes spending the devil of inside of the people, by itttybits, is the reasonable to suffer. And the delight of love—compadre mine Quelemem says. Family. Really? Is, and not is. The Sir think and not think. Total is and not is… Almost all more grave criminous ferocity, always is much good husband, good son, good father, and is good-friend-of-your-friends! I know of those. Solo that have the afters— and Deus, joined. I spy many nimbi. But, in veracity, son, too, softens. Look: one called Aleixo, resident a league from Step-of-Sour, in Of-Sand, was the man of major badness calm that yea you saw. Me agreed that near the house of his had a weir, amidst the palms, with traíras, for souls of enormous, desenormous, to the real, that received fame; the Aleixo gave of to eat to them, in hours just, they self accustomed to if assuch of lunacies, in order to gobble, seemed to be fishes instructed. One day, solo for grace rustic, he killed an oldman who by there passed, destitute begging alms. The Sir not doubt—have people, in this bored world, that kill solo in order to see someone make grimace… Eh, well, thereafter, the rest the Sir provide: comes the bread, comes the hand, comes the god, comes the dog. This Aleixo was man afamilied, had children small; they were the love of his, total, absurdity. Gave good, that not even a year there passed, of to killed the oldman poor, and the children of Aleixo there they asickened. Smallepidemic of measles, they said, but complex; they never heal. When, then, they healed. But the eyes of theirs vermillionized high in an inflame of spraining to rebellion; and nexthing— the that not I know is if they went of at once, or one later and later other and other— they remained blind. Blind, sans remission of one sweet of light of this Ours! The Sir imagine: stairset— three boys and one girl— all blind. Sans remediable. The Aleixo not lost the judgment, but he changed; ah, mutated complete— now lives of band of Deus, sweating to be good and charitous in all his hours of night and of day. Appears even that he fixed the felicity, that before not was. He himself says he was a man of luck, because Deus wanted to have pity of him, to transform for there the route of his soul. That I heard, and me it gave rage. Reason of the children. If being castigated, what culpa of the let-there-bes of Aleixo those little children had?! Compadre mine Quelemem reproved my uncertainties. That, for certain, inother life returnaound, the children too had been the most wicked, of the mass and part of the father, demons of the same kettle of place. Sir the what thinks? And the oldman, assassinated? — I know the Sir goes to discuss. Well, too. In order that he had a sin of crime, in the body, by to pay. If the people— conforming compadre mine Quelemem is who says— if the people turn to to incarnate renovated, I contemplate even that enemy of death can come as son of the enemy. Look see: if to myself I say, has a subject Pedro Pindo, neighbor of here more six leagues, man of good for all in all, he and the woman of his, always been good, of goodness. They have a son of some ten years called Valtei—name modern, is the that the population of here now appreciates, the Sir knows. Well this-little-thing, thislet, since that some understanding illuminated in him, deed demonstrated the that is: petition stepfather, acid burner, likeful of ruin of inside of the profundity of the species of its nature. In which that torments, to the slowly, of all beasts or raisinglings little that quarrel; one time he found a creole woman hooched foolish sleeping, he arranged a shard of bottle, lashed at three points on the stern of the legs of hers. The what this boy drooled seeing, is bleeding hen or to knife pig.— “I enjoy of to kill…”— one occasion he teeny me told. He opened in me a fright; because: birdy that self leans over— the flight yea is ready! Well the Sir oversee: the pa, Pedro Pindo, mode of to correct this, and the ma, they give in him, misery and mast—they cast the boy sans to eat, they tied to trees in the yard, he nude, unplumed, even in June cold, they tilled the bittybody of his with the trammel and with the goblet, after they cleansed the skin of the sanguine, with bottle gourd brine. The people know, spy, fix wasted. The boy yea relowered of thinness, the eyes entering, caress of bones, enskulled, and tuberculated, the time total hacking, coughness of the that draw parched pectorals. Arr, that now, visible, the Pindo and the woman self habituated of on him hit, of little bit in little they were creating in this a pleasure ugly of diversion— as they regulate the canings in hours certain comfortable, until they call people to see the example good. I think that boy not endure, yea there is in the ta-da, not arrive for the lent to come… Ooee-ooee, then?! Not being as compadre mine Quelemem to want, that explication is that the Sir bestowed? That boy had to be a man. He should, in swing, terrible perversities. Soul of his was in the pitch. Demonstrated. And, now, paid. Ah, but, happens, when he’s crying and paining, he suffers equal that as was as a boy good… Bird, I saw all, in this world! Yea I saw even horse with hiccups… —the that the thing most costous that is. Good, but the Sir may say, should of: and in the start— for offenses and arts, the people— as for that was that s’much amended was started? Ey, ey, ey all collided. Compadre mine Quelemem, too. Am solo a sertanite, in these high ideas I navigate mal. Am much poor poor-thing. Envy my pedigree and of ones conform the Sir, with total reading and doctoration. Not is that I be illiterate. I spelt, years and middle, midly speller, memory and palmer. I had master, Master Lucas, in the Curralinho, he memorized grammar, the operations, rule-of-three, even geography and study patria. On leaves great of paper, with caprice I traced handsome maps. Ah, not is for to speak: but, since of the start, me they thought sophisticated of side. And that I merited of to go to course latin, in Lesson Waterlily—that too they said. Time nostalgic! Going today, I appreciate a good book, despaced. On the farm The Lilittlelemon, of one mine friend Vito Soziano, so sign of this almanac thick, of logoglyphs and conundrums and other divided matters, all year come. In s’much, I place primacy is in the reading advantageous, life of saints, virtues and examples— missionary astute engambling the Indians, or Saint Francis of Assis, Saint Anthony, Saint Gerald… I like much of moral. To ratiocinate, exhort the others for the good way, to acounsel to just. Mine woman, that the Sir knows, vigils for me: much prayer. She is a blessable. Compadre mine Quelemem always says that I may to aquiet my fears on conscience, that being well-attended, terrible good-esprits me protect. Eep! With like… As is of saint effect, I help with mine to want to accredit. But not even always can I. The Sir knew: I total the mine life I thought for me, lining, I am born different. I am and I same. I divert of total the world… I almost that nothing not I know. But I disconfide of many things. The Sir, conceding, I say: in order to think long, I am dog master— the Sir loose in mine front an idea ease and I research that by profundity of total the backwoods, amen! Look: the should of to have, was of so reunited-selves the wise, politicos, constitutions graded, closed the definitive the notion— to proclaim for one time, art assemblies, that not have devil notone, not exists, not possible. Valor of law! Solo assuch, they gave tranquility good to the people. Because the government not cares?! Ah, I know that not is possible. Not me settled the Sir for philistine. One this is to place ideas arranged, other is to deal with country of people, of flesh and sanguine, of thousand-and-many miseries… S’many people—gives scare of to know—and notone so calms: All nascenting, crescendoing, so wedding, wanting collocation of employment, consumables, health, abundance, to be important, wanting rain and affairs good… Of luck that lacks of so to choose: or we t’weave of to live in the salacious common, or care solo of religion solo. I could to be: father clergyman, if not chief of jagunços; for other things not was I birthed. But mine oldness yea principaled I erred of total account. And the rheumatism… There as whom says: in the primers. Ahem. Hey? Hey? The that more I think, I testify and explain: all-the-world is mad. The Sir, I, we, the people all. For this is that so lacks principally of religion: in order to desendodorize, to disdodoate. Pray is that heals of lunacy. In the general. This is that is the salvation-of-the-soul…Much religion your servant! I here, not I lose occasion of religion. I profit of all. I drink water of all rivers… One solo, for me is little, maybe not me arrives. I pray christian, catholic, I burrow the certain; and I accept the prayers of compadre mine Quelemem, doctrine of he, of Kardec. But, when I can, I go in the Mindubim, where one Matias is believer, methodist: the people so accuse of sinner, reads high the bible, and why, singing hymns beautiful of his. Total me quiets, me suspends. Whatever small shade me refreshes. But is solo much provisory. I wanted to pray— the time total. Many people not me approve, they think that law of Deus is privileges, invariable. And I! Doof! I Detest! The what I am? — the what I do, that want, much curia. And in face of total I face, executed. I? —not I trammel. Look: I have a black girl, Maria Leoncia, long from here not she lives, the prayers of her afame much virtue of power. Well to her I pay, every month— ordering of to pray for me one third, every saint day, and, on the Sundays, a rosary. Value, so values. Mine woman not sees mal in this. And I am, yea mandated word for an other, of the voyage-voyage, a Izina Calanga, in order to come here, I heard of that prayer too with grand mermermerits, I go to effect with she treatment equal. I want handful of those, me defending in Deus, reunited of me in volta… Cuts of Christ! To live is much perilous… To want the good with too much force, of incertain way, can yea to be being so wanting the mal, per to initiate. These humans! All they pull the world for itself, for the to concert amended. But capita one solo sees and understands the things of one his world. Amountain, the most supro, most serious was Mediero Vaz. That one man ancient… his Joaozy Ben-Ben, the most brave of all, no-one never can decipher how he by inside consisted. Joca Ramiro— grand man prince!— was politico. Zé Bebelo wanted to be politico, but had and not had luck: fox that lingered. So Candelario so demonized, by to think that was with illness mal. Titao Passos was the by the appreciation of friends: solo per via of them, of his same amities, were that such high so ajagunçoed. Antonio Do— severe bandit. But by half, grand majority half that be. Andalecio, in the profound, a good man-of-good, being raving in his total justice. Ricardao, same, wanted was to be rich in peace: for this he warred. Solo the Hermogenes was that born formed tiger, and assassinite. And the “Ofidios White”? Ah, not me speak. Ah this… joyless mischeivious, that was— that was a poor boy of the destiny… So good, congruous. The Sir heard, I you told: the ruin with the ruin, they terminate by the spine-bushes so to crack— Deus awaits that spendance. Boy!: Deus is patience. The contrary, is the devil. So consumes. The Sir file knife on knife— and file— that so they scrape. Even the rocks of the profound, one of in the other, they go-so aroundabounding even, that the rivulet rolls. Per enquantity, that I think, total as hath, in this world, is because so merits and lacks. Afterly precise. Deus not so reports with rifle, not garrotes the regulation. For what? Quit: goof with goof—one day, some illumination and learn: smart. Solo that, at times, for most auxiliar, Deus begets, in the middle, a pinch of pepper… Therebe? Well, for example: some time, I went of train, there in Seven-Lagoons, for parts of to consult a medical, of name me indicated. He went vested well, and in car of first, by via of the doubts, not me they shadowed for jagunço ancient. It goes and happens, that, close same of me, enfront, he took aseat, returning from the wild North, a mac Jazevedao, delegate professionale. Came with a capanga of his, an undercover, and I well knew the two, of that s’much a was ruin, as the other ruin was. The veracity to say, first I had the strict of me to surpasss for one lonng, to mutate of my place. Judgement me told, meliorate stay. Well, looking, I looked. And— you I tell: never I saw face of man furnished of brutez or malady more, of the them in that. As that was ogre, trussed of thickset, relustered of crude in the eyes small, and armed a chin of stone, toweringbrow; not of mid nor forehead. Not laughed, not so laughed not even one time; but, speaking or silent, the people appeared always to him some teeth, prey pointed of canids. Arr, and blustered, an ittybit. Solo growled curt, low, the mid-words grizzled. He came relooking, historicizing the documents— one by one the leaves with portraits and with the blacks of the digits of jagunços, lifters of horses and criminouses of death. That application of work, in one thing of those, generated the ire in the people. The undercover, busybodyguard, total close, seated joined, attending, excelling of to be dog. Me made a dread, but solo in the goof of the corpus, not in the intern of the courages. One hour, one of those reports fell— and I bent quickly, I knew there precisely by why, not I wanted, not I thought— even today I raise shame of this— I picked the paper of the ground, and delivered to him. Thereof, I say: I had more rage, because I did that; but there yea it was done. The man not even me looked, not even said notone thankfulment. Event he soles of the shoes of his— solo looking— that soles rough thick, bent of enormous, appearing iron bronzed. Because I knew: This Jazevedao, when he apprehended someone, the primary quiet thing that proceeded was that he came entering, sans to have to to say, feigning some hurry, and go stepping on the top of the feet of the poorthings. And that on these occasions he gave laughters, gave… Well, geck! I delivered to him the leaf of paper, and went leaving of there, by to have hand on me of not to destroy by shots that subject. Meat that much they weigh… And umbilicated beginning of belly pot bellied, that me created will… With my lightness, joyful that I’d kill. But, the barbarities that this delegate made and happened, the Sir not even has callus in heart to be able me to hear. He achieved of many men and women to cry blood, for the simple universolo ours here. Sertão. The Sir knows: sertão is where mandates who is strong, with the guile. And bullet is a tidbit of metal… S’much, I say: Jazevedao— one assuch, should of to have, needed? Ah, need. Leather ruined is that calls goad of point. That there be that, after— business particular of he— in the life or in the other, each Jazevedao, accomplished the that he has, desclimbs in his time of pain, too, until to pay the that he gave— compadre mine Quelemem is there, in order to fiscalize. The Sir knows: the peril that is to live… But solo of the mode, of these, by ugly instrument, was that the jagunsaga so finished. Sir thinks that Antonio Do or Olivino Oliviano were going to fix goodies by pure spelling of itself, or by begging of the infelicitous, or by always to hear sermon of father? You I think! In the aims… Of jagunço comported active in order so to repent in the middle of his jagunsagas, solo I lay of one: called Joe Cazuzo— was in smashing of one shotshow, for on the summit of the place Sierra New, district of river rusted, on the stream Traçadal. We made mal minority small, and they closed in order summit of us the personnel of one Coronel Adalvino, forted politico, with many soldiers uniformed in the center, commanding of the Lieutenant Epiphany Helm, that after fixed captain. We lasted hour more hour, and yea gave almost of encircled. There, of misslip, that Joe Cazuzo— man much valiant— so kneeled turned on the ground of the thick, lifted the arms that not even shoots of Jatoba dry, and solo yell, howl clear and howl deaf:— “I saw the Virgin Ours, in the resplendor of the Heavens, with her children of angels!... ” He screamed not touched. — “I saw the Virgin!... ” He ensouled? We desequaled. Bolt for my horse—that I thought— I leaped in mal seat, noteven I knew in which rupture-time I unfastened the halter, of tied up it foot of timber. I flew, arrived. Bullet come. The pasture roared. In the brush, the fear of the people so goes to the whole, one fear intentional. I could to lash out, fated burro brute, giv-that, giv-that. Some two or three bullets so drovein the pad of the mine saddle, they perforated of to tear away almost much the kapok of the filling. Horse trembled in pro, in middle of gallop, I know: thinks in the owner. I not fit of to be more well shrunken. Bulleted came to the sack that I had on the back, with few mine things. And other, of fusil, in ricochet decreed, heated my thigh, sans me wound, the Sir see: bullet does the what to want—so pierced impressed, between in me and the harness! Times crazy… Burumbum!: the horse so kneeled in the fall, dead perhaps, and I yea falling for front, embraced in foliage full, branched and linias, that me swayed and skewered, done I was pendulating in web of spider… Whither? I traversed that life total… Of fear of anxiety, I ruptured to read with mine corpus that forest, I know there — and me fell world below, rolled for the hollow of a grotto closed of shrubs, always me grasped— rolled same assuch: after: after, when I saw mine hands, total on they that not was withdrawn sanguine, was smeared green, on the digits, of leaves living that I pulled and mashed… I landed on the sedge of the profound— and a beast dark gave a releap, with a sneeze, too mad of fright: that was a papa-mel, that I descried; in order to flee, this is solely. Bigger being I, me doused mine overcoat; I spigotted total. And of one bit of thought: if that beast irara lying there then there not had cobra. I took the place of his. Existed cobra notone. I could me to lose. I was solo spineless, softness, but that not deadened, inside, the collisions of the heart. I gasped. I conceived that they came, me kill. Not even did mal, me mattered not. Assuch, some moments, at least I guarded the license of term in order me to rest. Conforming I thought in Diadorim. Solo I thought was in he. One joão-congo sang. I wanted to die thinking in my friend Diadorim, hand-o-bro, who was on the Sierra of WoodO’Bow, almost on the border baiana, with our other half of the so-candelarios… With my friend Diadorim me embraced, sentiment my went-flew right for he… Ay, arr, but: that this mine mouth not has order notone. I am accounting outside, things divagated. In the Sir me confide? Til-that, til-that. Say the angel-of-the-guard… But, conforming I came: after so knew, that same the soldiers of the Lieutenant and the goats of Coronel Adalvino remitted of to respect the blast of that Joe Cazuzo. And that this ended being the man most pacificious of the world, fabricator of oil and sacristan, in the Saint Sundays White. Times! For total, cleaned revelation, I fix thinking. I like. Meliorate, for the idea if well to open, is travelling in train-of-iron. Could, lived to top and to bottom, inside of it. Information that I ask: same in the Heavens, end of end, how is that the soul wins so to forget s’much sufferments and maladies, in the received and in the given? The how? The Sir knows: are things of hideous ofmuch, have. Pain of corpus and pain of idea mark forted, that forted as the total love and rage of hate. Goes, sea… Of luck that, then, the Firmiano, by appellationed Louse-of-Snake, so leoprosized with the leg disconformed, thickening, of that disease that not so cures; and not discern almost more, constant the branchials in the eyes, of the cataracts. Of before, years, had to of so disarray of the jagunsaga. Well, one occasion, some was on the ranch of his, on the High Jeuitai, after accounted—that, turns time, comes subject, he would say: “Me give yearning is of to seize a soldier, and such, for one good flay, with knife blind… But, first, to castrate…” The Sir conceive? Who has more dose of demon in self is Indian, any race of brusque. Folk see nation ofthese, for there profound of the generals of Goias, theofwhere has vagarous grand rivers, of aquas always so clear pleasantly, running of down crystal rosed… Louse-of-Snake gave of sanguine of heathen. Sir me will say: but that he pronounced that out of mouth, manner of to represent that yet not was old decadent. Opus of to oppose, for fear of to be tame, and cause in order so to see respected. Total listened for such rule: palavered of ruins, for more so valued, because we to the environs is hard durability. The worst, but, is that they finish, through the same ford, given of one day to execute the declared, in the real. I saw s’much crudity! Pain not pays to account; if I go, I collide. And me dedrip, three that me sicken, this total. Me convokes that the personnel, today in day, is good of heart. This is, good in the trivial. Malices wildwants, and perversities, always have some, but scarcities. Generation mine, true, was not assuch. Ah, goes to turn a time, in which not is used more to kill people… I yea am old. Good, I was saying: question, this that me excavates… Ah, I formed that question, for compadre mine Quelemem. That me responded: that, for close to heaven, we so amplified so, that total the uglies past so exhaled of not to be—fated sans-modus from time of youngster, mal-arts. As we not lack of to have remorse of the which divulged in the pulsation of his nightmares of one night. Assuch that: fleeced-so, flourished-so! Ahem. For this said, is that the journey to the Heavens is delayed. I confide with compadre mine Quelemem, the Sir knows: reason of creed same that has—that, for total the mal, that so does, one day so repays, the exact. Subject assuch rises three times, in ante of to want to facilitate in any minutia reprehensible… Compadre mine Quelemem never speaks vacant, not subtreats. Solo that this to he not I go to expose. We never should have to declare that accept entire the alien—that is what is the rule of the king! The Sir look…see: the most important and beautiful, of the world, is this: that the people are not always same, still were not completed — but that they go always shifting. They tune or detune. Truth major. Is the that the life me taught. This that me animates, mound. And, other thing: the devil and the brutes; but Deus is treacherous! Ah, a beauty of treacherous— gives like! The force of his, when he wants— boy!— me gives the fear dread! Deus comes coming: no one not sees. He does in the law of gentle— assuch is the miracle. And Deus attacks beautiful, so amusing, so economizes. The well: one day in a tannery, the little knife mine I had dropped inside of a tank, solo soup of bark of tan, stryphnodendron adstringens, angico, there I know. —“Tomorrow I try…”— I said, withmyself. Because it was of night, light notone I not disputed. Ah, then, I found: on the other day, early, the knife, the iron of it, had been gnawed, almost by half, by that aqua dark, total quiet. I left, for more to see. Crack, fuse! Know the what was? Well, in that same of afternoon, there: of the little knife solo so found the handle… The handle, for not to be of cold metal, but of horn of deer. There is: Deus… Good, the Sir heard knows, the that knows me understands… We sum, not think that religion fractures. Sir think the contrary. Visible that, those other times, I painted—belief that the neoglaziovia variegata lifts the flower. Ah, good my joy… Boyhood. But boyhood is task for more later so to deny. Too, I of that of to think in vague in s’much, lost mine hand-of-man for the management hot, in the middle of all. But, today, that I ratiocinated, and think the endeavor, not nor for this not I give for low my competence, in a fire-and-iron. The to see. Would approach would come here with war on me, with bad parts, with other laws, or with excessive looks, and I even draw to ignite this zone, ay, if, if! Is in the mouth of the blunderbuss: is in the rete-te-tem… And lonelyonly not I am, there-of-the. For not this, I was I placed encircle my mine people. Look the Sir: here, close, vereda below, the Paspe — cropper my — is mine. More league, if that, have the Herpetotheres, and have the compadre Ciril, him and three children, I know that they serve. Band of that hand, the Alaripe: knew the Sir the that is that so boasts, in rifleation and by the knife, one cearense did this! After more: the João Innatal, the Quipes, Lophiosilurus-of-claws. And the Fafafa— this gave fights high, all side with me, in the combat old of the Anteater-such: we cleaned the wind of whom not had order of to respirate, and ante these we desencompassed… The Fafafa has a mass of mares. He raises horses good. Even a little more distant, on the ped-of-sierra, of band mine was the Sesfred, Jesualdo, the Nelson, and João Concliz. Some others. The Triol… And not I go valuing? I leave terra with them, of theirs the what is mine is, we close that we not even brothers. For what I want to gather richness? They are there, of arms aireated. Enemy to come, we cross called, gathering: is hour of one good shotshowerment in peace, they exp’riment to see. I say this to the Sir, of confidence. Too, not go to think in double. We want is to work, propose tranquility. Of me, person, I live for mine woman, that total mode-meliorate merits, and for the devotion. Well-to want of mine woman was that me assisted, prayers of hers, graces. Love comes of love. I say. In Diadorim, I think too— but Diadorim is the mine nebulina… Now, well: not I wanted to touch on this more— of the Tineaous; arrive. But has a nevertheless: I ask: the Sir believe, think trust of truth in that parlance, of with the demon so to able to deal with pact? No, no is no? I knew that not there. I spoke of favas. But I like of total good confirmation. To vend you proper soul… Inventionate false! And, soul, the what is? Soul of has to be thing internal supremed, much more of the of inside, and is solo, of the that one if thought: ah, soul sheer! Decision of to vend soul is fearless moll, fantasied of moment, has not the obedience legal. Can I to vend those good terras, thereof of between the Veredas-Four— that are of one Mr. Admiral, who resides in the capital federal? Can I some? Then, if one boy boy is, and for this not so authorizes of to negotiate… And we, this I know, at times is solo fated boy. Mal that in mine life I prepared, I was in a certain infancy in dreams — total runs and arrives so swift —; will be that if hath flame of responsibilities? If dream; yea so did… I gave rapadura to the chump! Ahem. Well. If his soul, and has, it is of Deus established, not even that the person want or not want. Not is vendible. The Sir not thinks? Me declare, frank, I beg. Ah, you I appreciate. You so see that the Sir knows much, in idea firm, beyond of to have letter of doctor. You I appreciate, for much. Your company me gives high pleasures. In terms, I liked that I would live here, or close, was a help. Here not so has conviviation that to instruct. Sertão. Knows the Sir: sertão is where the thought of the people so forms more forted of the than power of the place. To live is much perilous… Eh, that you so go? Yeayea? Is that not. Today, no. Tomorrow, no. Not I consense. The Sir me forgive, but in endeavor of mine friendship accept: the Sir stay. After fifth of-morning-early, the Sir wanting to go, then goes, same me leaves feeling your absence. But, today or tomorrow, no. Visit, here in house, with me, is for three days! But, the Sir really intends to trespass the field this sea of territotires, for sortment of to confer the what exists? You have your motives. Now— I say for me — the Sir comes, came late, Times were, the customs mutate. Almost that, of legitimate loyal, little surplus, not even no excess more nothing. The bands good of valientoughs they reparted their end; many who were jagunço, by ouch pain, beg alms. Same as the herdsmen they doubt of to come in the commerce vested of clothes entire of leather, they think that garb of jerkin is ugly and boor. And even the herd in the shrubbed pasture goes waning less mad, more educated: casted of zebu, dissee with the rest of corralers and captiveborns. Always, in the generals is to the poverty, to the sadness. A sadness that even gladdens. But, then, for a crop reasonable of bizzarancies, I recounsel of the Sir to entest journey more dilated. Not were my desmight, by acids and rheumatism, there I went. I guided the Sir till total. March 2013 San Diego, CA ORIGINAL TEXT NONADA. TIROS QUE O SENHOR ouviu foram de briga de homem não, Deus esteja. Alvejei mira em árvores no quintal, no baixo do córrego. Por meu acerto. Todo dia isso faço, gosto; desde mal em minha mocidade. Daí, vieram me chamar. Causa dumbezerro: um bezerro branco, erroso, os olhos de nem ser – se viu –; e com máscara de cachorro. Me disseram; eu não quis avistar. Mesmo que, por defeito como nasceu, arrebitado de beiços, esse figurava rindo feito pessoa. Cara de gente, cara de cão: determinaram – era o demo. Povo prascóvio. Mataram. Dono dele nem sei quem for. Vieram emprestar minhas armas, cedi. Não tenho abusões. O senhor ri certas risadas... Olhe: quando é tiro de verdade, primeiro a cachorrada pega a latir, instantaneamente – depois, então, se vai ver se deu mortos. O senhor tolere, isto é o sertão. Uns querem que não seja: que situado sertão é por os campos-gerais a fora a dentro, eles dizem, fim de rumo, terras altas, demais do Urucuia. Toleima. Para os de Corinto e do Curvelo, então, o aqui não é dito sertão? Ah, que tem maior! Lugar sertão se divulga: é onde os pastos carecem de fechos; onde um pode torar dez, quinze léguas, sem topar com casa de morador; e onde criminoso vive seu cristo-jesus, arredado do arrocho de autoridade. O Urucuia vem dos montões oestes. Mas, hoje, que na beira dele, tudo dá – fazendões de fazendas, almargem de vargens de bom render, as vazantes; culturas que vão de mata em mata, madeiras de grossura, até ainda virgens dessas lá há. O gerais corre em volta. Esses gerais são sem tamanho. Enfim, cada um o que quer aprova, o senhor sabe: pão ou pães, é questão de opiniães... O sertão está em toda a parte. Do demo? Não gloso. Senhor pergunte aos moradores. Em falso receio, desfalam no nome dele – dizem só: o Que-Diga. Vote! não... Quem muito se evita, se convive. Sentença num Aristides – o que existe no buritizal primeiro desta minha mão direita, chamado a Vereda-da-Vaca-Mansa-deSanta-Rita – todo o mundo crê: ele não pode passar em três lugares, designados: porque então a gente escuta um chorinho, atrás, e uma vozinha que avisando: – “Eu já vou! Eu já vou!...” – que é o capiroto, o que-diga... E um José Simpilício – quem qualquer daqui jura ele tem um capeta em casa, miúdo satanazim, preso obrigado a ajudar em toda ganância que executa; razão que o Simpilício se empresa em vias de completar de rico. Apre, por isso dizem também que a besta pra ele rupeia, nega de banda, não deixando, quando ele quer amontar... Superstição. José Simpilício e Aristides, mesmo estão se engordando, de assim nãoouvir ou ouvir. Ainda o senhor estude: agora mesmo, nestes dias de época, tem gente porfalando que o Diabo próprio parou, de passagem, no Andrequicé. Um Moço de fora, teria aparecido, e lá se louvou que, para aqui vir – normal, a cavalo, dum dia-e-meio – ele era capaz que só com uns vinte minutos bastava... porque costeava o Rio do Chico pelas cabeceiras! Ou, também, quem sabe – sem ofensas – não terá sido, por um exemplo, até mesmo o senhor quem se anunciou assim, quando passou por lá, por prazido divertimento engraçado? Há-de, não me dê crime, sei que não foi. E mal eu não quis. Só que uma pergunta, em hora, às vezes, clareia razão de paz. Mas, o senhor entenda: o tal moço, se há, quis mangar. Pois, hem, que, despontar o Rio pelas nascentes, será a mesma coisa que um se redobrar nos internos deste nosso Estado nosso, custante viagem de uns três meses... Então? Que-Diga? Doideira. A fantasiação. E, o respeito de dar a ele assim esses nomes de rebuço, é que é mesmo um querer invocar que ele forme forma, com as presenças! Não seja. Eu, pessoalmente, quase que já perdi nele a crença, mercês a Deus; é o que ao senhor lhe digo, à puridade. Sei que é bem estabelecido, que grassa nos Santos- Evangelhos. Em ocasião, conversei com um rapaz seminarista, muito condizente, conferindo no livro de rezas e revestido de paramenta, com uma vara de maria-preta na mão – proseou que ia adjutorar o padre, para extraírem o Cujo, do corpo vivo de uma velha, na Cachoeira-dos-Bois, ele ia com o vigário do Campo-Redondo... Me concebo. O senhor não é como eu? Não acreditei patavim. Compadre meu Quelemém descreve que o que revela efeito são os baixos espíritos descarnados, de terceira, fuzuando nas piores trevas e com ânsias de se travarem com os viventes – dão encosto. Compadre meu Quelemém é quem muito me consola – Quelemém de Góis. Mas ele tem de morar longe daqui, na Jijujã, Vereda do Buriti Pardo... Arres, me deixe lá, que – em endemoninhamento ou com encosto – o senhor mesmo deverá de ter conhecido diversos, homens, mulheres. Pois não sim? Por mim, tantos vi, que aprendi. Rincha- Mãe, Sangued’Outro, o Muitos-Beiços, o Rasgaem-Baixo, Faca-Fria, o Fancho-Bode, um Treciziano, o Azinhavre... o Hermógenes... Deles, punhadão. Se eu pudesse esquecer tantos nomes... Não sou amansador de cavalos! E, mesmo, quem de si de ser jagunço se entrete, já é por alguma competência entrante do demônio. Será não? Será? De primeiro, eu fazia e mexia, e pensar não pensava. Não possuía os prazos. Vivi puxando difícil de dificel, peixe vivo no moquém: quem mói no asp’ro, não fantaseia. Mas, agora, feita a folga que me vem, e sem pequenos dessossegos, estou de range rede. E me inventei neste gosto, de especular idéia. O diabo existe e não existe? Dou o dito. Abrenúncio. Essas melancolias. O senhor vê: existe cachoeira; e pois? Mas cachoeira é barranco de chão, e água se caindo por ele, retombando; o senhor consome essa água, ou desfaz o barranco, sobra cachoeira alguma? Viver é negócio muito perigoso... Explico ao senhor: o diabo vige dentro do homem, os crespos do homem – ou é o homem arruinado, ou o homem dos avessos. Solto, por si, cidadão, é que não tem diabo nenhum. Nenhum! – é o que digo. O senhor aprova? Me declare tudo, franco – é alta mercê que me faz: e pedir posso, encarecido. Este caso – por estúrdio que me vejam – é de minha certa importância. Tomara não fosse... Mas, não diga que o senhor, assisado e instruído, que acredita na pessoa dele?! Não? Lhe agradeço! Sua alta opinião compõe minha valia. Já sabia, esperava por ela-já o campo! Ah, a gente, na velhice, carece de ter sua aragem de descanso. Lhe agradeço. Tem diabo nenhum. Nem espírito. Nunca vi. Alguém devia de ver, então era eu mesmo, este vosso servidor. Fosse lhe contar... Bem, o diabo regula seu estado preto, nas criaturas, nas mulheres, nos homens. Até: nas crianças – eu digo. Pois não é ditado: “menino – trem do diabo”? E nos usos, nas plantas, nas águas, na terra, no vento... Estrumes. ... O diabo na rua, no meio do redemunho... Hem? Hem? Ah. Figuração minha, de pior pra trás, as certas lembranças. Mal hajame! Sofro pena de contar não... Melhor, se arrepare: pois, num chão, e com igual formato de ramos e folhas, não dá a mandioca mansa, que se come comum, e a mandioca-brava, que mata? Agora, o senhor já viu uma estranhez? A mandioca-doce pode de repente virar azangada – motivos não sei; às vezes se diz que é por replantada no terreno sempre, com mudas seguidas, de manaíbas – vai em amargando, de tanto em tanto, de si mesma toma peçonhas. E, ora veja: a outra, a mandiocabrava, também é que às vezes pode ficar mansa, a esmo, de se comer sem nenhum mal. E que isso é? Eh, o senhor já viu, por ver, a feiúra de ódio franzido, carantonho, nas faces duma cobra cascavel? Observou o porco gordo, cada dia mais feliz bruto, capaz de, pudesse, roncar e engolir por sua suja comodidade o mundo todo? E gavião, corvo, alguns, as feições deles já representam a precisão de talhar para adiante, rasgar e estraçalhar a bico, parece uma quicé muito afiada por ruim desejo. Tudo. Tem até tortas raças de pedras, horrorosas, venenosas – que estragam mortal a água, se estão jazendo em fundo de poço; o diabo dentro delas dorme: são o demo. Se sabe? E o demo – que é só assim o significado dum azougue maligno – tem ordem de seguir o caminho dele, tem licença para campear?! Arre, ele está misturado em tudo. Que o que gasta, vai gastando o diabo de dentro da gente, aos pouquinhos, é o razoável sofrer. E a alegria de amor – compadre meu Quelemém, diz. Família. Deveras? É, e não é. O senhor ache e não ache. Tudo é e não é... Quase todo mais grave criminoso feroz, sempre é muito bom marido, bom filho, bom pai, e é bom amigo-de-seus-amigos! Sei desses. Só que tem os depois – e Deus, junto. Vi muitas nuvens. Mas, em verdade, filho, também, abranda. Olhe: um chamado Aleixo, residente a légua do Passo do Pubo, no da-Areia, era o homem de maiores ruindades calmas que já se viu. Me agradou que perto da casa dele tinha um açudinho, entre as palmeiras, com traíras, pra-almas de enormes, desenormes, ao real, que receberam fama; o Aleixo dava de comer a elas, em horas justas, elas se acostumaram a se assim das locas, para papar, semelhavam ser peixes ensinados. Um dia, só por graça rústica, ele matou um velhinho que por lá passou, desvalido rogando esmola. O senhor não duvide – tem gente, neste aborrecido mundo, que matam só para ver alguém fazer careta... Eh, pois, empós, o resto o senhor prove: vem o pão, vem a mão, vem o são, vem o cão. Esse Aleixo era homem afamilhado, tinha filhos pequenos; aqueles eram o amor dele, todo, despropósito. Dê bem, que não nem um ano estava passado, de se matar o velhinho pobre, e os meninos do Aleixo aí adoeceram. Andaço de sarampão, se disse, mas complicado; eles nunca saravam. Quando, então, sararam. Mas os olhos deles vermelhavam altos, numa inflama de sapiranga à rebelde; e susseguinte – o que não sei é se foram todos duma vez, ou um logo e logo outro e outro – eles restaram cegos. Cegos, sem remissão dum favinho de luz dessa nossa! O senhor imagine: uma escadinha – três meninos e uma menina – todos cegados. Sem remediável. O Aleixo não perdeu o juizo; mas mudou: ah, demudou completo – agora vive da banda de Deus, suando para ser bom e caridoso em todas suas horas da noite e do dia. Parece até que ficou o feliz, que antes não era. Ele mesmo diz que foi um homem de sorte, porque Deus quis ter pena dele, transformar para lá o rumo de sua alma. Isso eu ouvi, e me deu raiva. Razão das crianças. Se sendo castigo, que culpa das hajas do Aleixo aqueles meninozinhos tinham?! Compadre meu Quelemém reprovou minhas incertezas. Que, por certo, noutra vida revirada, os meninos também tinham sido os mais malvados, da massa e peça do pai, demônios do mesmo caldeirão de lugar. Senhor o que acha? E o velhinho assassinado? – eu sei que o senhor vai discutir. Pois, também. Em ordem que ele tinha um pecado de crime, no corpo, por pagar. Se a gente – conforme compadre meu Quelemém é quem diz – se a gente torna a encarnar renovado, eu cismo até que inimigo de morte pode vir como filho do inimigo. Mire veja: se me digo, tem um sujeito Pedro Pindó, vizinho daqui mais seis léguas, homem de bem por tudo em tudo, ele e a mulher dele, sempre sidos bons, de bem. Eles têm um filho duns dez anos, chamado Valtei – nome moderno, é o que o povo daqui agora apreceia, o senhor sabe. Pois essezinho, essezim, desde que algum entendimento alumiou nele, feito mostrou o que é: pedido madrasto, azedo queimador, gostoso de ruim de dentro do fundo das espécies de sua natureza. Em qual que judia, ao devagar, de todo bicho ou criaçãozinha pequena que pega; uma vez, encontrou uma crioula bentabêbada dormindo, arranjou um caco de garrafa, lanhou em três pontos a popa da perna dela. O que esse menino babeja vendo, é sangrarem galinha ou esfaquear porco. – “Eu gosto de matar...” – uma ocasião ele pequenino me disse. Abriu em mim um susto; porque: passarinho que se debruça – o vôo já está pronto! Pois, o senhor vigie: o pai, Pedro Pindó, modo de corrigir isso, e a mãe, dão nele, de miséria e mastro – botam o menino sem comer, amarram em árvores no terreiro, ele nu nuelo, mesmo em junho frio, lavram o corpinho dele na peia e na taca, depois limpam a pele do sangue, com cuia de salmoura. A gente sabe, espia, fica gasturado. O menino já rebaixou de magreza, os olhos entrando, carinha de ossos, encaveirada, e entisicou, o tempo todo tosse, tossura da que puxa secos peitos. Arre, que agora, visível, o Pindó e a mulher se habituaram de nele bater, de pouquinho em pouquim foram criando nisso um prazer feio de diversão – como regulam as sovas em horas certas confortáveis, até chamam gente para ver o exemplo bom. Acho que esse menino não dura, já está no blimbilim, não chega para a quaresma que vem... Uê-uê, então?!Não sendo como compadre meu Quelemém quer, que explicação é que o senhor dava? Aquele menino tinha sido homem. Devia, em balanço, terríveis perversidades. Alma dele estava no breu. Mostrava. E, agora, pagava. Ah, mas, acontece, quando está chorando e penando, ele sofre igual que se fosse um menino bonzinho... Ave, vi de tudo, neste mundo! lá vi até cavalo com soluço... – o que é a coisa mais custosa que há. Bem, mas o senhor dirá, deve de: e no começo – para pecados e artes, as pessoas – como por que foi que tanto emendado se começou? Ei, ei, aí todos esbarram. Compadre meu Quelemém, também. Sou só um sertanejo, nessas altas idéias navego mal. Sou muito pobre coitado. Inveja minha pura é de uns conforme o senhor, com toda leitura e suma doutoração. Não é que eu esteja analfabeto. Soletrei, anos e meio, meante cartilha, memória e palmatória. Tive mestre, Mestre Lucas, no Curralinho, decorei gramática, as operações, regra-de-três, até geografia e estudo pátrio. Em folhas grandes de papel, com capricho tracei bonitos mapas. Ah, não é por falar: mas, desde o começo, me achavam sofismado de ladino. E que eu merecia de ir para cursar latim, em Aula Régia – que também diziam. Tempo saudoso! Inda hoje, apreceio um bom livro, despaçado. Na fazenda O Limãozinho, de um meu amigo Vito Soziano, se assina desse almanaque grosso, de logogrifos e charadas e outras divididas matérias, todo ano vem. Em tanto, ponho primazia é na leitura proveitosa, vida de santo, virtudes e exemplos – missionário esperto engambelando os índios, ou São Francisco de Assis, Santo Antônio, São Geraldo... Eu gosto muito de moral. Raciocinar, exortar os outros para o bom caminho, aconselhar a justo. Minha mulher, que o senhor sabe, zela por mim: muito reza. Ela é uma abençoável. Compadre meu Quelemém sempre diz que eu posso aquietar meu temer de consciência, que sendo bem-assistido, terríveis bons-espíritos me protegem. Ipe! Com gosto... Como é de são efeito, ajudo com meu querer acreditar. Mas nem sempre posso. O senhor saiba: eu toda a minha vida pensei por mim, forro, sou nascido diferente. Eu sou é eu mesmo. Diverjo de todo o mundo... Eu quase que nada não sei. Mas desconfio de muita coisa. O senhor concedendo, eu digo: para pensar longe, sou cão mestre – o senhor solte em minha frente uma idéia ligeira, e eu rastreio essa por fundo de todos os matos, amém! Olhe: o que devia de haver, era de se reunirem-se os sábios, políticos, constituições gradas, fecharem o definitivo a noção – proclamar por uma vez, artes assembléias, que não tem diabo nenhum, não existe, não pode. Valor de lei! Só assim, davam tranqüilidade boa à gente. Por que o Governo não cuida?! Ah, eu sei que não é possível. Não me assente o senhor por beócio. Uma coisa é pôr idéias arranjadas, outra é lidar com país de pessoas, de carne e sangue, de mil-e-tantas misérias... Tanta gente – dá susto de saber – e nenhum se sossega: todos nascendo, crescendo, se casando, querendo colocação de emprego, comida, saúde, riqueza, ser importante, querendo chuva e negócios bons... De sorte que carece de se escolher: ou a gente se tece de viver no safado comum, ou cuida só de religião só. Eu podia ser: padre sacerdote, se não chefe de jagunços; para outras coisas não fui parido. Mas minha velhice já principiou, errei de toda conta. E o reumatismo... Lá como quem diz: nas escorvas. Ahã. Hem? Hem? O que mais penso, testo e explico: todo-omundo é louco. O senhor, eu, nós, as pessoas todas. Por isso é que se carece principalmente de religião: para se desendoidecer, desdoidar. Reza é que sara da loucura. No geral. Isso é que é a salvaçãoda- alma... Muita religião, seu moço! Eu cá, não perco ocasião de religião. Aproveito de todas. Bebo água de todo rio... Uma só, para mim é pouca, talvez não me chegue. Rezo cristão, católico, embrenho a certo; e aceito as preces de compadre meu Quelemém, doutrina dele, de Cardéque. Mas, quando posso, vou no Mindubim, onde um Matias é crente, metodista: a gente se acusa de pecador, lê alto a Bíblia, e ora, cantando hinos belos deles. Tudo me quieta, me suspende. Qualquer sombrinha me refresca. Mas é só muito provisório. Eu queria rezar – o tempo todo. Muita gente não me aprova, acham que lei de Deus é privilégios, invariável. E eu! Bofe! Detesto! O que sou? – o que faço, que quero, muito curial. E em cara de todos faço, executado. Eu não tresmalho! Olhe: tem uma preta, Maria Leôncia, longe daqui não mora, as rezas dela afamam muita virtude de poder. Pois a ela pago, todo mês – encomenda de rezar por mim um terço, todo santo dia, e, nos domingos, um rosário. Vale, se vale. Minha mulher não vê mal nisso. E estou, já mandei recado para uma outra, do Vau-Vau, uma Izina Calanga, para vir aqui, ouvi de que reza também com grandes meremerências, vou efetuar com ela trato igual. Quero punhado dessas, me defendendo em Deus, reunidas de mim em volta... Chagas de Cristo! Viver é muito perigoso... Querer o bem com demais força, de incerto jeito, pode já estar sendo se querendo o mal, por principiar. Esses homens! Todos puxavam o mundo para si, para o concertar consertado. Mas cada um só vê e entende as coisas dum seu modo. Montante, o mais supro, mais sério – foi Medeiro Vaz. Que um homem antigo... Seu Joãozinho Bem-Bem, o mais bravo de todos, ninguém nunca pôde decifrar como ele por dentro consistia. Joca Ramiro – grande homem príncipe! – era político. Zé- Bebelo quis ser político. (shrink)

A branch of political philosophy treats human rights as the output of democratic deliberations by a certain kind of polity. This school, represented by theorists like Benhabib and Besson, do not see detailed human rights as constraints on legitimacy but rather as the specification of abstract human rights (such as the "right to have rights") in terms of obligations and the distribution of burdens. This paper argues that the position is untenable as the notion (...) of democratic decision-making depends on sufficiently clear and specified human rights standards and the political respect they guarantee. Furthermore, the form that any democratic deliberation will take must express respect and reasonableness towards both rights recipients and burden-bearers. To do so, a clear sense of human rights must exist as a threshold, as must standards of societal justice and fairness. Human rights must come first, as a background condition of democracy. (shrink)

continent. 2.1 (2012): 29–35. Translated by Vincent W.J. van Gerven Oei from Jeroen Mettes. "Politieke Poëzie: Enige aantekeningen, Poëtica bij N30 (versie 2006)." In Weerstandbeleid: Nieuwe kritiek . Amsterdam: De wereldbibliotheek, 2011. Published with permission of Uitgeverij Wereldbibliotheek, Amsterdam. L’égalité veut d’autres lois . —Eugène Pottier The modern poem does not have form but consistency (that is sensed), no content but a problem (that is developed). Consistency + problem = composition. The problem of modern poetry is capitalism. Capitalism—which has no (...) image: the unrepresentable Idea of “everything.” The problem is that a poem cannot be justified. There is no excuse for it. Political poetry— pure poetry—has to be problematic, though not in a mannerist way. Yes, its problem is first its own problem—poetry’s existence in the same world as the newspaper—but therefore also always everybody’s problem (the problem of any world at all). The cult of the sublime points at a suspect desire for transcendence, nostalgia for paradise lost (the womb?). Melancholia of the post-. But a problem neither sorrows nor mourns, it is alive, and the fact that it is alive is the problem—the problem for death (rigidity, the status quo). Our symbols and ideologies do not hide any god: symbolic = state; imaginary = human; real = money. Problem: the possibility of communal speech (poetry) in the absence of a “we.” Or: what is a “we” that is not a collective subject (or in any case is not a volonté générale )? What is a universal history that is not a History? This work was started in the shade of the anti-globalization protests at the end of November 1999. I considered N30 to be the closure of the nineties, of my adolescence, and of the a seemingly total extinction of social desire. From the beginning I was skeptical about the alterglobalization movement as the avant-garde of a new politics, but something was happening . Maybe this event did not show that, as the slogan would have it, “another world” is possible, but for me it indicated that such possibility was at least still possible. That naked possibility is carrying forward. And if the fundamental tone of this work sounds more desperate than utopian, this is not caused by the catastrophic sequence that since 1999 has plunged us ever deeper into the right-wing nightmare—a nightmare that this work also gives an account for—but because my hope as yet remains empty. Composition . Composition is no design, but the production of an autonomous block of affects (i.e. a POEM), rhythmically subtracted from the language of a community. A poem does something. Is something. New Sentence . Choosing the non sequitur as compositional unit has the advantage that an abstract composition is subjected to the stress of concrete, social references. Where there is a sentence, there is always a world. (This does not hold necessarily for words on their own.) And where sentences collide, something akin to a textual civil war takes place. It is not about “undermining” whatever, or de-scribing the raging global civil war, but about writing social (or even: ontological) antagonism -- including all its catastrophic and utopian possibilities. Minor resistance. Why would poetry be the no protest zone par excellence? It is nothing but protest, not simply qua “content,” but in its most fundamental essence: rhythm. Rhythm is resistance against language, time, and space, and the basis of (what we will continue to call) autonomy. Rhythm starts with the anti-rhythmic caesura as Hölderlin remarked about Sophocles, a disruption of the quotidian drone. The destruction of everything that is dead inside of us. The noise of the avant-garde has never been the representation of the noise of (post)modernity (from the television or shopping mall), but the sober noise of the systematic exchange of an unbearable worldview. The poet does not describe, but looks for a way out: There is a Grain of Sand in Lambeth that Satan cannot find Nor can his Watch Fiends find it, tis translucent & has many Angles But he who finds it will find Oothoons palace, for within Opening into Beulah every angle is a lovely heaven William Blake was not mad. And there has always been only one poetry: the poetry of paradise. The principle is that there is something in art (the essentially creative element) that is disgusted by that which, unlike art, does not aim for the supreme. Wonder is not supreme, tranquility is not supreme, beauty is not supreme. Even amusement is not supreme! The supreme is supremely open, “das Einfache,/ Das Schwer zu machen ist” 1 : paradise. That is abstract. Literally. For me it is not about a concrete imagination, an idyll or utopia. There is no doubt a need for that, but it is not so much the supposed lack of imagination or ideals (human rights are ideals), but a fundamental lack of desire (human rights are no desires) that we suffer from, and from which we do not need to remove Nietzsche’s label of “nihilism.” “We.” George Oppen: “ Of Being Numerous asks the question whether or not we can deal with humanity as something which actually exists.” What is less actual than humanity? Nowadays it appears as a lifeless ideology of cynical power politics. Or as what makes one think. It is a shame to be human. The event is the caesura that defines rhythm. Writing toward the event is not the description of the event, but marking an abstract and intense space in which the event may unfold and keep itself. It is a task. “Remember that thou blesseth the day on which I seized thee, because such is thy obligation.” The event is a contraction (or a series of contractions) with its own rhythm and unique qualities. It is more than an explosion or demonstration. But at the same time less. The endless repetition of images and stories in the media points to a fear for the indeterminate and indeterminable void of the event. In the end there is nothing to see. We do not live in disaster’s shade or miracle’s light, but rather in the rhythm, which is contracted time, having little to do with omnipresent representations. For this book I did not intend a rhythm of evental representations (a narrative rhythm), but a rhythm which would be an event itself , because it draws the border between artwork and history. My desire for a direct engagement with the “extra-textual reality” has nothing to do with the representation of “rumor in the streets.” (What has less street cred than representation?) Naturally, a poem is no historical event and does not change anything. But a poem is a part of history that wants to be repeated forever, constructed in such a way that it is worthy of repetition. It is a part of desire (composition) made consistent (durable). The “historical event” flares up and burns down, and has to burn down to be effective. The leftovers are images and stories (representations), History—no event. The artwork—that is the ambition— remains event (though monumental and inefficient/inoperable). (No wonder that a historical singularity, a revolution, reminds us of a work of art; the resurrection yearns for a judgment, an affirmation; everything depends on it.) Hence the title does not summarize the book, let alone contract its “content” into a quasi-transcendental signifier. The title is juxtaposed to the book, like everything else inside the book, and in that relation it precisely forms a part of it. The ideal work is an open whole, lacking nothing but to which everything may be added. I have been interested in this “everything,” the world, or as I said above: capitalism. “Everything” is not the space for “wonder”—a code word, a shibboleth for petty bourgeois imagination (I recognize myself in the strangest things, a speaking dog, a canal, a pond standing straight—oh my god). No. The world is a social world, not YOUR world, poet. Power is number one. I will call “Dutch,” or “shitty,” whatever denies this power. That hurts, but this pain is an expression of the desire in the world to write another world, or as Blanchot says, “the other of all worlds” 2 : the world. Not as what “is there,” but rather as that which urges for an escape from what “is.” This is a testament of how radical reality has become, for me—or rather, a writing body—in a having-been-written. I am not interested in the problem of “meaning” as misunderstood by literary scholarsi: “order” in “chaos,” “symbolization.” Bullshit. What is there, hop, hope, now: the meaning of the taste in my mouth. Bullshit. I am not interested in the frustration of interpretation; I am writing for readers who do not want to interpret. I do not know how many “professional readers” will hear the music of a paragraph like: Sun. Sushi. Volvo. I hope more than I would think. There is a suggestion (or rather, an actual production) of speed and infinitive owing to the absence of plosives, i.e. articulations such as /k/, /t/, or /p/. Can you hear the slick suaveness? Driving car dark, vocal chiaroscuro of the word “sushi.” The unstressed /i/ stands in the middle of dark vowels and thus acquires its own special out of focus , like a momentary flash or brilliance—an obscure light. It is not about recognizing a story, but about avoiding any story whatsoever: the car disappears in the glow, cars and raw fish have nothing in common except their articulation in a language that brings them together, blurring them. A world appears in its disappearance. For a moment, light is a metaphor for language, though it cannot be reduced to tenor. It is not necessary to be a linguist or philosopher to hear this—a “difficult” poem all too often becomes an allegory of its own impenetrable being-language. The only demand: leave your hermeneutical fetish at home. This was no interpretation. Most shit has been stolen etcetera. That is no longer interesting. You cannot shoot the body with information and let your lawyers reclaim the bullets. So every sentence has been stolen. Also the ones “out” “of” “my” “head.” Why would I be allowed to steal from myself and not from others? Man takes what he needs to move forward. Whatever he encounters, finds in front of him, “occurs” to him. The writer as text editor, or singing pirate. Nothing new here. Important difference with for example Sybren Polet’s 4 montage technique: anti-thematicism. Most of the time ferocious citation from whatever I was reading, listening to, ended up in, and so on. I wrote chapter 12 on my laptop while watching CNN. On the air instead of en plein air . I often employed search engines to generate material. Chapter 20 offers the purest example of this. Often I stop recognizing a particular citation after some time. It is not uncommon for a stolen sentence to conform itself to the paragraph in which it finds itself. Sometimes I nearly arbitrarily replace words. Arbitrariness as a guarantee for absolute democracy. It is a poetics of the non sequitur : a conclusion that does not follow from the premises, the strange element in the discourse. A discourse of strangers. No logical, narrative, thematic unity. There is unity in speed/flight. It has to be read linearly, but not necessarily (not preferably) from beginning to end. The shortest distance between two points is a straight line, but this line precedes every point. The middle, the acceleration, comes first. A point occurs where two lines cross. It has been written from up close, at the level of the tension between sentences. Nothing to be seen from a distance: no form except the exchange of form, no geometrical or mythical meaning. You have to get in, “groping toward a continuous present, a using everything a beginning again and again” (Stein). 5 In Dutch, experimental poetry has been mainly dense: a small rectangular form filled with a maximum amount of poetic possibility. But at the moment the poem starts to relax, the anecdotical content seems to increase. This is what is called “epic”: long, narrative. I believe that an epic is more than that, in fact something completely different. An epic is “a poem including history,” 6 a long poem tied up with the life of community, that as a whole does not need to be narrative. The American poets of the twentieth century (Pound, Williams, Zukofsky, Oppen, Olson, Silliman) have put the epic back on the map by interpreting the poem itself as a map, and writing it as navigation. They have invented the experimental epic, a genre that has generated little original following in “our” poetry. N30 is the middle part—“always start in the middle”—of a trilogy, the contours of which remain as of yet unclear, although each episode investigates one of the three “ecstasies of time”—past, present, future—concerning society X. N30 concerns itself with the PRESENT: not with the description of actual facts but of the rhythm and the intense depth in which facts appear to us. Where are we? We are camping in the desert. Sometimes we are looking at the stars. As opposed to maximum density and minimal tension (a characteristic of most (post-)experimental lyricism), I have sought a minimal density and maximum tension in this book, considered as a long non-narrative prose poem. On the one hand, the minimal density is obtained by the inherent formlessness of prose, on the other hand by the conscious refusal of any active (formal, non-rhythmic) synthesis: the poem tells nothing, shows nothing, has no theme. I did not seek maximum tension either by loading the quotidian with epiphanic radioactivity (“wonder,” confirmation from above), or by means of the intensity of the linguistic structure. I want an abstract tension, but social in its abstraction, in other words, not neutralized by and subjected to Form. Instead of form (transcendent): composition (immanent). The concept is series. Ideal: every unit is necessary for the efficacy of the others and the whole, their relation is purely linear, i.e. non-hierarchic, non-syllogistic, non-discursive, non-narrative. Sentence related to sentence like paragraph to paragraph and chapter to chapter; the whole means nothing and represents nothing. Inside the sentence: syntax (Chomsky’s tree, a type of parallel circuit), outside: parataxis (coordination, an asyntactic line through language and world). I consider duration—the energy of duration (rhythm)—to be the fundament of a poem, the temporal inclination to delimit a “space.” Being as consistency, its consistency. A spatial part of time is not merely a metaphor for an inevitable trajectory, an inescapable time, something like “our time.” Not merely—because rhythm comes from language and is not projected onto it; the poem derives from the world like a scent and a color and a life from a flower. A series, a sequence: nothing potential, but truly infinite—the movement of an infinitude. The infinite series = everything minus totality. That means that there is no container—no Form, no Self, no Image, no Structure, not even a Fragment—just “the prose of the world.” No representation, but also no staging of the impossibility of representation (the postmodern sublime). These are no fragments, no image of a fragmented world or personality, no cautious incantations around the Void. It does not exist. It is a movement. Buying bread, a flock of birds, a bomb falling—they do not depict or represent anything, not literally, not metaphorically. There is an Idea, which is however nothing more than a rhythm, in the same way that capitalism is nothing more than a pure function. Parataxis: the white space between two sentences stresses, which is nevertheless always there, also between words, even between letters: the out of focus of idle talk, the gutter, the irreducible Mallarméan mist which renders even the seemingly most transparent text legible. The white space suggests a neutral medium for free signification, a substance of language. A non sequitur is an element from a foreign discourse, which stresses the white space as space, and problematizes freedom for supra-sentential signification. I start by withdrawing material, leaving the initiative to the sentences. In general a word presupposes less often a discourse than a sentence. What discourse is presupposed by “dog”? We could think of several, but why would we? It is more probable that, when faced with the naked word, we think of its naked (dictionary) meaning, of its denotative signified. By means of two simple interventions we may also write the word as sentence: Dog. In no way this suggests the discourse from which this sentence originates, but in any case we’re presupposing one. This is shown by questions like: “Whose dog? Who’s a dog? What kind of dog?” Etc. (Sentences are question marks.) A sentence implies/is a microcosm—a subject, a verb, an object, and so on. Even an incomplete or ungrammatical sentence does so. My main fascination while writing this book is the worldly and social aspect of language, an aspect that often becomes invisible, or rather, transparent in narrativity—the stretching of sentences into stories. Narrativity organizes a new discourse and a new world, and places a sometimes all too dispersing relation of transparence in between. The conventional novel is the brothel of being. I do not intend to prohibit brothels, and I have certainly not intended to write an anti-novel (THIS IS A POEM), but I do consider narrativity (in general, in poetry, in the news, in daily life) to be ontologically secondary with regard to an immediate being in the world through sentences, also if the latter have been withdrawn from a narrative or otherwise externally structured discourse (which in that case would therefore be chronologically primary ). Naturally, two or more sentences are always in danger of telling stories or arguing, just like the world is always in danger of becoming an objective representation, facing us, strangers. That is why need to wage war—against representation and against the interface, against interaction. AGAINST THE “READER.” To the extent that a sentence is worldly, writing is a condensed global war, and in so far as there is ultimately only one world and one open continuum of languages, it is a global civil war. Nice subject for an epic. The elaboration of a singular problem—prose as the outside of poetry, the form of the novel as purely prosodic composition scheme—“expresses” the universal problem: capitalism as Idea of the world vs. poetry as language of an (im)possible community. The paragraphs are blocks of rhythmically contracted social material. By choosing the sentence as the basic compositional component, an abstract whole may contain social sounds, without telling a story or showing an image. Composition is subrepresentative —a rhythmic, passive synthesis, or rather: a synthesis of syntheses. I never write large blocks of prose in one sitting, because there is no obvious organizational vector —plot, theme, conscience—outside the inherent qualities of the material itself. Usually I write down one sentence, sometimes two, but rarely more than three. Those sentences are usually placed in the text which I am editing at the time. In fact, there is no original composition, new chapters split off from chapters which became too long during the editing process. (Revision mainly consists of adding and inserting, displacing and dividing; only during the last phase, when the text has gained enough consistency, there may be subtraction to tighten the composition; each chapter requires a season of daily revision). This constant revision, accompanied by a continuous influx of collective background noise (to speak with Van Bastelaere), 7 makes every chapter a block condensed (“historical” and “personal”) time. The block itself is a-personal and a-historic; it is ontologically autonomous. If there is such a thing as a spirit of the times, I do not try to offer an image of it, but rather to cancel something of it by erecting a monument of its own excrement within its own boundaries. Tuning and dis-tuning , “in de taal der neerslachtigen een eigen geluid doen klinken,” 8 in other words, desiring in an Elysian way. In this sense I have intended to be able to write a political poetry. The ultimate political poem is the epic, “the tale of the tribe.” I consider N30 to be a prolegomenon to a future epic (of which it in the end will form a part a structural moment, as introduction-in-the-middle), an extended pile on top of an epic as narrative, a question of the tribe and question of its history. I was burdened by too much satire, too much bullshit. But: satire willy-nilly = the only justifiable satire. Against the abstract universalism of the market (“globalism”): concrete disgust, a positive way of saying “No.” Moreover, disgust is a specifically total attitude, which ultimately concerns the world as a whole. I hate this or that, but I am disgusted by EVERYTHING (when I am disgusted), and so it appears that satire is in fact related to the epic, in so far as it concerns society, the cosmos, history. Maybe it is no coincidence that the Dutch literary canon knows no great poet of disgust; what could be more fearful to us than society, the cosmos, and history? The T-tendency (T from Tollens 9 ) clearly points into the direction of the small, friendly, ironic, melancholic, acquiescent, wondrous, and so on. The anti-political, anti-cosmic, anti-historical. (Why am I so philosophical? To scare away the Dutchies.) And most of all: the “poetical” (the pseudo-mysticism from the backyard). Yes, the N in N30 also stands for the Netherlands (just like 30 indicates the number of chapters). I was not in Seattle, I do not live in Iraq. But is not the whole world bleeding to death on Dutch paving stones? Let’s hope that we mowed away something with this total satire, also “in myself.” The arrogant stupidity that definitely thinks to know the essence of freedom (the free development of esthetic needs inside the void), that cannot take anything serious, only believes in the disciplined bestiality of the individual (“norms and values”) and the mere functioning of a social factory which finds no justification whatsoever outside its functioning (“get to work”)… Who knows. A certain aimed destruction leaves grooves and craters, mapping out a next adventure. Pound’s periplum : sailing while mapping the coasts. Immanent orientation. The terrain changes with the map, history changes with the poem. Maps never merely organize the chaos, transcendent schemes imposed on a formless Ding-an-sich . They organize from within, surfing. But they are most of all routes back into the chaos or forward to paradise (final identity of chaos and paradise; Schlegel: “ Nur diejenige Verworrenheit ist ein Chaos aus der eine Welt entspringen kann ”10). A poem is not only a piece of history, it is also a flight from history. Maps give chaos to the form of reality , open escape routes, break through representations, make us shivery and dazed. Paradise is immanent to a fleeting desire. History is the history of labor—this is Adam’s curse—and the poet works too: For to articulate sweet sounds together Is to work harder than all these, and yet Be thought an idler by the noisy set Of bankers, school masters, and clergymen The martyrs call the world 11 But: the poet works in paradise. The paradox of the artwork, the work that is no work, the piece of history that cannot be reduced to History—this is explained by The Space of Literature , a virtual space, an autonomous rhythm, not outside, but in the midst of the noise, a piece of paradise in hell, a postcard from the vale of tears addressed to paradise, to X. Political poetry means: a poetry that dares to think about itself, about its language and about its world and about the problematic relation between both, which is this relation as problem. A poetry that thinks at all, articulates its problem. It has nothing to do with journalism or morality or debate, let alone the law or the state. It has nothing to do with “criticism” if this means the replacement of incorrect representations by other, more correct representations. It has something to do with ethics in the sense of learning to live. It has something to do with the community and the language of the community (whichever that may be) and the role of the poet regarding the community. It concerns justice without judgement or measure. In the end the just word is just a word , to paraphrase Godard: it is from a future that is unimaginable. It Is no rational engagement, but an aversion against everything that obstructs life, and love for everything what is worthy of having been loved. The world is engaged with me, not the other way round. First Exodus, then Sinai. A desire does not start with an agenda. To answer the question whether I am really so naive as to want to change the world: “We only want the world.” Justice is the world appealing to us to liberate it from all possible chains, from each organization and inequality, to be it, smooth, equal, under a clear sky—a desert and a people in a desert. That moment between Egypt and the Law. It is not a revolution, but the sky above the revolution. Poetry = the science of escape. There is no art that we already know. The weakness of modernistic epic poetry seems to me to be the unwillingness to completely abandon narrative as a structural principle, in favor of a composition “around” or from an event. The China Cantos and Adams Cantos are the low point, and the Pisan Cantos the high point of Pound’s poetry. Two types of research: archival representation of the past vs. ontology of the present (which virtually presupposes the entire history). Presupposing an event means that it is impossible for the poet to stage his own absence, but in no way makes the work personal. An event is the unknown, the new invading into the business as usual, so also the personal. The question heading this research is not: “Who am I?” but “What is happening?” The book is as little illegible as Mondrian’s work is invisible. Form is of interest only to the extent that it empowers liberation. Ron Silliman So no formalism, but what it means to live in this world and to have a future in it. I want something that holds together that’s not smooth. Bruce Andrews The past above, the future below and the present pouring down: the roar, the roar of the present, a speech— William Carlos Williams If my confreres wanted to write a work with all history in its maw, I wished, from the beginning to start all over again, attempting to know nothing but a will to create, and matter at hand. Ronald Johnson NOTES 1) “The easy thing/ that is difficult to make.” Bertold Brecht, Lob des Kommunismus . (All footnotes are the translator’s) 2) Maurice Blanchot, The Space of Literature , trans. Ann Smock. Lincoln/London: University of Nebraska Press (1989), 75. 3) Mettes uses the word “Neerlandicus,” which refers to scholars of Dutch language and literature. 4) Dutch poet. 5) Gertrude Stein. “Composition as Explanation.” A Stein Reader . Ed. Ulla E. Dydo. Evanston, IL: Northwestern University Press (1993), 495-503. 6) Ezra Pound. 7) Flemish poet. 8) “Resounding an original sound in the language of the despondent.” A. Roland Holst, De afspraak . 9) Dutch poet. 10) “Only such a confusion is a chaos which can give rise to a world.” 11) W.B. Yeats, “Adam’s Curse.&rdquo. (shrink)

In 1992, the United States Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, upheld the ruling in Roe v. Wade, namely that women have a right “to choose to have an abortion before viability and to obtain it without undue interference from the State.”1 However, since this ruling, some states have imposed regulations that greatly limit this right by restricting access. Texas is a recent example of this. Two proposed restrictions in House Bill 2, which will be discussed (...) in detail below, will force all but eight clinics that are located in metropolitan areas to shut down. The U.S. Supreme Court put the proposed restrictions on hold in October 2014, allowing several clinics to remain open while the restrictions are being appealed in the U.S. Court of Appeals for the Fifth Circuit. If the restrictions are passed, however, those clinics will be forced to shut down and, as a result, many women in Texas will be required to travel more than 100 miles in order to access a safe and legal abortion. Much of the focus of these restrictions has been on women and rightly so. However, I want to turn the attention to physicians. The requirements exacerbate unfair treatment of abortion providers compared with other physicians. Abortion providers face threats from the public—some of which turn into violent attacks—and they are often ostracized by their fellow medical practitioners. There are so few abortion providers to begin with and the proposed requirements limit these physicians’ opportunities to practice the branch of medicine of their choosing. Although the HB 2 requirements may not result in an unconstitutional undue burden on physicians, the challenges created by the bill limit physicians’ abilities to provide abortions. As a result of these limits, HB 2 creates an unconstitutional undue burden for women seeking abortions by creating barriers directed at abortion providers and clinic staff who are willing and able to provide abortions. The first of the two controversial HB 2 requirements is the admitting privileges requirement: “A physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.”2 The second requirement is the ambulatory surgical center requirement: “The minimum standards for an abortion facility must be equivalent to the minimum standards adopted under [Texas Health & Safety Code] [...] for ambulatory surgical centres.”3 In order to meet these state-mandated obligations, some abortion clinics would have to spend more than $1 million in upgrades if they wish to remain open. The District Court decided that the ambulatory surgical center requirement places an unconstitutional undue burden on women, and that the two requirements together place an undue burden on women in Texas and especially in the Rio Grande Valley where the nearest clinic is a couple hundred miles away.4 Later, the U.S. Court of Appeals for the Fifth Circuit reversed the District Court’s decision and argued, “the admitting privileges requirement is constitutional on its face.”5 While the regulations are being appealed, the Supreme Court granted a stay of injunction, allowing about twelve abortion clinics to reopen until a final decision regarding the regulations is made. The District Court ruled that the purpose of the two regulations was to create a substantial obstacle for women seeking abortions in Texas. While the defendants argued that the regulations were designed to make abortions safer and reduce risk, the Court decided that this was not the case. An abortion, especially a first-term abortion, is a very safe procedure and is safer than many other routine surgical procedures. As stated in Planned Parenthood v. Casey, “Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.”6 The undue burden in this case is imposed, not through restricting women’s access directly, but by restricting physicians’ freedom to perform abortions. The admitting privileges requirement has reduced the number of physicians who can perform abortions and the ambulatory surgical center requirement has reduced the number of clinics where abortions can be performed. The American Medical Association states, “[t]he Principles of Medical Ethics of the AMA do not prohibit a physician from performing an abortion in accordance with good medical practice and under circumstances that do not violate the law.”7 This means that physicians are not required to perform abortions, except in emergency situations, but can as long as the procedure is done safely and does not violate the law. The new Texas regulations, however, are so restrictive that few abortion providers, limited to only four urban areas, can legally perform abortions. Physicians do not have an absolute right to perform abortions as opposed to women who have an absolute right to have access to an abortion. Physicians do face many challenges that other professionals face in terms of obtaining qualifications and finding work. Abortion providers, however, face challenges that most other physicians do not. The restrictions imposed by these regulations exacerbate unfair treatment toward abortion providers and place further obstacles in their path in terms of providing the service they want and are qualified to provide. Both abortion clinics and abortion providers are being treated differently from other medical clinics and physicians. For instance, “grandfathering of existing facilities and the granting of waivers from specific requirements is prohibited for abortion providers, although other types of ambulatory surgical facilities are frequently granted waivers or are grandfathered.”8 Many abortion clinics cannot afford the necessary upgrades. Furthermore, it is extremely expensive to open a brand new clinic that complies with the ambulatory surgical center requirements. Being grandfathered in would be the only option available to abortion clinics that cannot afford the upgrade. However, unfair treatment of abortion clinics and providers is preventing those clinics from being grandfathered into the new system. As a result, many abortion clinics may be forced to close. Admitting privileges are proving difficult or impossible for physicians both to obtain and, for those who have already been granted privileges, to keep. Dr. Sherwood Lynn, an obstetrician-gynecologist who has performed abortions for decades, describes the process of obtaining admitting privileges and the difficulties abortion providers face. After sending in an application a physician must wait for the hospital to send them the required materials, “but if the address of the practice on the application is of an abortion provider or clinic, [the hospital] won’t send [them] the package of materials required. [They] simply can’t apply.”9 Dr. Lynn and several other physicians have surmised that hospitals are only withholding privileges from qualified physicians who perform abortions and that other physicians do not face this discriminatory treatment. Hospitals have also revoked privileges granted to physicians after learning that the physicians perform abortions. For instance, in Texas two doctors, “received notices [...] informing them that their admitting privileges to the University General Hospital of Dallas have been revoked, with the hospital’s CEO claiming the hospital was unaware they were providing abortion care and that the hospital believed such care would damage its reputation.”10 What is curious about this revocation is that, “federal and state laws [...] forbid hospitals from discriminating against doctors who perform abortions,” and yet hospitals are clearly doing just that.11 Dr. Pamela Richter, another abortion provider in Texas, had her temporary admitting privileges revoked with no explanation and because of this, the clinic where she performed abortions, Reproductive Services, can no longer provide abortions at all.12 As the hospital gave no reason for the revocation, it not clear Dr. Richter’s privileges were revoked because she performs abortions. Dr. Richter, however, has performed over 17,000 abortions and her privileges were revoked soon after HB 2 was introduced.13 According to the Texas Hospital Association, giving admitting privileges to doctors who do not work for the hospital is expensive and time-consuming but this does not account for the fact that hospitals are revoking previously granted privileges from physicians whom they learn are providing abortion services.14 As mentioned previously, the District Court found that the admitting privileges requirement and the ambulatory surgical center requirement do not further ensure the health and safety of women undergoing an abortion. Several physicians have testified to this fact. Dr. Lynn stated in an interview: The admitting privileges requirements are [...] absolutely unnecessary. If you have a number of patients waiting for procedures, and something happens and a patient needs to be transferred to a hospital, you’re not going to leave everyone else and go to the hospital. That makes no sense. You’re going to refer that person to a gynecologist at the hospital. There is no safety issue involved here. If a patient shows up with an emergency, every hospital is required to admit that patient. They have to by law.15 It is rare that complications will arise from an abortion performed in a clinic. Dr. Richter, for example, has performed more than 17,000 abortions and not once had to send a patient to a hospital because of complications resulting from the procedure. According to Dr. Lynn even if abortion providers were granted privileges to hospitals, it is unlikely that they will exercise them. In essence, having admitting privileges at a hospital does nothing to further ensure the safety of an already safe procedure. The only result of the admitting privileges requirement is to limit certain physicians’ ability to perform legal abortions. Not only do the HB 2 requirements fail to further ensure the health and safety of women, the HB 2 requirements may actually create more health risks to women who cannot access the eight remaining clinics. The first risk is that the remaining clinics would have an influx of patients that they may not be able to handle, forcing women to wait longer for an appointment. As stated by the District Court, “[e]ven assuming every woman in Texas who wants an abortion [...] could travel to one of the four metropolitan areas where abortions will still be available, the cumulative results of HB 2 are that, at most, eight providers would have to handle the abortion demand of the entire state.”16 Furthermore, “[t]hat the State suggests that these seven or eight providers could meet the demand of the entire state stretches credulity.”17 Abortion is a time sensitive procedure. It is safest when performed early in a pregnancy. The increase in patients to these remaining clinics, assuming all women in Texas can access them, will increase wait times and may force women to have abortions later in pregnancy. In the worst-case scenario, a woman would not see an abortion provider at all before viability. Such instances may be rare, but they are possible. In such cases, women’s access to legal abortions becomes impossible and thereby violate the ruling in Roe. Clinics may be able to avoid the aforementioned problems if they hire more physicians. However, there are two barriers to hiring more physicians. First, as mentioned previously, admitting privileges to Texas hospitals are difficult, if not impossible, for abortion providers to obtain. Second, given the negative treatment of abortion providers by anti-abortion groups, many physicians are not willing to perform abortions. The harassment abortion providers face is unique to those physicians and many physicians will not perform abortions for that reason. In an article published in the Austin Chronicle, anti- abortion activist Abby Johnson, “discusses how her group investigated appraisal district records to find the new location of where an Austin abortion physician plans to work.”18 Johnson states, “These abortionists are feeling the pressure from the pro-life movement in Texas. I think they feel like they’re on the run. And that’s how we want to keep it.”19 If the HB 2 requirements are passed and there remain at most eight abortion providers in Texas, these activists will concentrate on those clinics and, “the dangerous impact of their intimidation tactics will be exacerbated.”20 Even if the number of physicians needed to meet the demand in Texas can obtain admitting privileges and work at one of the remaining clinics, they may choose not to do such work because they are putting themselves at risk. The harm abortion providers face from such anti-abortion groups is not unique to Texas. There are stories from all over the country and from other countries where abortion is legal of physicians receiving death threats. Dr. George Tiller, an abortion provider in Kansas, was killed outside his church and had received numerous death threats prior to this. The HB 2 requirements are making it so that abortion providers either cannot provide their services any longer or will face increased threats and increased danger to themselves. Physicians are allowed to conscientiously object to providing medical interventions in certain circumstances for moral and religious reasons. However, there are limits on this right. According to the American Congress of Obstetricians and Gynecologists, “[w]hen conscientious refusals conflict with moral obligations that are central to the ethical practice of medicine, ethical care requires that the physician provide care despite reservations or that there be resources in place to allow the patient to gain access to care in the presence of conscientious refusal.”21 I would argue fear for one’s safety in the face of immediate threats is perhaps a stronger ground on which to refuse to provide care than a personal belief that abortion is immoral or against one’s religion. ACOG also states, “[p]roviders with moral or religious objections should either practice in proximity to individuals who do not share their views or ensure that referral processes are in place so that patients have access to the service that the physician does not wish to provide.”22 This responsibility has been largely disputed by the medical community but in cases of rape, incest, and health risks to women, referrals must be made without exception. However, under the requirements of HB 2, working in proximity to an abortion provider may not be possible because they are so geographically limited. Referrals are supposed to be made within reason. Some areas of Texas, such as the Rio Grande Valley, are up to 200 miles away from the nearest clinic that would remain open if HB 2 is passed. Referrals may simply not be feasible given the geographical distances and the decreasing number of available physicians. As mentioned above, there are two risks to the health and safety of women as a result of HB 2. The second of these is that if a woman cannot access one of the remaining clinics, she may seek out a more convenient but illegal and unsafe abortion, which is far more likely to result in a dangerous complication. Dr. Lynn states, “[b]ecause of the restrictions lawmakers impose, women will seek abortions illegally, and we’re going to see a rise in septic abortions.”23 Some areas of Texas might effectively revert back to a pre-Roe era where abortions were performed in unsanitary conditions by unqualified people resulting in dangerous medical complications far more often than legal abortion procedures do now. Physicians like Dr. Lynn who want to prevent this from happening generally cannot do so without facing legal sanction. Physicians have a duty to provide safe medical care and if they cannot obtain admitting privileges, they cannot exercise this duty. ACOG released a statement expressing their objections to the new requirements. They state that HB 2 is, “plainly intended to restrict the reproductive rights of women in Texas through a series of requirements that improperly regulate medical practice and interfere with the patient-physician relationship.”24 Executive Vice-President of ACOG, Hal C. Lawrence III stated: The Texas bills set a dangerous precedent of a legislature telling doctors how to practice medicine and how to care for individual patients. ACOG opposes legislative interference, and strongly believes that decisions about medical care must be based on scientific evidence and made by licensed medical professionals, not the state or federal government.25 Abortion is one of only a few areas of medicine where the legislature imposes so many regulations restricting particular physicians’ ability to practice medicine. Not only are abortions providers being regulated by the state, they are also facing clear discrimination from others within the medical community. The state is closing down clinics that do not meet the ambulatory surgical center requirements and hospitals are denying physicians admitting privileges because they perform abortions. In summary, abortion providers are being discriminated against both by the legislature and other members of the medical community. Other physicians who do not perform abortions are not denied admitting privileges on discriminatory grounds. Clinics that cannot afford upgrades to become an ambulatory surgical center are being grandfathered in, while abortion clinics are being forced to close down. Ob-Gyns who conscientiously object to performing abortions and who are not located in close proximity to at least one abortion provider cannot effectively fulfill their duty to refer patients. Lastly, given the barriers these regulations will create, there will likely be a rise in complications resulting from abortions provided under grossly unsafe conditions. Physicians, whose duty it is to provide safe and effective medical care, are being denied the right to exercise this duty. While this denial may not be unconstitutional, it is certainly unjust and discriminatory and creates obstacles that other physicians do not face. Most importantly, these obstacles are creating an undue burden for women. The HB 2 requirements do not increase the health and safety of abortions; all they do is create substantial obstacles for women. In light of these observations, the requirements seem to me to be in clear violation of Casey, in which it was decided that, “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right.”26 These regulations do just what Casey was meant to prohibit and this is accomplished through limiting physicians’ ability to practice safe abortions across the state of Texas. Therefore, the HB 2 requirements may not impose an undue burden on doctors but they do impose an undue burden on women. PDF available: Rachel Hill, "Texas HB 2," Voices in Bioethics. References: 1 Planned Parenthood of Southeastern Pennsylvania v. Casey, pg. 2. 2 Whole Women’s Health v. Lakey, pg. 2. 3 Ibid. 4 Ibid., 4. 5 Ibid., 2. 6 Planned Parenthood v. Casey, pg. 16 7 AMA Code of Medical Ethics, “Opinion 2.01 – Abortion,” American Medical Association. 8 Whole Women’s Health v. Lakey, pg. 10. 9 Dr. Sherwood Lynn, “A Texas Ob-Gyn Details the Horrific Consequences of Abortion Restrictions,” Cosmopolitan. 10 Feminist Newswire, “Texas Hospitals Revoke Admitting Privileges to Abortion Providers,” Feminist Majority Foundation Blog. 11 Ibid. 12 Ibid. 13 Ibid. 14 Glenn Hegar, “Texas Hospital Association’s Statement of Opposition to Section 2 of the Committee Substitute for Senate Bill 5,” Texas Hospital Association. 15 Dr. Lynn, “A Texas Ob-Gyn.” 16 Whole Women’s Health v. Lakey, pg. 10. 17 Ibid. 18 Mary Tuma, “Undercover Audio Reveals Anti-Abortion Tactics: Anti-abortion activists monitor and track providers, patients,” Austin Chronicle. 19 Ibid. 20 Ibid. 21 Committee on Ethics, “The Limits of Conscientious Refusal in Reproductive Medicine,” The American Congress of Obstetricians and Gynecologists. 22 Ibid. 23 Dr. Lynn, “A Texas Ob-Gyn.” 24 “Ob-Gyns Denounce Texas Abortion Legislation: Senate Bill 1 and House Bill 2 Set Dangerous Precedent,” The American Congress of Obstetricians and Gynecologists. 25 Ibid. 26 Planned Parenthood v. Casey, pg. 16. (shrink)

Advocates, activists, and academics have criticized pharmaceutical intellectual property ("pharma IP") rights as obstacles to access to medicines for the global poor. These criticisms of pharma IP holders are frequently exceptionalist: they focus on pharma IP holders while ignoring whether others also bear obligations to assist patients in need. These others include holders of other lucrative IP rights, such as music copyrights or technology patents; firms, such as energy companies and banks, that do not rely on (...) IP; and wealthy private individuals. Their resources could be used to aid patients by providing direct medical assistance, funding prizes or biomedical research, or purchasing pharmaceutical patents and granting rights to the disadvantaged. -/- After identifying this exceptionalism, this Article evaluates several arguments in its defense. These are that pharma IP holders are unique in (1) owning what poor patients need, (2) being in special proximity to these patients, (3) being able to assist at low cost to themselves, (4) having a professional duty to help these patients, or (5) being implicated by their past conduct in these patients' plight. It concludes that none of these arguments are compelling: while IP holders have a duty to help, this duty is not fundamentally different from the duties others owe. -/- Even though this project criticizes exceptionalism, it does not absolve pharma IP holders of duties to help the sick. Rather, it argues that spreading the costs of aiding patients in need across a greater number of market actors, via publicly funded "pull" programs like prizes and patent buyouts or "push" programs like grants, would be preferable. So would allowing pharmaceutical firms to seek contribution from others who are able to help. However, if others cannot be held to account, imposing burdens on pharma IP holders can be justified in order to promote global health: treating wealthy firms arbitrarily is preferable to ignoring the urgent needs of the global poor. (shrink)

While the unprecedented lockdown measures were at the heart of the debate in the first year of the pandemic, the focus since then has shifted to vaccination issues. The reason, of course, is that vaccines and vaccinations have become available by now. All experts agree: If mankind had failed to develop vaccines against SARS-CoV-2, the death toll would have been much higher. This issue seeks to explore what could be described as a “generational approach to vaccinations”. The question “What can (...) we do to avoid future pandemics?” is related to different aspects of the failures and successes of humanity’s vaccination strategy against SARS-CoV-2. Pathogens are among the existential risks to humanity that could potentially kill a large part of it in a very short time. For all the tragedy and horror it has brought upon the world, the Corona virus has not been lethal on such a large, all-encompassing scale. But it could serve as a wake-up call for more and better prevention in the future, put differently: as a call to build a “preventive society”. When people look back to the year 2022 from the year 2200, will they think of the absence of mandatory vaccination as a dangerous anachronism? And will the unequal global distribution of vaccines be seen as an unbearable vice of our epoch? And will “human infection studies” still be dismissed as unethical if a dangerous new virus boards human bodies? If intergenerational justice means improving the life chances and living conditions of future generations to the largest possible extent, then its link to (the avoidance) of infectious diseases is obvious. We should protect future generations from foreseeable damage if we have the power to do so. “We” is humankind in its entirety. Politically, humanity is divided into many single nations. But biologically, as members of the same species, we share the same vulnerability regardless of ethnicity. The regular reader of this journal might wonder why this issue of IGJR has a different structure. An unprecedented pandemic calls for an unprecedented reaction and therefore IGJR 1/2021 and 2/2021 are special issues that deal with this disruptive event. We have invited several health experts, politicians and scholars alike to share their perspectives in short opinion pieces (instead of regular peer-reviewed articles). And we are exploring something new: the publication of a FRFG policy paper. This policy paper starts off with a historical overview on how pandemics have afflicted humanity in the past. It separates moral from legal duties and formulates “epidemiological imperatives” – the way of thinking of a responsible and solidary individual facing the task of preventing an outbreak of epidemics in a community. With the discovery of vaccines, and their availability, the catalogue of duties is increased by one more: to get the jabs as an act of solidarity with others, including future generations. This would prevent states from being forced to take disease control measures that bring about drastic collateral damage. During the first two years of the Corona pandemic, states have imposed lockdowns. The closure of schools has put a special burden on the youngest members of society. This could have been prevented during the second and the further waves. The policy paper also calls for more government funding for prophylactic vaccine research and for the designation of vaccines as “global public goods”. The issue then moves on to a section dedicated to opinion papers by various different authors. The first paper, written by Agnes Binagwaho and Kedest Mathewos (both from University of Global Health Equity, Rwanda), focuses on the issue of health inequity, a concern which has gained more and more traction during the Covid-19 pandemic. The paper examines how vaccine distribution during the pandemic was mainly focused on the global north and how such actions might affect future generations’ perception of what is just, fair and morally correct. The second paper, by Samantha Vanderslott (University of Oxford), focuses on the right and wrongdoings connected to pandemic preparedness and response. The third paper, authored by Rajeev Sadanandan (Health Systems Transformation Platform, India), talks about the lessons that can and should be drawn from child immunisations. The fourth paper, by Adriano Mannino (LMU and Parmenides Foundation, Munich), delves into the question how future generations will assess our actions and our response to the current pandemic. The fifth and final paper, written by Jörg Tremmel (FRFG and University Tübingen), is centered around the question whether human infection studies could have been implemented during the early stages of the pandemic to minimise deaths and severe infections. The issue concludes with two reviews on recent books by Alberto Giubilini and Katie Wright. In his review of Giubilini’s The Ethics of Vaccination, Marius Kunte notes that it contains a “thought-provoking plea” for individual, collective and institutional obligations to reach high vaccination rates. Judith Kausch-Zongo concludes her review of Wright’s Gender, Migration and the Intergenerational Transfer of Human Wellbeing with a special emphasis on the book’s empirical findings, and praises it in its entirety as “undoubtedly important”. Both books serve as poignant reminders of how sustainable societies can only emerge once the challenges revolving around its most vulnerable members have been properly addressed. (shrink)

Reproduced with the kind permission of the author. Currently available in the collection I Looked Alive . © 2010 The Brooklyn Rail/Black Square Editions | ISBN 978-1934029-07-7 Originally published 2003 Four Walls Eight Windows. continent. 1.1 (2011): 43-51. Introduction Ben Segal What interests me is instigated language, language dishabituated from its ordinary doings, language startled by itself. I don't know where that sort of interest locates me, or leaves me, but a lot of the books I see in the stores (...) seem to lack language entirely. Gary Lutz (2006). This issue of continent.'s fiction section features a reprint of “This Is Nice of You” from the first edition of Gary Lutz's collection I Looked Alive . That book was originally released by Four Walls Eight Windows in 2003 and has since been reissued in 2010 by The Brooklyn Rail/Black Square Editions. Calamari Press has also reissued Lutz's Stories in the Worst Way (originally published by Knopf, largely forgotten and dismissed, and then re-issued by the too-short-lived 3rd Bed). “This Is Nice of You” was edited for the re-issue of I Looked Alive and, as the original book is out of print, the earlier version of the story has been hard to come by for some time. This initial version is a bit longer than the new version—Lutz is a master of tightening down his texts to their most linguistically intensified cores—but it is in no way sloppy. It is a great privilege for continent. to be able to make available rare texts of (first) aesthetic and (second) scholarly value. For those readers unfamiliar with Gary Lutz, I believe this story will serve as a worthy introduction. Like Raymond Carver, Diane Williams, Christine Schutt, and so many other important twentieth century and contemporary short story writers, Lutz studied with and was edited by Gordon Lish. This connection is apparent in his attention to sound and the sentence as compositional unit, but Lutz's is a unique voice. “This Is Nice of You” bears Lutz's trademark torqued and turning syntax, his sexed-but-nameless characters, his rendering of the human body and its emissions as utterly discomfiting. Lutz's preoccupations with the mundane raise ordinariness, via startling language and observation, to grandiosity and grotesquery. In the fall of 2008, Lutz delivered a lecture entitled “The Sentence is a Lonely Place” to writing students at Columbia University. The lecture was later printed in The Believer (and is linked below). In it, he spoke about the importance of the sentence as a compositional unit, as even the distinguishing formal characteristic of prose. Specifically, Lutz explained that, from Lish, he had developed a "poetics of the sentence." Accordingly, Lutz constructs his stories at the level of the sentence, paying extreme attention to the material of words- their letters and their sounds- and the way they abut one another and interact on this material level even before they are employed in the service of traditional aims of fiction like meaning or story. Lutz often uses a(n almost constraint-related) technique called consecution. Letters or sounds from one word are carried forward into the following, producing drama and movement in the language itself at a level entirely apart from that of plot. For example, you can see how the 't's in the first sentence of “This Is Nice of You” repeat fast and hard through met and then soften into the 'th's of brothers and they. This close attention to the specific material and characteristic conditions of prose means that Gary Lutz's work always involves both a happening in language and of language. “This Is Nice of You” has a richness and depth that is hidden not in symbolism or obscure reference but on the surface of the page, in the language of every sentence. FURTHER READING Lutz, Gary. “ The Sentence Is a Lonely Place. ” The Believer January, 2009. Web. Short stories and excerpts at Web del Sol . Web. Taylor, Justin. “ An Interview with Gary Lutz .” Bookslut. July, 2006. Web. THIS IS NICE OF YOU [156] [1] I was a man dropping already well through my forties, filthy with myself, when, taking a turn at the toilets one afternoon, I met two brothers-they said they were brothers-who swore they had a sister, a schoolteacher, an officer of instruction at the county college, a whirlwind midlife turmoil of everything already put to ruin, who had gone off from a new marriage in an old car, an upkept and ennobling sedan, but had returned now to the apartment and [157] was living there alone with the little runoff there was from the marriage-some outcurved appliances, apparently, and low-posted furniture promoting its own mystery but becoming figurable in certain concentrations of TV light-and, above all, a telephone (on a pedestal, they insisted), the handpiece of which she gripped in lieu of exercise, or in fury, and I thus let out my little, reliable cry that I was in fact a student of the telephone, that it was a debasing apparatus in the main, with its meager economy of bells and tones, and the intimacy of the mouthpiece that sent your breath, tiny aftervapors of it, back toward your lips, so that regardless of the party accepting the outgoing products of your voice, you were, at most, in a further, rivaling exchange with yourself alone, and this is what must have brought the two of them around, the men who proclaimed brotherhood with the woman, because they offered me her phone number, put it at my disposal on a piece of paper one of them had already committed it to, a tearing from a menu, and the looks the men were now giving me had deletions in them, already, of my exact, beanpole shape and size. So off I went to a pay phone, the nearest canopied one I could find. The woman answered after the second ring and said she needed a lift right that very moment into the little, unlevel city close by. She was idling in the doorway of the building when I pulled up in front, and I helped her into the car, then got back in myself. I had always had a way of not having to look at people that nonetheless brought them to me in full, and so I still am certain of the susceptive and impressible comp-[158]lexion, the shimmer on the mouth, a lipstick of low brilliance, a difficulty around the eyes, the hair short and rayed out exclamation ally, skin bagged up over the elbow bone, conflict even in how her arms stayed at her sides—in sum, a spinal loveliness for me, an off-blonde quantity with shadowed, thumbworn hollows that put me out of as much as I might have ever known of women before. I set the two of us into the narrow traffic, and I remember telling her, by way of explaining the little burden which I had shifted, by now, from the shelf of the dashboard and onto my lap, that when you lived in filth, as I then did, a daily newspaper came to count for a lot, although instead of the thick-supplemented local paper I bought a trimmer one from a backlying town—not, of course, for any affluences of native data it carried, but as an article of house ware: a rough immaculacy in four lank sections, a set of fresh, hygienic surfaces to come between the table, say, and whatever I had going for me at the table, if the table was where I was going forward—because what else so cheap comes so clean and far-spreading? The woman told me that her own trouble with paper was that through a modest hole, no larger than a quarter, that had been drilled a foot or so above the floor (the standard height, she had reasoned, of legitimate electrical outlets), and by means of which her faculty office had at last gained communication with the roomier but unoccupied office next door, more and more often shot a single sheet of paper, plain copier paper she had rolled just barely into a tube, [159] so that after landing on the floor of the neighboring office the paper would preserve little if any of the curl, and there would be nothing written or typed on it, of course, and it was always a blank sheet that had been ageing on her desk for some time and had already been moved around, or advanced, from station to station on the desktop, coming into further creaselets and crimps and other infirmities—paper, in short, still too bare and unfraught to be thrown responsibly and forgettably away, and yet too seasoned and beset with irritations of the surface (a molelike blemish, say, or what looked like a tiny hair, an eyelash, sunk into it, or frecklings, or notational pressings of a fingernail), too wrought, in sum, for the paper to be appointed to any secure curricular purpose. Her office, she claimed, was in fact full of such paper, much-handled and singularized sheets of it by the loose, functionless hundred. I had to get it across to the woman that I myself no longer had an office, or any other place to divide me reliably from everybody else, and that for much of the daylight I thus appeared to be among people because I kept putting myself where people came together into even closer-fitting assortments, the viewing areas and showrooms and rotundas and such: I took in the lean-to look of the women, the tongues coming and going in what the men kept thinking of to say—whole families of low knees for me to bark my shins against during the crowded and involving way out. At home afterward, in the one room where my life was packed down, I would keep my nose stuck in the safehold of the phone [160] book, where the names of people suffered reduction to mere episodes of the alphabet and underwent humbling declensions down every column (Lail, Lain, Laine, Lainerd), and he names of streets, of the towns and townships, got docked in crude, heedless abbreviations (the vowels almost always the first to get poked out), and I would run my eyes over the telephone numbers themselves, each sequence of digits another fallible run of the infinite. I thus corrected my feelings for people and assembled myself emotionally into whatever else I had at hand—the obligating arms of the clothes hangers, usually, or the keen-angled understructure, the guardian legginess, of the ironing board. The woman said that in her case, though, it was more a matter of making slow circuits of the classroom where she had to put across the Emporial Sciences, retail theory and methods, to heat-giving and suggestive young women, some of them world cruelties already. There was the cooing of empty stomachs in the hour just before lunch, and the braying and fizzle of loaded stomachs in the low hours of the afternoon. She would recite her notes in a voice barely loyal to anyone octave, a tiny alluvium of slaver hardening at the corners of her mouth on the days she gave the glassy lozenges a slow, warming suck, and she would take lowering notice of how whatever she said succumbed at once to freak spellings and razzing paraphrase in the big, dividered notebooks; and because in midafternoon light the world looked as thorough, as filled in, as it was ever going to get, a better way to set about ruining her eyes was to review how hair had [161] established itself on the arms of the young women, because almost every arm had brought across itself a welcome and diversifying shadow. On one girl it would be a fine, driftless haze afloat above the white of the arm, never seeming to touch down on the skin itself. (An atmosphere, at most, of chestnut brown.) On another, it was as if copper wire, the narrowmost lengthlets of it, had been stuck into the fleshy batter of the thick, freckled forearms. On a third: a field of it–wheat-colored, thin-spun. On a fourth; a differencing, darkish updrift that shaded off as it approached the inner bend of the elbow, then re-emerged at the base of the upper arm as whiskery fringe. On others it was a brassy or rust-colored frizz, or it was as coarse as cornsilk, or it looked fussed on, as if the arm had been slowly stroked with charcoal. But here the woman broke off, or I may well have made an interruption of my own—I think I must have asked whether she was hungry, and she said if I was, and so on one of the lesser streets I parked the car and led her down into a belowstairs eating house I still remembered. Sandwiches were presently lowered in front of us. I watched her remove the festooned toothpick from hers and then play her fingers over the toasted planes before she took a fond first bite. "This is nice of you," she said. I must have looked at her in the way I then had of getting people to speak so they would not seem to be dwelling any longer on my features, because if on the well-set face the mouth and eyes are said to seem frozen in elegant orbit about the til) of the nose, then mine was a face that behold-[162]ers, regarders, could not help trying to round off with greater success, to goad the particulars of it back into the arcs they had wandered away from—the mouth, for instance, having been pursed and pinched suchwise that it seemed resident more on one side of the face than the other—and there were other signs of original strife to be busied with (slapdash eyebrows unbunched, it appeared, from reserves of hair elsewhere on my person; a showing of adult acne, a shrivelly little relevance of it, confined to the declivity of my nose); and so to be polite, the woman thus sank her gaze into her sandwich, and told me, in a voice lowered accordingly, that, one late-childhood summer, she had devoted herself to collecting postage stamps: it was a tongue-involving sideline to early-arriving puberty, and she liked having to lick the pale, gummed hinges instead of the sticky backs of the stamps themselves before entering everything into the hosting album; and once, during some foul weather between her and a brother (the older, thrown-over one, who had already made a habit of fooling the underside of his arm across the top of hers and calling her "pussified"), she reached for the shoe box in which she had let duplicate stamps accumulate—Spanish ones, mostly, of a fading orange—and sent the box slooshing through the lower air so that the stamps showered onto the brother's bare legs with a full, delicate harm. The woman was now touching up the surface of her iced tea with tiny activities, initiatives, of the longspun spoon. I myself was good at getting my touch onto things, although in a way that seemed to mix up the motive atoms inside [163] them, but I was satisfied that for the moment my sandwich, the unbitten-at half of it, was displayable and fit and local to my plate. The woman went on to say that, as a child, she had been bundled off, many an afternoon, to the slope-ceilinged quarters of a bachelor uncle who, when speaking of anybody not immediately present, could not bring himself to use the person's name but instead would say "an acquaintance of mine in ..." and then mention the name of some lapsed homeland, or little-loved rural orchestra, or backset building about to come down; and it was never a riddle, this device of his (not once could the girl have been expected to identify any of the subjects), and no matter how often and aloud he insisted that particularizing persons any further—bringing even a first name down upon anyone of them—would have been indecent, he claimed, much like doing things to people while they slept, the girl accepted all of the uncle's prim and extravagant evasion for what he surely must have intended it to be: a neat, protective trick to space the world out a little further in her favor, to scatter the population so that wherever her hand might at last come down, it would have to be on herself alone. And here I could sense that the woman wanted from my mouth an account of as much as I myself might have ever managed of attachment, so I told her I had once owned a house (a rising, really, of much-fingered, handwrought architecture that amounted to a little family of rooms above garages: a boxlike building with a rattly thorax of downspouts [164] and drainpipes and an unfolded but full-toned fire escape), and I had had for a time a boarder, a student, a high-colored, loose-packed representative of declining girlhood, hung with necklaces and barrettes, a girl of precise but shifting leanings and inclinations; and the afternoon she had come round to ask after the room, I stood in the entranceway, handshaken and asweat, and from what would later be my memory of the girl, I made off with, first, how every pore of her nose seemed to be sheltering within itself a tiny dark seedlet, a grain of something immediately, enormously valuable. And an almost lipless mouth (just a slit, practically), the teeth inside looking wet, watered-it was my life's chore, at that instant, to keep from sending the back of my thumb blotterlike across the line of them (I was later to learn she drank everything cold and through the narrowest of straws). And her hair: it was tea-colored hair she had, long and reachful, an unstopped downcome of it. Tall for a girl, but she managed to stay out of much of her height and put herself across as somebody backward, or behind. I must have told the girl, as best I could, that I of course had a wife, a full-faced, imperishable partner, though for the moment she was gone otherwhere in the marriage, and here the woman, my present companion, my tablemate, whose feet were now parked, in parallel, on the grade of my upper leg, interrupted to say that her husband, too, had been such a liar, and what could I bring up by way of reply other than that a lie is a truth struck through with other, further truth, or that a lie is the present multiplied by the past or that a lie [165] is an outcry of borrowed hope? The woman gave me an allowed look of disgust, her eyes lowered but still popular with me, and on I went with what had now become the girl of my story. For there had been a great, gainful carpet in the room I put the girl into, a matty expanse of coarse, grabby piles, an engrossing affair that took things into itself and held them tight, misered them, and I of course insisted that the girl not bother herself with its upkeep, that I enjoyed weekly access to a prestigious, upstanding vacuum cleaner; but no sooner was the girl out of the house each morning than I would withdraw from my room, where time was unportionable, and loose myself into the ticktock impertinence of the girl's room and get down on my knees, and, going after the carpet first with my fingers, then with a forceps, and finally by unspooling lengths of clear package-sealing tape and pressing them against the tufts in neat rectangles to catch what I might have missed, I brought vast tracts of the carpet to depletion, recovering not simply the girlinesses, the girleries, one would expect (buttons, straight pins, downed jewelry), but flirtier personalia in the form, say, of a stray confetto brought into the world when a page had been wrung with out caution from a spiral-bound notebook, or some pleated paper shells of the chocolates she required, or one of the bargain antihistamines she took to get her naps going, or a trash-bag tie ragged enough to show the kinked line of the wire within (this I would get wound around my finger), or a cough drop enwrapped like a bonbon (I would undo the [166] wings of the wrapper and have to decide whether to suck the drop all down or begin chewing it midway)—I became the following, the public, that these things, these off-faIlings, had come to have; but mostly there was hair, afloat above the uppermost pushings of the fabric of the carpet an almost continuous haziness of loose hairs of all lengths and sources, and I would have to set them out on a fresh sheet of paper and assort them according to the regions of the body they had taken their departure from, and in no time I had nest-like filiations of broken filaments and smaller involvements of the hairs that made me think of hooks, of barbs, of treble clefs, and each pile required a separate envelope, to be filed in a separate shoe box for every sector of the body until, I hoped, the boxes themselves would no longer be enough and I would have raised something semblable, brought up something equal in volume to the comprehensive girl herself. And her wastebasket! For every bit of rubbish, every dreariment she tossed into the thing, I would, in secret, deposit a reciprocal discard of my own, matching a spotted, confessory tissue of hers with a lurid throwaway after my own heart–the cardboard substructions of a fresh parcel of underwear, maybe, or tearings from pantyhose I now and again pressed against a span of my forearm to work onto it the complications of female shading I otherwise made do, choosily, without. I thus built the two of us up together in her trash! One afternoon-it was another of those lifeful, unsam-[167]pled days on which the world humors us each a little differently to keep us nicely on our last legs—I discovered in the wastebasket an inch-deep textbook of hers, a paperback with a celery-colored cover that had come partly unglued, and this dilapidation I paired off, naturally, with a name-your baby guide to whose pages, during my recurrent turnings of them, in bed or at table, I had contributed dried produces of my person, a chemical splendor entirely mine. This coupling sent a sudden spigoty thrill from me that forced an unbuckling and an unzipping and a cleanup with a handkerchief I then ventured responsively into the wastebasket as well. It was in the bathroom afterward that I found a suds-clouded puddle on the unlevel floor of the tub, a little undrained remainder, rimmed with offscum, of the girl's prolonged early-morning soak, and this was as much as I needed to get on my hands; I pressed them flat against the wet porcelain, then flapped them around in the air, and that was when I noticed it—in the amphitheater of the toilet bowl, an orange-yellow tint, or value, to the waters. When the girl arrived home that evening, I told her, of course, that I had discovered fresh, unforeseen trouble within the tank of thelet (a misalignment of the trip lever, a waywardness of the float ball, a ulation of the lift wires, kinks and defects, really, throughout the entire system) and that in fine it was an apparatus now operable only by means of advanced and strenuous equilibrial manipulations that it would be unseemly, inhospitable, of me to pre-[168]sume to burd to burden her with–so that from here on out, following any leak or evacuation she need merely lower the lid and then, before quitting the room, ring the handbell that had been placed on the would seeeverythinghing else. But the bell never rang, not even once, and from my window the next morning I watched the girl carry from the house a little plastic bag distended balloonishly, much like those bags you will remember having seen in the hands of children bearing homeward their solitary carnival-prize goldfish. In fact, I never ran across the likes of the girl again. The man who came to collect her things-not the father, apparently, but an advocate, an upholder-l found to be dull-eared and lax in his speech, and the better part of his face seemed to have already begun making tiny, rotational departures from whatever it was that the eyes, themselves impressively mobile, were just that moment having to take in. (Was there a lamp in the house that was not that night slopping its wattage over everything?) I guess I was waiting for the man to take a laggard, last-minute interest in me, and by now I was pushing everything out into the paired first person–it was, I said, “Our night shot,” and I began including the two of us in whatever it might be doing out, the expected sprinkles and such—but he was no friendship buff, and he paid no heed to my telling him that the only dress of hers I'd ever twidged myself into even part of the way had been the simplest of them all, a large-buttoned wonder of depthless blue, and then only on the principle that one naturally fits whatever one has into whatever somebody else [169] had first, or how else would the world keep getting any taller with people? The man just went about the removal of the girl's things without having to be reminded too noticeably, I guess, of how every dick hangs by a thread. My listener, though, had by this time brought about some becoming slowings of her arm—it was an arm inclinable to langorous diagonals and magicianly swoops through the air above the tabletop—but it no longer was involving itself with her plate, so I suggested we shove off, I made payment for the food, and on our way to the car, and then in the car as I took to following her pointings, the directional tilts of her head, she said that you naturally kept putting more and more of yourself into another person, at first wondering how much she can take, how much of you is accumulable and how much she can hold, and you're letting things out, disbursing yourself, and you've soon got things set up in her, and room is being made for even more of you, and if you bring this off with enough people, even two or three, what you've got is at first a comfort, because you can pass yourself along and move a little more widely through the world and leave it to these others to man your grievances, your disappointments; and what brought this to mind, the woman said, was a term of financial hardship she had contrived for herself a few years back, an unpaid leave of absence from scrupling letter grades onto quiz papers (propped-up As, and upended Bs made to look, rather, like fannies; all As and Bs, no Cs or anything lower, the difference between an A and a B having less to do with the accuracy of whatever facts might [170] have been impounded in provided for an answer than with anything recallable about the way the enrollee ad conformed her body to the confining perpendiculars of her chair and the navel-level writing surface that projected from it, or the way there might one day have been an unignorable blush on the instep of a once-moseying foot, disburdened of its shoe, that had got itself trapped in the grillwork of that cagelike involvement, intended for books, that was welded to, or otherwise schemed into, the underworks of the chair)—this had been a duration, in short, of controlled difficulty when the misexpenditure of even a twenty-dollar bill had set her thrilling, gloating, over everything she would miss out on, and one afternoon she had made an engagement for a haircut, just a trim, and very early in the session the haircutter, a woman ill-defined in the face but otherwise full of conspicuities of emotion, set down the prevailing scissors and pressed the flat of a lukewarm hand against the woman's cheek, held it there for a good minute or longer, while the other hand eventually found its way into a drawer, a shallow treasury of slender specialty scissors, one pair of which the cutter withdrew and began routing deductively through the woman's hair, the other hand staying put on the cheek, longer and longer, and the woman went home and for afterward the bathtub was now a more likely destination than any of the upright furniture, and it got easier to fill the tub with further clarifying volumes than to clear space on the difficult heights of the sofa, and she was hardly claiming to have become a cleaner [171] person in result—she in fact would often discover, voyaging about her body, a browned, fractionary detail of a larger crepe of toilet tissue that must have got itself stuck in some assy crevice and was impossible to get plucked out of the revolving suds—she was saying only that she spent more and more of her time thus immersed, ill off in water, and the haircutter had surely had a hand in it, the woman was doing some of the cutter's life now, coming into some of its wrong, because you sometimes have to look to somebody else's life to get dimensions set back even part of the way around your own, and it should not have to be any less your own life when it comes from somebody else, and you could surely fudge a society out of anyone available person and get this person doubling for the many, so that in the little run of things perpetuable from one person to the next, every loose moment stood to become a complete, active finality. But by now this was a new day, with only an hour or so off it already, and the place the woman had made me bring us to, the man's place, with a promise that the man was elsewhere—this was on a little offshoot of a street, a stewy efficiency apartment the color had long ago gone out of; and when, once in bed, still clothed, I found among the sheets and blankets a spoiling pair of the man's underpants, one of the leg openings of which was puckered into an avid, sloppy mouth, I held myself accountable for redisposing the fabric until I got a befitting featurelessness back onto it; but all the while, I am sure I had to make myself go over again in my mind that if the body is the porter of as many organs of affec-[172]tion as there might one day turn out to be, then the idea was to let the thing carry you to where you would otherwise never have any reason to arrive, because I listened for the unmelodiof the the thede ofthe woman's zipper, and then the woman made me put myself out of my own clothes, the attritional corduroys and overshirt, and got herself up at last onto the topic not of the man whose apartment it was (because his story was scarcely the story of how the boy who decides he is half a girl no sooner starts to worry about where the other half might than he gets careless with where he rests his eyes, or what he gives even the feeblest of fingerholds to, and anything, even a crumbly triangle of pie offered on a saucer instead of on a pie plate proper, comes in easy, ready, wronging answer), but of her husband, and how, no more than a couple of months into the marriage, he had begun snugging away in his undershorts a little source of chanc, reliable frictions to nudge him onward through the workday—anything company-keeping that could be counted on not to slide out of the elasticky leg holes: a half-dollar packet of chocolate tittles, maybe, that was barely noticeable in the baggy surround of the widecut trousers so popular at the time. For by now the woman had at last brought what is usually called the other mouth to within only inches of my lips, but it is not a mouth, obviously, although I let myself go along with the goodwill behind the comparison, the way I will remain loyal to anything deliberately and faithfully misunderstood, and I fussed my tongue against the vital trifles hung inside of her, as much of the curtailed finery as I could find, [173] and gave the whole insimplicity of it a slow-circling, examinational lick, until I was taking a sudden tepid downwash on the tongue. It was a familiar, latrine in dribble that must have tasted, no doubt, like trouble just starting out.p [1] Editor's Note: Original pagination from first edition print denoted with bracketed page numbers. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:133. HUME ON RESENTMENT In his Enquiry version of the conditions of justice, Hume adds a third modified Hobbesian condition to the two, moderate scarcity and moderate selfishness, which he had listed in the Treatise. The new condition is a certain measure of equality, or limit ±o inequality—justice is owed, he says, only if there is a society of more-or-less equals; and only to those who are members of (...) it. The equality in question concerns the ability of candidate societymembers to make us feel the effects of their resentment (E190). If such ability is lacking, then, Hume says, the relationships between "us" and "them" will be those of absolute command on the one side and servile obedience on the other. Whatever we covet, they must instantly resign: Our permission is the only tenure, by which they hold their possessions : Our compassion and kindness the only check, by which they curb our lawless will (Ibid. ). This passage is interesting because Hume describes the position of such powerless creatures intermingled with men in terms which appear to be social —command, obedience, possession, tenure, the act of "resigning" coveted goods. But he says that our intercourse with them could not be called society, which supposes a degree of equality (Ibid. ). True society is, then, restricted to those who are roughly equal, whose interests help to determine the conventions which give rise to duties of justice. But intermingled with the members of such a real society there might be, were or are, a species of creatures, who, though rational, were possessed of such inferior strength, both of body and mind, that they were incapable of all resistance, and could never, upon the highest provocation, make us feel the effects of their resentment (Ibid. ). They are "rational", so can obey, can resign possessions, and can resent their inferior status. They have quasi-social relations with their masters, but not fully social ones, since they are neither parties to nor bene- 134. ficiaries of the social conventions which create rights and duties. Hume seems to assume that because they are not parties to the artifice-creating conventions, those conventions will not cover relations with them, so that the conveners' "laws" are limited, and allow them a sphere of "lawless will" in their dealings with the inferior creatures. But children, for example, while not legislators, may be both right holders and beneficiaries of the laws which adults agree on. Hume is most charitably read here to mean that the conventions which serve the interests of the superior creatures might not, cannot be depended on, to regulate in any way the dealings of the superiors with the inferiors. They are left at the mercy of their superiors, resent that fact, and yet may be powerless to alter the situation. It is very clear from what follows that Hume has in mind in this passage the relations of males to females, and that it is his thoughts about male-female relationships which led to his emendation of his Treatise account of the conditions of justice. The Treatise had not mentioned equality of power as a condition for justice, but had devoted a chapter to the extra obligations, of chastity and modesty, which social conventions imposed on the female sex. It was therefore a natural question to arise for Hume whether women really could be parties to conventions which imposed these obligations on them. Were their interests served, or did these obligations arise from "the voluntary conventions of men, " (T510, emphasis added) who asked themselves What restraint, therefore, shall we impose upon women, in order to counter-balance so strong a temptation as they have to infidelity? (T571). Hume had argued that female fidelity was needed for male paternal obligations to be properly assigned, so that it was in the interests of children, of fathers, and of society in general, that fatherhood be determinable, and so that wives be chaste. Now, in the Enquiry, he considers the possibility of a class of slaves whose interests, like those of animals, need not be considered 135, in the conventions which generate duties of justice. The great superiority of civilized Europeans above barbarous Indians, tempted us to imagine ourselves on... (shrink)

We argue on consequentialist grounds for the transfer of Sandai, an orangutan, to an orangutan sanctuary. First, we show that satisfying his interest in being transferred brings far greater value than the value achieved by keeping him confined. Second, we show that he has the capacities sufficient for personhood. Third, we show that all persons have a right to relative liberty insofar as they have interests they can exercise only under conditions of relative liberty. Fourth, we show that (...) individuals need not be able to assume social obligations and duties in order to be rights holders. -/- Our argument reflects commitments, as we say, to consequentialist reasoning about moral problems. However, we note that influential representatives of the other dominant ethical traditions—the deontological and Aristotelian traditions—reach our conclusion, too. It makes no difference, in this instance, which ethical theory one adopts. Under all of them, Sandai is a person with an interest in relative liberty entitled to habeas corpus protection. (shrink)

To show that discrimination against the terminally ill is a real and worrisome phenomenon Reed presents four examples1. Here, I focus on the final two: right-to-try and right-to-die laws. I argue that they are not instances of discrimination, because they grant rights. Reed appears to have overlooked that rights differ from obligations in ways that leave his argumentation unsuccessful. According to the most prominent theory of rights, rights function to protect the personal interests (...) of their holders.2 For that reason, strengthening rights implies weakening discrimination. Granting women the right to vote by itself meant that they were being less discriminated against. Rights also fail to meet standardly accepted definitions of discrimination. As Reed explains, for discrimination to occur, it is necessary that a significant disadvantage is imposed on a socially salient group. Policies can impose disadvantages by being obligations. While rights sometimes enable disadvantages, they never impose them. More precisely, rights may entitle their holders to subject themselves to disadvantages. The right to try entitles the terminally ill to subject themselves to harms caused by investigational drugs. The right to die entitles the terminally ill to voluntarily subject themselves to the deprivation of life. Contrast this with a policy that requires the terminally ill to take investigational drugs. Such a policy would be discriminatory. Whether rights can nevertheless …. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of (...) consent and informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of (...) consent and informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

In conclusion, I have tried to show that if there are any rights at all, legal, moral and political, there are at least the sorts of human rights cited in the Universal Declaration, rights which extend beyond the slender base provided by Hart's right to be free and which include the right to an adequate human life for everyone, rights shared by all, rights that, as rights, imply correlative duties. Even though the duties thus (...) implied are admittedly imperfect, as rights, they confer upon right-holders, the authority to obligate others.I have argued for the most part against regarding any rights, even some human, rights (interchangable here with manifesto rights, welfare rights, rights of recipience, social and economic rights, “programme rights,” Fawcett calls them, positive in rem rights) as claims to rights or proposals for adoption as rights. I have argued that to have a right of any kind, including especially a human right, one shared by and held equally by all human beings,while not “unconditional” or “unalterable,” is “fundamentally important, ” - to return once again to Feinberg's definition at the opening of this paper. A human right is fundamentally important, however, only if it, too, implies an obligation on the part of other people, one in which other people are obligated to use their power and resources “to make things happen.” To havea right is to be in a position to impose corresponding obligations on others. As Kant pointed out, a right of any kind gives a right holder “a title to compel.” From Kant's Philosophy of Law, in C. Morris, The Great Legal Philosophers, University of Pennsylvania Press, 1959, pp.242–243. Kant points out that every right is conjoined with “an implied Title or warrant to bring compulsion to bear on anyone who may violate it in fact” p. 242. And, “with every right ... there is conjoined a Right to compel.”. (shrink)

Translated by Drew S. Burk and Anthony Paul Smith. Excerpted from Struggle and Utopia at the End Times of Philosophy , (Minneapolis: Univocal Publishing, 2012). THE END TIMES OF PHILOSOPHY The phrase “end times of philosophy” is not a new version of the “end of philosophy” or the “end of history,” themes which have become quite vulgar and nourish all hopes of revenge and powerlessness. Moreover, philosophy itself does not stop proclaiming its own death, admitting itself to be half dead (...) and doing nothing but providing ammunition for its adversaries. With our sights set on clearing up this nuance, we differentiate philosophy as an institutional entity, and the philosophizability of the World and History, of “thought-world,” which universalizes the narrow concept of philosophy and that of “capital.” We also give an eschatological and apocalyptical cause to this end, of “times” or “ages” rather than those of philosophical practice. Last but not least, it is the Future itself in the performativity of its ultimatum that determines this end times, reversing these times from the Identity the Future accorded to it, withdrawing the thought-world from the lie of its death. Why this style of axioms and oracles, these more or less subtle distinctions, old and debased, with an appeal to the ultimata , to end times and last words? We fight to give, parallel to the concept of Hell, its new theoretical position, for its philosophical return and its non-philosophical transformation. No more so than any other word, Hell is not a metaphor here, just the Principle of Sufficient World. Every man, no doubt, has his “hell” readily available, connivance, control, conformism, domestication, schooling, alienation, extermination, exploitation, oppression, anxiety, etc. We have our little list that the Contemporaries established in the previous century in the same way one used to construct lists of virtues and vices or honors and wealth. They invented it for us without knowing it, for us-the-Futures who have as our responsibility to invent its use. In the Christian and Gnostic tradition, the struggle of the End Times takes place “on earth.” The most sophisticated of believers have it taking place in Heaven as well, above all in Heaven. The various kinds of gnosis imagine infinite falls and vertiginous highs, the vertigo of salvation. On Earth as in Heaven, a hell is available. The Marxists have the law of profit and the control of production, the class struggle Capital imposes on man. The Nietzscheans, the dull grumble of the struggle in the foundations of World and History, the domestication of man, the society of control. The phenomenologists, the capture of being, the most superficial amongst them, the age of suspicion. But all of these “hells” are taken from World, History, Society, and Religion. What we call Hell is no longer of the order of these specific and total intra-worldly generalities, it is both more singular and more universal, no longer being at all of the same order, it is the determinant Identity of these small hells strung out through history but unified here in the name of the last Humaneity. It is even found within the French idiom for hell [ enfer ], en-fer literally means “in-irons.” We are as much “in-irons” as we are “alive” [ en-Vie ]. We believe in Hell but as non-philosophers and it is even because we are non-philosophers that we can believe in it outside of any sort of religion. Hell is less mythological than ideological, it combines philosophizability with universal capital. Under what form? A single term could work for them without being a metaphor or something they would participate in by analogy, a more innovative and conjectural term than control, more universal than profit. It would denote the growing and permanent extortion of a surplus-value of communication, of speed and of urgency in change, in productivity and in work, in the pressure of images and slogans. It would be worse than solicitation, more tenacious than capture, more active and persecutory than control, softer and more insidious than a frontal attack, just as perverse as questioning and accusation, less brutal and offensive than extermination, less ritualized than inquisition, it would be soft and dispersed, instantaneous and vicious, it would be a crime without declared violence. Collusion and conformism, it would be afraid to show itself. Related to rumor, from which it borrows its infinite and tortuous ways. It is harassment. As a modernized form of Hell, perhaps harassment has a long future in front of it, of innocent torture, slow assassination, in short the fall, but radical with no way of recovering and which tolerates only salvation. THE PHILOSOPHICAL PAST OF NON-PHILOSOPHY Non-philosophy is thus Man as the utopian identity of the philosophical form of the World, a utopia destined to transform it. We still have to understand these equations, in particular that of the being-uni-versed from Man, and this book adheres to this by re-exposing non-philosophy in a different way via one of its new possibilities. It uses this opportunity to once again take up formulations that lead to objections answering certain external critics, as well as revisiting diverging interpretations specific to non-philosophers. A portion of this book is devoted to going through these theories via a strict or “lengthy” presentation of non-philosophy, and its defense against more expeditious solutions. This work of rectification is the occasion, merely the occasion, for refocusing non-philosophy on Man (the “Man-in-person,” “Humaneity”), and in a more innovative manner, on its utopian vocation established since the book Future Christ . As for this “occasion,” it is quite obvious. A school of posture, not to say a school of thought, supposes a minimum of closure from the most liberating of knowledge, a heritage, its utilization, and its no less certain dispersal. Within its development, a variety of interpretations will no doubt appear, deviations that are as much normalizations, and a struggle against this multiplication of divergent tendencies. These are perhaps not inevitable evils, especially here, merely a normal development according to the twisting paths of history. But the problem is made worse by the fact that this school of non-philosophers is that of utopia. Not the former attempts devoted to commenting on the worst authoritarian and criminal forms of the past and the present, but utopia as the determinant principle for human life, or to put it another way, of the Future as an irreducible presupposition of (for) thinking the World and History. Non-philosophers are engaged in an aleatory navigation between the respect for the most rigorous utopia, whose rules are not that of the reproductive imagination but those from the Future determining imagination itself, as well as the temptations, diversions, and remorse of history. Little by little, we will begin to understand that the Future as we understand it no longer has any temporal consistency or positive content, without being an empty form or a nothingness, but that it is foreclosed to past and present History, just as it is foreclosed to the place of places, the World, and that it is the only method for establishing the practice of thinking in a non-imaginary instance. Because it is the World and History that are imaginary and have a terrible materiality, it is not necessarily utopia. We will overlap two objectives here: the defense of non-philosophy against the (non-) philosophers that we are, only occasionally, and the introduction of philosophy to a rigorous future. Together they set out to definitively render, without any possible return to philosophical conformism or towards the facilities of the past and present, the non-philosophical enterprise understood as utopia or uchronia. Imagination and speculation, left to themselves and thus undistinguished, are quite good for participating in the grand game of History but have little value or worse for the Future which is unimaginable and unintelligible and must be maintained as such. MAN-IN-PERSON AS SUSPENSION OF THE PHILOSOPHICAL CHORA The point where philosophical resistance is concentrated is without a doubt the invention of the Name-of-Man, first name, oracular as much as axiomatic, of the determining cause for the non-philosophical posture. And that which concentrates the differends is the style of non-philosophy as identity that possesses the dual aspect, of discipline and of the oeuvre, of the theorem and of the oracle. But the real difficulty in understanding the simplicity of non-philosophy is profoundly hidden in the depths of philosophy itself. Because philosophy, from Parmenides to Derrida, even Levinas, continues to be a divided gesture, without a veritable immanence, transforming its thematic contents of transcendence in also forgetting to transform the operative transcendence in the element from which the ontology of surface is established which we will call, in memory of Plato, the chorismos. The general effect of the chora literally gives place to philosophy, demanding binding and sutures to which we will once and for all “oppose” the Man-in-person, his power of cloning, and his future being. All philosophy contains a hinter-philosophy in which it deploys its operations and weaves its tradition like an understudy of a topographical nature and in the best of cases being itself topological. Philosophy as well consists of two levels, its pre-ontological operative conditions on the one hand, and its superficial theme on the other, it too has its presupposed, but is not aware of it or erases it within the unity of appearance named Logos. Rightly, the Logos, and its flash or lightning nature, possesses a “dark precursor,” the chora, which is as much a virtual image, and philosophy, dazzled by its own lightning flash, seems to completely forget about it at the same time it sets itself up within it. Non-philosophy risks taking this same path, of confusing what it believes to be the real with its phantom double, contenting itself to working on the thematic level of philosophy, not its surface objects and its idle chatter (we stopped talking about this a long time ago and in any case they are merely simple materials for inducing a work of transformation), but the transcendence-form of its objects. In the end it risks, through precipitation, taking back up the heritage of philosophy, a heritage of a misunderstood presupposed, even more profound than the play of transcendences. This is what the imperative of the radicality of immanence meant, to treat immanence in an immanent manner, not to make a new object out of it. And from here we get non- (philosophy) and its refusal of the Platonic chorismos , symbol of all abstraction, and thus all transcendental appearance. There are no illusions. The message will leave a heritage in tattered pieces and interpretations. But it was difficult not to dispute the differend to its core. There will be complete confusion of the multiple, possible, and necessary effectuations of non-philosophy with its interpretations. The non-philosophical or human freedom of philosophical effectuation and the philosophical freedom of interpretation. Effectuations demand non-philosophy to return to zero from the point of view of its philosophical material and thus also but within these limits the formulation of its axioms , but in no way providing from the outset divergent interpretations of the aforementioned axioms. They are divergent because they do not take into account the material from which these axioms are derived within non-philosophy, and because they do not see themselves as symptoms of another vision of the World. The utterances of non-philosophy are not mathematical theorems and pure axioms, they merely have a mathematical aspect . They are, by their extraction or origin, mathematical and transcendental. And by their determined function in-Real, within non-philosophy, they are identically in-the-last-Humaneity entities which have an aspect of an axiom and an aspect of interpretation (or an oracular aspect as we say) that attempts (sometimes it is ourselves who provide the occasion) to isolate and transform, in complete freedom of interpretation. There will be an opportunity to complain about the complex character of the language of non-philosophy, an idiom saturated with classical references, sophisticated in a contemporary way. Its freedom of decision up against the whole of philosophy demands these effects of “complication” and “privatization,” as the saying goes. But it also demands fighting against the drift [ dérive ] of the pedagogical-all and the mediatic-all that leads philosophy into the shallow depths of opinion, which is the site of its impossible death. The noble idealism of “pop-philosophy” has been consumed into a “philo-reality;” against this we propose philo-fiction. Parricide, which is at the bottom of these interpretations and which we can judge as being quite fertile, although it has informed tradition, only takes place once or within one lone meaning. In regards to Parmenides, it was possible; Plato introduced the Other as non-being and language, bringing into existence the philosophical system of the World, but is it possible to repeat it again with the same fecundity in regards to non-philosophy, this time in introducing (non) religion or (non) art, still mixing them without taking into account this mixture, alternatively as a philosophical or religious resentment? If philosophy begins via a crime, it is no doubt obliged to continue down similar pathways, to the effect that the crimes of philosophy, once the founding crime has been committed, are a reaction of self-defense. It is undoubtedly from this that we get Marx’s declaration that history begins by tragedy and repeats itself or ends in farce. The preservation of rigor and fecundity is, in every respect, a psychologically difficult task within a theory such as non-philosophy. Having posited an essential objective of liberation in regards to philosophy and its services, one has often understood this objective as an authorization of providing particular interpretations of its axioms and ends up obliterating their scope. This ends up confusing, on one hand, two kinds of freedoms in regards to non-philosophy, the freedom of its interpretations and the freedom of its effectuations. On the other hand, any defense of “principles” against precipitated interpretations is immediately taxed with a will to orthodoxy, a prohibitive objection when we are dealing with, as is the case here, a heretical theory of thought. Nevertheless, it is time to stop confusing heresy as the cause of thought with an ideology of heresies, which is certainly not at all our object, but rather a form of normalization. As for the “disciplinary” aspect, which is not the only aspect, it demands something other than philosophical “answers to objections,” a precision in the definition and use of its procedures in the formation of utterances, since non-philosophy is neither a supplementary doctrine interior to philosophy nor a vision of the world but one whose priority is a “vision of Man,” or rather Man as “vision” that implies a theory and a practice of philosophy. In the end, struggle is only one aspect of non-philosophy, not its whole or telos, struggle coming only from its materiality. In particular, if the discipline of non-philosophy is inseparable from struggle, it is not a question of reducing the monomaniacal obsession of its “marching orders.” This would reduce its complexity and kill its indivisibility, deploying it in a “long march” and a form of Maoization whose philosophical presuppositions no longer have any pertinence here, a case of the One and the Two, which are now cloned and no longer tied together. More generally, non-philosophy is a complex thought composed of a multitude of aspects, which is to say, unilateral interpretations, of a philosophical origin but reduced by their determination in-the-last-instance . The “liberalism” of non-philosophy is merely one of the aspects of which it is capable, not an essence. Similarly, it is only capable of having a “Maoist” aspect. Let us generalize. The weakness of non-philosophy is due to a specific cause, the determination-in-the-last-Humaneity of a subject for the World. Everything that has a right to the philosophical city can be said about it in turn and in a retaliatory mode since Man contributes nothing of himself that Man takes from the World. We can consider non-philosophy as being pretentious, absurd, idealistic, empty, materialistic, formalistic, contradictory, modern, post-modern, Zen, Buddhist, Marxist; it endures or tolerates, perhaps “appeals” to, or at least renders possible, sarcasms, ironies, and insults without even talking about the misunderstandings, partly for the same reason as psychoanalysis. All of this goes beyond simple “deviations.” They are its aspects, which is to say, its “unilateral” philosophical interpretations in both senses of the word, being either sufficient coming from the mouth of philosophers, or reduced to their absolute dimension of sufficiency and totality in the mouths of non-philosophers, and both times due to the weakness and strength of Man-in-person as their determination only in-the-last-instance. The non-philosopher is certainly not a Saint Paul fantasizing about a new Church. The non-philosopher is either a (Saint) Sebastian whose flesh is pierced with as many arrows as there are Churches, or a Christ persecuted by a Saint Paul. What is engaged in here is the practice of retaliation. A negative rule of the non-philosophical ethics of outlawed discussion by way of argumentation (the sufficient is you, the orthodox one is always you, you are the fashionable one, and when a master you are someone else) that is founded on the confusion of effectuations of non-philosophy and of its overall interpretations. Retaliation is the law but as with any too-human law, it must acquire a dimension that displaces it, or rather emplaces it and takes away its authority but not all of its effectiveness. If the non-philosopher is only authorized by himself, which is to say by philosophy but limited by the Real-of-the-last-instance, its critique of other non-philosophers can merely be retaliatory under the same conditions, only by the Real limited in-the last-instance. THE TREE OF PHILOSOPHICAL SAINTLINESS The thematic horizon or material of these debates is in the relationships between philosophy, religion as gnosis, and non-philosophy. It is inevitable, regarding non-philosophers in general (whether they are non-philosophers by name or simply its neighbors) that we often end up evoking Marx’s Holy Family and imagining, arranged on the neighboring branches of the tree of philosophy and annexed, sometimes abusively, to non-philosophy, authors who would quite evidently and quite rightly refuse this label. So it is that we find, for example, a Saint Michel, a Saint Alain, a Saint Gilles 1 without even mentioning the youngest who aspire as well to the freedom of “saintliness” and who make their muted voices heard here. If there is a Holy Family of non-philosophers, it extends completely beyond these three, provided that the sectarian spirit can save us. This book is organized in the following manner: To begin, in order to recall the essential part of the problematic, we have organized a Summary of Non-Philosophy , a vade-mecum of notions and basic problems, in a classical style. Secondly, there is Clarifications On the Three Axioms of Non-Philosophy , designed to posit their proper use as much as to elucidate their meaning. Thirdly, an analysis of Philosophizability and Practicity , both being extreme constituents of philosophical material or the contents of the third axiom. Fourthly, the heart of this work: Let us Make a Tabula Rasa of the Future or of Utopia as Method . Fifthly, we have a theoretical outline of a non-institutional utopia, The International Organization of Non-Philosophy, L’Organisation Non-Philosophique Internationale, (ONPHI) already created in practice but under the conditions of possibility and functioning from which here we put into question “de jure,” thus not without a perplexity concerning “facts,” in any case, without the capability of “getting to the bottom of things.” Sixthly, an essay characterizing The Right and the Left of Non-Philosophy , a brief topology of several philosophizing and normalizing positions of proponents or tenants of this problematic. Seventhly, Rebel in the Soul: A Theory of Future Struggle , a systematic discussion starting from a confrontation of non-philosophical gnosis and non-religious gnosis to the extent that they pose, posed or perhaps still will pose themselves as rivals to non-philosophy in a mixture of fidelity and infidelity. Despite the fact that it can also be read as putting non-philosophy into perspective: it pits against a standard Platonism two contemporary appropriations of Gnosticism. On the basis of the paradigm of Man who never ceases to come as the Future-in-person, each one of these moments strives to reestablish not the “true” non-philosophy and its orthodoxy, but the minimal conditions to respect in order to allow for its maximum fecundity. And in order to bring about one of the last possibilities of its development, making explicit Humaneity as a utopia-for-the-World. In introducing these considerations in the form of a “testament” and “ultimatum,” we want to indicate two things: First, that this is the last time we will intervene in order to caution non-philosophers against the temptation of returning and looking backwards towards philosophy. Only a disillusioned nostalgia for the former World and its traditions barely remain permissible to us.… Secondly, that non-philosophy is also a sort of ultimatum for considering one’s life and transforming one’s thought from the perspective of a uni-version rather than a conversion. Man as future is this ultimatum in action, not an impatient self-proclaimed genius, and philosophy is his testament. It is obviously the ultimatum that determines this testament as “old” with a view towards a life that is, itself, non-testamentary. In and of itself, the “old” can never bear a veritable eschaton. Thus, this book intersects according to the logic of this paradigm, under the sign of the ultimate or “last” as future, philosophy as testament and cautionary note for maintaining the non-philosophical oeuvre as “future” or “utopian.” We will see that between these two dimensions it cradles a theory of struggle. In the end, this book envisions non-philosophers in multiple ways. It inevitably sees them as subjects of knowledge, most often academics insofar as life in the world demands, but above all as close relatives of three great human types. The analyst and political militant are quite obvious, for non-philosophy is close to psychoanalysis and Marxism insofar as it transforms the subject in transforming philosophy. Here again, one must have a sense not of certain nuances but of aspects (of the interpretations, albeit unilateralized) and not in order to construct a simple proletarization or militarization of thought as theory. To be rigorous, rather than authoritarian or spiteful, is its task. And lastly, non-philosophy is a close relative of the spiritual but definitely not the spiritualist. Those who are spiritual are not at all spiritualists, for the spiritual oscillate between fury and tranquil rage, they are great destroyers of the forces of Philosophy and the State, which are united under the name of Conformism. They haunt the margins of philosophy, gnosis, mysticism, science fiction and even religions. Spiritual types are not only abstract mystics and quietists; they are heretics for the World. The task is to bring their heresy to the capacity of utopia, and their utopia to the capacity of the paradigm. NOTES We will recognize allusions, and sometimes references, to closely related or distant themes, but which are related, in the work of Michel Henry, Alain Badiou and via the representative of “non-religious” gnosis of a Platonic origin, in Gilles Grelet. It goes without saying that these discussions are current and local, neither concerning the ensemble of doctrines nor prejudging the eventual evolution of certain amongst them. This concerns defining certain proximities with non-philosophy (rather than adversaries which in some sense they are) and typological and emblematic differends (rather than conflicts with a certain author). (shrink)

Human rights law has been called upon to help with the problem of persistently high greenhouse gas emissions. An obligation on states and other legal entities to lower their emissions (mitigation) is said to be deducible from that body of law. I refute this thesis. First, I consider two practical difficulties—causality and non-triviality—that face a plaintiff who, with emission mitigation as the objective, attempts to prove a human rights violation using the regular pattern of proof for a (...) violation. Proponents of the “human rights approach” to mitigation have held that proof of an emission “contribution” by the defendant together with proof of an “impact” by climate change on the plaintiff’s human rights are sufficient to discharge the evidentiary burden for the proof of causation. The rest of the causation chain is simply presumed. Thus, the original proof pattern for a human rights violation is abandoned. The proponents’ answer to the triviality difficulty has been to aggregate emitters into very large entities and sue _them_. However, aggregation can be shown to lead to a _reductio ad absurdum_. In my argument’s second part, I identify a more fundamental difficulty with the human rights approach to mitigation: The defendant’s emissions do not amount to a norm violation. Everyone contributes emissions without legislative or other prohibition. Treaty law on climate change itself recognizes emitting behaviour as lawful and permits the continuation of state emissions through to at least 2050. A rise in global warming from preindustrial levels to 1.5° Celsius with room for an even greater rise to close to 2° Celsius has been _budgeted for_ by the Paris Agreement on Climate Change. The setting up of a budget affirms the normalized status of within-budget emissions. This universal license to emit denies the human rights approach to mitigation the very conditions of application of human rights law. (shrink)

Photo by Alex Guillaume on Unsplash Introduction The problem of climate change raises some important philosophical, existential questions. I propose a radical solution designed to provoke reflection on the role of humans in climate change. To push the theoretical limits of what measures people are willing to accept to combat it, an extreme population control tool is proposed: allowing people to reproduce only if they make a financial commitment guaranteeing a carbon-neutral upbringing. Solving the problem of climate change in (...) the long run by halting the procreation of human beings is controversial. In the absence of human beings and consequent climate change, other animals and plant species would benefit from an atmosphere more conducive to prolonging their existence and even improving their ability to thrive. If someone were to invent something to reverse the effects of climate change and improve animals’ lives, then human beings’ presence would be justified by the invention. Whether the propagation of the human species is beneficial to anyone or anything but human beings themselves is difficult to answer. Perhaps human beings are unfit to tackle this issue, being unable to judge it objectively. Managing Procreation: An alternative to Piecemeal Approaches Measures aimed at reducing greenhouse gases by nudging individuals and corporations may have a positive effect, but if their behavior is not climate neutral, they continue to contribute to climate change. Consequently, as long as the number of people increases, reducing greenhouse gases is at best a mitigation tool. If humans could rely solely on renewable energy, decreasing the population arguably would not be necessary. Significantly reducing the number of people appears to provide a solution to both problems: people who do not exist do not contribute to climate change, and renewable energy could meet the demand of a smaller population. One option is to let only those who produce the problem pay for its solution. One could determine the expected annual emission of greenhouse gases per person, assuming an average life expectancy, and calculate the costs to compensate them by, e.g., installing extra solar panels. Those expected costs could then be paid by the parents of each new person annually over the first eighteen years of that person’s life by dividing the total expected costs by eighteen. There are also practical difficulties. It would be difficult to determine the payment necessary. What should be done if a child has been born whose parents cannot afford to pay? In addition, child benefits could be canceled, contrary to recent incentives for child births instated in Italy,[1] where additional benefits will be made available to pay for childcare, and Hungary,[2] where women with four children or more will be exempted for life from paying income tax. A transition period could exist once the policy has been adopted, since it would be unreasonable to confront those who are already pregnant with costs they could not reasonably have expected. While the analysis is both hypothetical and theoretical, the impracticality is a noteworthy obstacle. There are several practical issues that cannot be addressed here, like the difficulty of calculating the added negative effects of each new individual and the unlikelihood that many citizens will support politicians who propose adopting policies that discourage having children. The upshot of what I have proposed is that climate change can be solved in the long run without financial costs to society as a whole, notwithstanding the transitional measures that would bring costs with them. Managing Procreation to Reduce Suffering Should this be deemed too harsh a stance, it is important to consider the basic issue of whether it is justified to introduce measures to reduce the number of people in an already overpopulated world, especially if climate change leads to additional suffering. One need not agree with Benatar, but his perspective must at least be taken seriously: It is curious that while good people go to great lengths to spare their children from suffering, few of them seem to notice that the one guaranteed way to prevent all the suffering of their children is not to bring those children into existence in the first place.[3] Benatar argues that non-existence is preferable to existence,[4] which raises the question why new people should be created at all. Those who question whether this planet will be habitable for future generations presuppose that such generations will exist. If people are not brought into existence, they may be said to be deprived of what life has to offer, but life must not be presupposed to be something positive. Whether this is the case in fact merits an inquiry of its own. A solution to the problem of climate change despite an increased population does not equate to a positive outcome since it merely means that something negative is removed. After all, solving the problem is not a means to an end, but a means to a means, the latter means being a means to a happy life, which does not automatically ensue from a solution to the problem. Benatar, as an anti-natalist, argues that procreation is morally wrong. His basic idea is that there is an asymmetry between pleasure and pain and that the pleasure that is not experienced by someone because that person does not exist is not something bad whereas the absence of pain that is not experienced – for the same reason – is something good.[5] Accordingly, “The reason why we do not lament our failure to bring somebody into existence is because absent pleasures are not bad.”[6] One may question whether such a perspective suffices to prove that coming into existence is always a harm, but the assertion that coming into existence exposes a new being to potential harm is clear. Objections A drawback of the proposed radical solution, placing the financial impediment on procreation, is that it will not solve climate change in the short run. A significant drop in the number of people may have a positive effect in the long run, but for now the behavior of the people in existence is the problem. Other climate change mitigation policies would necessarily continue. Additionally, there are important practical reasons to continue to procreate. The benefits for the elderly are paid for by the labor force. It is a problem that new generations are created as mere means to benefit older people. Perhaps more troubling, a pyramid scheme is created: by the time those people have themselves become old, a new labor force must have been brought into existence, a process that must presumably continue. If a consideration for people in developing countries to have children is that they cannot provide for themselves at an advanced age, while benefits are either lacking or insufficient, developed countries could collectively fund a pension scheme.[7] This may be low-cost if it is tailored to the living standard in the countries in question and given the life expectancy. Such a pension scheme should be predicated on the countries’ efforts in reducing the birth rate. If the labor force decreases, the economy may suffer. The focus on economic growth is arguably one of the causes of climate change, but if the number of people is reduced, the living standard does not have to be compromised, since the economy can then still grow. If fewer people began to use natural resources and nonrenewable energy at higher per capita rates, then the procreation might not be beneficial to the climate. It would need to be accompanied by regulations on use. One may also object that only wealthy people will be able to afford children. This is correct, but there is no right to have a child one cannot afford. The right to procreate does not entail the right to have as many children as one wants.[8] Yet in many countries, like the United States, it is a fundamental right that is constitutionally protected. There are numerous social, emotional, and even biological reasons why people choose to procreate. These may include the joy of having a family, the hope that children may bring in society, and the intergenerational transference of knowledge. People may have a strong desire to raise children or even a religious duty. If someone procures a sports car that is highly polluting, it would be justifiable to impose a tax in such a case. Many taxes and fines are imposed on corporate polluters. Procreation is significantly different but if the issue is regarded with some distance, then a climate change prevention tax could be appropriate. Some may argue that raising children is expensive already, which nonetheless does not deter people from having children. The tax I propose would be additional and specifically dedicated to carbon neutrality, but it would be difficult to predict whether it would discourage procreation. One last objection may be that for those now dedicated to sustainability for preserving the earth for the sake of future generations, there would be little or no incentive to continue any climate change mitigation efforts at all. If they sense they cannot afford to procreate, they may simply use every natural resource rather than save the earth for animals or for next generations. In a democracy, this problem does not exist if the majority can afford to procreate and agree with legislation on the basis of which such behavior is discouraged or punished. CONCLUSION Prior to their existence, there is no obligation to bequeath the earth to next generations. Such generations will only exist if they are actually created, and there is no obligation to create them. The lack of existence should not be confused with harm. Climate change provides an important reason to stem overpopulation. Ironically, fast rates of procreation may lead to the earth becoming uninhabitable for humans altogether. The radical solution that has been proposed here is an unrealistic scenario. For now, the average global birth rate is just over 18 per thousand people, but there is a need to ensure that the number of people is not greater than the planet can endure. While it is better to prevent problems than to solve them, the interest in procreation and its associated joys, usefulness, and cultural value make mass reduction in the population unlikely. Some countries have smaller average family size than others and can act as models for reducing population in a less radical way. The need to continue efforts to reduce climate change persists. Whether it would curb population growth or not, an additional financial burden applied to neutralizing each person’s offspring’s carbon footprint provides a meaningful thought exercise that could help alleviate the pressure on current climate mitigation strategies. [1] The Local Italy, How Italy’s new ‘Family Act’ aims to increase the plunging birthrate, https://www.thelocal.it/20200612/what-you-need-to-know-about-italys-new-family-act/. [2] BBC, Hungary tries for baby boom with tax breaks and loan forgiveness, https://www.bbc.com/news/world-europe-47192612. [3] David Benatar, Better never to have been, 6. [4] David Benatar, Better never to have been, 44, 58. [5] David Benatar, Better never to have been, 14, 30, 38. [6] David Benatar, Better never to have been, 35. [7] Alastair Leithead, “Can Niger break out of its cycle of poverty?”, https://www.bbc.com/news/world-africa-41018081; Sebastien Malo, “Fewer children, fewer climate risks? Niger ponders a controversial option”, https://www.reuters.com/article/us-niger-climate-change-familyplanning-idUSKBN1WM11E. [8] Sarah Conly, “The Right to Procreation: Merits and Limits,” American Philosophical Quarterly 42, no. 2 : 105-115, 105, 106. (shrink)

Photo by Jonathan Ford on Unsplash ABSTRACT Since 2008, an average of twenty million people per year have been displaced by weather events. Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. This paper analyzes the idea of expanding a duty to rescue to climate migration. We address who should have (...) the duty and to whom the duty should extend. The paper discusses ways to define and apply the duty to rescue as well as its limitations, arguing that it may take the form of an ethical duty to prepare. INTRODUCTION Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. Examples of circumstances range from person-to-person intimate rescue to saving those in poverty, even in distant parts of the world.[1] Since 2008, an average of twenty million people per year have been displaced by weather events.[2] Circumstances like being thrust from homes under the threat of fire, mudslide, and flooding vary greatly from long-term changes like land becoming too arid for crops or temperatures increasing annually gradually pushing up the number of heat-related deaths, with the area slowly becoming uninhabitable. Imminence in fleeing affects resettling and need for rescue with important implications for how the duty to rescue might apply. This paper reevaluates the ethical framing of the duty to rescue and, while it is arguably a stretch, applies it to climate migration. Climate migration has become common and is expected to increase due to rises in sea level, increases in weather events that make areas uninhabitable, and changes to land that preclude farming or other necessary land uses. We argue that a duty to rescue may help highlight who has moral obligations to whom. Because the problem is so large in scope, we suggest a change in the ethical limits to humans' duty to rescue other humans who are in distress. We imagine an expansion or extension of the duty to rescue to meet some of the basic needs created by climate migration. Yet how it should expand, and how much depend on ethical framing and practical limitations. l. Expanding the Geographical Boundaries Two commonly recognized emergencies, Hurricane Katrina in the case of weather events and the current COVID-19 pandemic, provide a historical and current backdrop to evaluate ethical obligations as more disasters displace people. A significant reassessment of the ethical scope of an obligation to rescue in the case of weather events will be limited by the ability to render aid to those in distress in the case of a planet-wide weather catastrophe. The problems may overwhelm the ability to rescue or the reasonableness of attempting rescue. The extent of the moral obligation borne by humans to other humans in the case of a weather event has been largely defined by its locality and limited geographic influence. Whether we are imagining the scope of ethical obligation in the case of hurricane, flood, tornado, drought, or wildfire events, the perceived ethical obligation is significantly defined by the limited impact of these weather events on people outside the zone of the weather event's direct impact, yet close to that zone. A hurricane affecting New Orleans will not have immediate impact on the residents of California or even those on the northeast coast of the United States until a later time. Wildfires in the Pacific Northwest do not impair the ability of those in the rest of the country to come forward with assistance. But as climate migration crosses international borders, and climate events occur simultaneously in many regions, a more expansive duty to rescue may provide the ethical impulse to help those who live afar or migrate long distances. In this respect, the need for help in the event of widespread climate migration due to global warming is more like a pandemic than a weather event. Its broad impact area diminishes the capability of nearly the entire balance of the human population to help due to those populations' awareness that they will, in short order, have the same need for the same resources, from the same cause. Those living near current flood zones may find their historically safe havens are also a flood zone. Those previously best positioned to rescue may find themselves also needing to relocate. Thus, we may observe the need for new rescuers. ll. The Rule of Rescue The Rule of Rescue as defined by Al Jonsen describes the moral impetus or knee jerk reaction to save identifiable people facing death.[3] A duty to rescue has since been expanded beyond imminent death and beyond the near and identifiable. But there are limitations. For example, by most accounts, the ethical duty tends not to require extreme bodily risk or financial depletion. In comparing Good Samaritans to humanitarians, Scott M. James argues the duty to rescue arises from unique dependence, but the ethical obligation to help strangers through humanitarian aid is of a different nature.[4] The wrongness of failing to help is arguably more egregious when one is in a unique position to help. Like in the tragedy of the commons, where there is no unique positioning, when the global community is called upon to help, each individual in it may feel less obliged to do so. Climate migration falls in between—it requires helping strangers, yet it may move forward without anyone seeing themselves as uniquely positioned to help until those strangers become part of communities, at which time, there may be more moral justification to help a community member in need. Generally, arguments about Good Samaritans hinge on extraordinary acts, praiseworthy because they are acts of compassion, not obligation. Now all US states have Good Samaritan laws[5] which protect helpers from liability for help gone wrong or for a failure to succeed once engaged in an act of rescue. Extraordinary help as a moral good is thus somewhat encouraged through legal protection, but not imposed. Conversely, jobs like firefighting, search and rescue, and emergency medical care tend to oblige employees to take on risks that would be extraordinary if undertaken by the average bystander, yet they are rendered ordinary rescue as part of the job. Three states, Minnesota, Rhode Island, and Vermont have a broad duty to rescue, adding legal considerations to an otherwise moral conundrum. The laws do not require bystanders to take on risk for the sake of rescuing strangers.[6] The moral duty will require looking beyond law, but it is unclear how the moral duty to rescue should be distributed in the case of climate migration. A bare minimum would prevent taking advantage of newcomers, paying sub-minimum wage, and discriminating against them. Yet such a minimum is hardly rescue. lll. An Ethical Rather than Legal Duty The difficulty in defining the duty to rescue as a legal obligation is that it is difficult to determine the extent of risk a rescuer ought to be required to take. The nature of this ethical duty is also arguably tied to the experiences of both the rescuer and the rescued. There are subjective aspects like what someone perceives as a danger that make it difficult to write enforceable laws requiring rescue. It is one thing to expect a rescuer to step into several inches of relatively warm water to lift a person lying face down in a pond and enable them to breathe. It is something altogether different to expect that rescuer to dive into frigid water and attempt to extricate someone trapped in a submerged automobile. As the legal philosopher H.L.A. Hart observed, it is always easier to define application of the core intention of any rule, whether law or ethical norm. It is more difficult to create legal certainty about how the law applies to what he described as “penumbra circumstances”. In the case of a hurricane, it is easier to define what surplus resources are available in areas geographically remote from the impact of the storm and demand, as a moral obligation, that those nearby but outside the area provide assistance. It is more difficult to obligate people, organizations, or governments to supply a quantity of medication or some number of ventilators to an adjacent community when they expect to imminently need them for their own community. In the early stages of climate migration, the ethics of extreme weather event assistance, a common application of the duty to rescue, will be useful and appropriate. The rising sea levels first experienced by island nations in the South Pacific[7] will not render those living in other coastal communities, those with greater available “high ground”, unable to supply resources to those in need. But when sea level rise and climate change affect more communities simultaneously, albeit in varying degree, the task of defining what response is ethically obligatory becomes increasingly complicated. Pinpointing the obligations of those communities which are resource rich to those communities which are resource deprived, and of those partly affected to those more severely affected may become necessary. The limitations of the traditional duty to rescue could expand to meet the needs. lV. Contribution to the Problem Many argue that the duty to rescue may depend on any appropriate claim of those needing rescue. One issue is whether preferential claims among those who can identify the source of the harm should call for a greater duty or whether everyone in need should be approached as like candidates for rescue, shaping the duty as equal across those on the receiving end. As climate change does have human-made causes, there are strong arguments to impose a greater ethical duty on any entity that caused the climate-related problems leading to the mass exodus. While the global north is often implicated in pollution that causes migration, industries like energy, transportation, and agriculture are tied to climate change and associated with significant greenhouse gas emissions.[8] Practices like directing agriculture to less sustainable single crop growth generally made land less farmable. Yet it is difficult to place blame and identify specific causal relationships as most migration is due to many factors. A movement toward greater accountability can be reframed as a greater duty to rescue, a duty to engage in the extraordinary. The fossil fuel industry, for example, should have a larger obligation than the average person. Similarly, some may argue anyone unjustly enriching themselves while contributing to climate change or people who over-consume have an elevated duty to rescue.[9] Climate change lawsuits demonstrate an eagerness to hold governments and corporations accountable, despite difficulty proving causation. V. The Most Vulnerable One ethical dimension of climate migration that remains unexplored is how a duty to rescue applies to vulnerable populations who stand to be left behind or unable to migrate without assistance. Researchers from the Global North working across the Global South are increasingly observing the phenomenon of ethics dumping, where the research ethics of some countries are imposed on research subjects in other countries.[10] In that vein, rescuers should be careful not to impose unwelcome cultural standards or exploit people who are in the process of migrating. There is a gap in discussions reflecting voices that have been left out. The duty to rescue is incomplete without an attempt to understand the ethical experiences of those being rescued. The actual people affected by climate migration who are the least likely to have the means to migrate, or to do so without extreme hardship, should have a voice informing the global community including those in a position to carry out rescue. People who have the means and are young and healthy may easily make decisions to avoid the catastrophic consequences that climate migration brings. However, what about those who are left behind? For example, especially recognizing cultural differences, the homeless community, disabled community, refugees, the elderly community, and women[11] and children may suffer differently and call for more attention. In some parts of the world, human rights are severely constrained. An ethical duty to rescue, with many considerations and variables, may be more justified in the case of those most in need. As climate migration continues and increases significantly, it may be reasonable to ask the local and global community to focus on those least well positioned to migrate successfully. In this context, the use of phenomenology to understand the lived experiences of those migrating, sometimes termed “ethical experiences”, may help flesh out how a duty to rescue takes shape. The discussion of duty and obligation requires an articulation of the ethical experiences (how the local community in need of rescue views the proposed rescue). Then, the obligation to interpret the duty as ‘one shall not’ or ‘one must’ can be focused on the migrants’ needs rather than the rescuers’ feelings of obligation.[12] A revised theory of the duty to rescue taking into account the asymmetrical experiences of communities involved could ensure that the needs of people whose living situations, gender, ethnicity, age, or race impact their ability to even begin the migration process are considered. In this discussion, the rescuing is directed toward communities /collectives of persons migrating, whether at once or across a period of time. Often, the climate migrant may not be in a state to articulate the nature of this event when it happens, given its subjective proximity. Yet, when communities are given the space and opportunity to articulate their shared values, the ethical action of rescue derives its meaningfulness from the community rather than the rescuers. In other words, allowing climate migrants to explain their feelings can add complexity to what some see as a binary receiver-giver (of rescue) dynamic. This is necessary because the concept of vulnerable populations is fraught with problematic assumptions. There have been various definitions and criteria to determine what would constitute vulnerable populations.[13] For example, the United Nations Framework Convention on Climate Change[14] identifies and assesses vulnerable populations. These criteria may be helpful. However, they do not provide the full picture. Rather than identifying categorical criteria of vulnerable populations, engaging with people who are experiencing climate migration and listening to their current experiences and concerns helps determine need. Knowing what people need may prevent the kneejerk reaction to label people who are quite resilient yet have appropriate needs “vulnerable”. Proceeding with caution is important because the duty to rescue has hierarchical underpinnings of "us" and "them." Often when people swoop in to save, there are good and bad consequences of the intervention. We should proceed with caution because often the helper misses the actual needs of those in need. The only way to combat this would be to make sure that people are empowered to inform those agencies that are able to help. In addition to more practical approaches, large scale oral histories could allow those who have migrated already to share their experiences. It would be important to capture the lived experiences of people who are already experiencing the consequences of climate migration or of other migration like that due to political or economic extreme events. These experiences could shape our analysis of whether people in fact wish for rescue. If so, further conversations can determine best actions as well as give important insight into what resources might be necessary to empower people now and in the future. Vl. A Duty to Rescue as a Duty to Prepare If we view Good Samaritans as going above and beyond, then a duty to rescue, something ethically compelled, must bring rescue out of the framework of charity and place it in the context of humanity and obligations. Such a view would also support expanding the geographical reach of the otherwise more proximate duty. The duty may be stronger and take shape in a more workable way if it applies to preparing places expecting to see an influx of people due to climate migration and to helping those most in need. The duty may arise out of expectations of what type of community the place welcoming those migrating due to climate should be—does it want to offer good housing, schooling, and medical care as well as economic opportunity to new people? And if so, at what cost, or with which risks? If the newcomers are viewed as community members rather than strangers, a model of acceptance may lead to better preparation. Some considerations like whether the actions will reasonably help the persons in need of rescue[15] will shape the application of a duty to rescue in the context of climate migration. Similarly, ensuring that people have the chance to articulate their values may help communities support the newcomers. New relationships should not be defined as migrant and rescuer. Voluntariness in participation and not forcing any action deemed rescue would help ensure the human rights of those migrating. In the United States, President Biden issued an executive order addressing impending climate migration steeped in a duty to prepare by making plans for resettlement and to address the impact of climate migration.[16] Vll. At What Risk? As we investigate the ethical obligations to meet even basic needs, we must also ask what level of risk is ethically compelled. There is an extraordinary need to integrate newcomers successfully, but it is difficult to stretch an ethical duty to rescue to require all the prerequisites for successful climate migration. Even defining success would create deep ethical arguments. As observed in almost all migrations, extraordinary charitable acts may be the key to success, while an ethical duty to rescue must try to require the important government and community-based basics and ensuring respect for human rights. That is, the migrating people should be rescued from circumstances that contradict basic human rights. Rather than comparing communities to bystanders, mere places where people will arrive and need to hash out how to find housing, jobs, education, and opportunity, a duty of preparation may be the key to rescue those disenfranchised by migration. There are cultural, personal, physical, psycho-social, and geopolitical issues surrounding how to best help those needing to permanently relocate. Ethics arguments will certainly range from “do nothing”, which may fail people, to “do everything”, which could waste taxpayer money in futile over-preparation while failing to actually help. Communities must avoid planning exclusively for one scenario only to have it not take place. Striking the balance, a duty to rescue as it could apply to climate migration should set goals of societal integration, and providing the basics like education, housing, food, health care, and job opportunity, the precursors to flourishing. Recommending the extraordinary, morally preferred but perhaps not compulsory, when charitable actors are participating, or when wrongdoers are compensating, may be more workable than seeing the duty to rescue as compelling people or local governments to take on significant financial and personal risk for newcomers. While humanitarian ethics supports helping everyone, it is likely that people who resettle in advance of a need to flee will find themselves with more choices and opportunities. Help is warranted for those with more dire needs. Preparing for them may do just that. Vlll. Rescue Prior to Migration and Rescue in the Process of Resettlement The duty to enable the migration in the first-place hints to the inadequacy of a duty to prepare. The traditional duty to rescue perhaps steps in if rescue looks like those geographically just out of harm's way rescuing those in danger. That resembles the traditional moral requirement, or duty to rescue according to the Rule of Rescue. Humanitarian aid typically provided by many institutions makes sense and is in place, although financial support for additional humanitarian aid is always needed. Despite having moved to purportedly more capable communities, migrant communities may be able to develop more egalitarian orders of living. Rather than continually being identified as having been rescued, it is important to make sure people keep or make social ties during and after migration. Immigrants often face social isolation.[17] Small shifts in gestural language also have the potential to welcome people and show they are valued. For instance, some migrants may not like questions like “Where are you from?” and “What brings you here?” as they emphasize differences over fitting in. CONCLUSION The ethical duty to rescue should be expanded to better match those in need of relocation with a welcome environment and the resources needed to achieve success and fully integrate socially and culturally. Expanding a dialogue that includes the voices of people who have recently migrated whether due to violence, poverty, or climate, could properly frame the extent of the duty. If we are to apply the duty of rescue to climate migration, rescuers should avoid labeling people vulnerable, dependent, or needy, although there is reason to focus on those whose needs are the most dire. A soft duty to rescue people during the course of climate migration can come in the form of preparation. People will need help finding housing, education, access to food, and employment. Ultimately, to help them help themselves may be the best goal. While the obligations should be borne differently by people, whether due to a special responsibility, or a special relationship that creates a clearer duty, the global community must prepare for its role in rescuing those displaced by climate events. By helping those displaced at the start of the climate migration process according to a more commonly held notion of the duty to rescue, and by preparing to incorporate newcomers successfully according to an expanded duty to rescue, effectively a duty to prepare, countries that take on climate refugees may find themselves rewarded by the cultural diversity and workplace talents that people bring. A duty to those at a distance is a reasonable expansion of the duty to rescue. But what one ought to do in the global community varies somewhat from the traditional Rule of Rescue. - [1] Singer, P. (1972). Famine, Affluence, and Morality. Philosophy and Public Affairs, 1(3): 229-43. [2] Irfan, U. (2022, March 16). Why We Still Don’t Yet Know How Bad Climate Migration Will Get. Vox. https://www.vox.com/2022/3/16/22960468/ipcc-climate-change-migration-migrant-refugee, citing the International Panel on Climate Change (IPCC) (2022). Sixth Assessment Report, Climate Change 2022, Impacts, Adaptation, and Vulnerability. https://www.ipcc.ch/report/ar6/wg2/ [3] McKie, J., Richardson, J. (2003) The Rule of Rescue. Social Science & Medicine, 56(12): 2407-2419. https://doi.org/10.1016/S0277-9536(02)00244-7. [4] James, S.M. (2007). Good Samaritans, Good Humanitarians. Journal of Applied Philosophy, 24(3):238-254. [5] Overview of Good Samaritan laws. https://worldpopulationreview.com/state-rankings/good-samaritan-law-states [6] Fifield, J. (2017, Sept. 19). Why It’s Hard to Punish ‘Bad Samaritans’. Stateline Blog, Pew Charitable Trusts, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/09/19/why-its-hard-to-punish -bad-samaritans [7] Cassella, C. (2019). There’s a Climate Threat Facing Pacific Islands That’s More Dire Than Losing Land, Science Alert, https://www.sciencealert.com/pacific-islanders-are-in-a-climate-crisis-as-rising-sea-levels-threaten -water; Hassan, H. R., and Cliff, V. (2019). For Small Island Nations, Climate Change is not a Threat. It’s Already Here, World Economic Forum, https://www.weforum.org/agenda/2019/09/island-nations-maldives-climate-change/ [8] For example, Lyons, K. (2019). Australia Coal use is Existential threat to Pacific Islanders, The Guardian. https://www.theguardian.com/world/2019/aug/12/australia-coal-use-is-existential-threat-to-pacific-is lands-says-fiji-pm [9] Cripps, E. (2013). Climate Change and the Moral Agent: Individual Duties in an Interdependent World. Oxford: Oxford University Press. [10] Schroeder, D., Chatfield, K., Singh, M., Chennells, R., and Herissone-Kelly, P.. Ethics Dumping and the Need for a Global Code of Conduct. In Cham. (Ed.)(2019). Equitable Research Partnerships. SpringerBriefs in Research and Innovation Governance. Springer. 2019. https://doi.org/10.1007/978-3-030-15745-6_1 [11] Giudice L.C., Llamas-Clark E.F., DeNicola N., Pandipati, S., Zlatnik, M.G., Decena, D.C.D., Woodruff, T.J., Conry, J.A. (2021). Climate Change, Women’s Health, and the Role of Obstetricians and Gynecologists in Leadership, International J Gynecol Obstet, 155(3), 345-356. 10.1002/ijgo.13958 [12] See Ferrarello, S. and Zapien, N. (2020). Ethical Experience: A Phenomenology, Bloomsbury. (for understanding phenomenological determinants of ethical action). [13] McLeman, R.A., Hunter, L.M., (2010). Migration in the context of vulnerability and adaptation to climate change: insights from analogues. Wiley Interdiscip Rev Clim Change, 1(3): 450-461. [14] Least Developed Countries Expert Group. (2018). Considerations Regarding Vulnerable Groups, Communities and Ecosystems in the Context of the National Adaptation Plans: United Nations Framework Convention on Climate Change. [15] Jecker, N.S. 2013. "The Problem with Rescue Medicine." J Med Philos, 38(1):64-81. [16] White House Report. (February 9, 2021), Executive Order (E.O.) 14013, “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” (calls on the National Security Advisor to prepare a report on climate change and its impact on migration. “This report marks the first time the U.S. Government is officially reporting on the link between climate change and migration.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling -the-climate-crisis-at-home-and-abroad/ [17] Torres, J.M., Casey, J.A. (2017) The centrality of social ties to climate migration and mental health. BMC Public Health, 17: 600. https://doi.org/10.1186/s12889-017-4508-0. (shrink)

There is significant controversy over whether patients have a ‘right not to know’ information relevant to their health. Some arguments for limiting such a right appeal to potential burdens on others that a patient’s avoidable ignorance might generate. This paper develops this argument by extending it to cases where refusal of relevant information may generate greater demands on a publicly funded healthcare system. In such cases, patients may have an ‘obligation to know’. However, we cannot infer from the (...) fact that a patient has an obligation to know that she does not also have a right not to know. The right not to know is held against medical professionals at a formal institutional level. We have reason to protect patients’ control over the information that they receive, even if in individual instances patients exercise this control in ways that violate obligations. (shrink)

Much of the debate around temporary foreign worker programs in recent years has focused on full or partial access to rights, and, in particular, on the extent to which liberal democratic states may be justified in restricting rights of membership to those who come and work on their territory. Many accounts of the situation of temporary foreign workers assume that a full set of rights will remedy moral inequities that they suffer in their new (...) homes. I aim to show two things: first, and based on experiences reported by former Live-in-Caregivers in Canada who now have access to the full set of citizenship rights, and German citizens who are descendants of Kurdish guestworkers in Germany, I have proposed that even after gaining citizenship, many of them experience social stigma and a sense of exclusion. Second, I have argued that this neglects a basic need that individuals have, which is to have access to relational resources within society in order to be protected against social deprivation. This need is seemingly immune to be effectively protected through the known catalogue of social, civic and political rights. Instead, I argue that social deprivation needs to be analyzed through the lens of institutional vulnerability to yield an analysis of the moral obligations of liberal democratic states. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, taken as a name for (...) threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Declaration of Independence:Inalienable Rights, the Creator, and the Political OrderChristopher KaczorPierre Manent puts his finger on numerous problems that arise from an emphasis on human rights that is detached from any consideration of human nature, the Creator, or the traditions that inform human practice. In his book Natural Law and Human Rights: Towards a Recovery of Practical Wisdom, Manent writes: "Let us dwell a moment (...) on the proposition in which so much passion is invested today: man is the being who possesses rights. It resonates as our self-definition and our perspective on humanity, one that we take to have fortunately replaced other definitions and perspectives, such as that man is God's creature or that man is a political animal."1 Contemporary political discourse has arrived, so he thinks, at an impasse of contradiction, incoherence, and self-defeating beliefs.Manent finds a vital help for thinking through these issues in Thomas Aquinas,2 but perhaps also a useful resource is the work of Thomas Jefferson. In Natural Law and Human Rights, Manent cites the first article of the 1789 Declaration of the Rights of Man and of the Citizen: "Human beings are born and remain free and equal in rights."3 But Manent does not cite the Declaration of Independence drafted by Jefferson. The 1776 Declaration provides a way of addressing many of Manent's concerns about human rights, human nature, and equality because it combines an appeal to the Creator [End Page 249] with the establishment of rights grounded in human nature and defended by limited government. In order to approach some of the important political, religious, and philosophical questions raised in Natural Law and Human Rights, we can reconsider the famous "American proposition": "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." What exactly does this famous American proposition mean? Can it help us to address some of the concerns about incoherent political discourse that Manent highlights?We Hold These Truths to Be Self-EvidentWhat does "we hold these truths to be self-evident" mean? The interpretation of this phrase has generated no small amount of speculation.4 As Manent notes, appeals to self-evidence arise also today in disputes about same-sex marriage.5 Even if we cannot perfectly trace the remote or proximate historical origins of the phrase in 1776, we might still examine some possible meanings.For John Locke, a self-evident truth is akin to what later philosophers called an analytically true proposition.6 Such propositions are true in virtue of the agreement of the ideas that make up the proposition. "A bachelor is an unmarried man of marriageable age" is self-evidently true, since the idea of "bachelor" agrees with the idea "an unmarried man of marriageable age." It does not seem plausible that the self-evident truths of the Declaration of Independence were meant in this sense. The assertions of the Declaration are not true simply by agreement of ideas or by definition in a way that is obvious to anyone who is a native speaker.Thomas Reid suggests a different sense of self-evidence. On his view, [End Page 250] self-evidence does not mean obviousness to everyone, but rather clear to those with the requisite education and maturity: "Moral truths... are self-evident to every man whose understanding and moral faculty are ripe."7 If a person is conscious of no moral obligation whatsoever, then reasoning with such a person will not bring the person to understand his or her obligations. Just as mathematical calculations cannot begin without acceptance of basic axioms of mathematics, so too ethical reflection presupposes but does not establish its first principles. As Reid says, "the man who does not by the light of his own mind, perceive some things in conduct to be right, and others to be wrong, is as incapable of reasoning about morals as a blind man is about colours."8 Just as there are people who cannot see colors, so too there are people lacking the requisite moral... (shrink)

In this paper, I defend the view that within a rights-based ethical framework, the moral status of future generations is best understood as that of present rightsholders. I argue that in this way it can be justified that we have obligations towards future generations. This justification in turn is of great relevance for many issues in moral theory and applied ethics. In the first part of the paper, I argue that the fact that future persons will have (...) class='Hi'>rights in the future cannot fully account for present obligations. The missing link in this argument cannot be provided by approaches that infer those obligations mediately. In the second part of the paper, I argue that existing is not a necessary condition for being a rightsholder. First, our own future selves should be said to have rights even though they do not exist at present. Second, even at present, uncertainty challenges the relationship between rightsholders and obligation bearers: often enough, obligations depend on presuppositions or suspicions about other persons’ existence. In light of these cases, we should conceive of rightsholders as place holders, that is, sets of (actual) individuals whose existence or identity can be unknown or indetermined, with specific properties. Therefore, future generations can coherently be said to have rights now that correspond to our present obligations towards them. (shrink)

In the last twenty years a critique of the idea of a right as the property of an individual subject has been articulated by some influential Anglican theologians – Joan Lockwood O’Donovan, Oliver O’Donovan and John Milbank. Their objections are considerably based on an argument about intellectual history. Broadly pursuing an intellectual trajectory first set by Leo Strauss and C. B. Macpherson, these theologians think that the very concept of a ‘subjective right’ is tied, certainly historically but perhaps also (...) logically, to modern, Hobbesian social contract theory, and therefore to radical individualism and moral subjectivism. Therefore, they think that to affirm individual subjective rights is to exclude a larger objective order of moral right, and to undermine the authority of the claim of social obligation. Against this critique, this article, first, argues that a morally realist conception of subjective rights prevailed before Hobbes, and continued to prevail long afterwards. Second, the article proceeds to refute Ernest Fortin’s thesis that Hobbes came to dominate modern rights-talk through John Locke. Finally, it suggests that the contemporary detachment of the concept of subjective rights from a larger context of objective moral right has more plausible and more proximate roots in twentieth century philosophical and cultural developments. (shrink)

This book demonstrates the importance of a duty-based approach to morality. The dominance of what has been labeled “rights talk” leads to the neglect of duties without corresponding rights and stimulates the proliferation of questionable human rights. Therefore, this book argues for a duty-based perspective on morality in order to, first, salvage duties of virtue, and, second, counter the trend of rights-proliferation by providing some conceptual clarity concerning rights and duties that will enable us to (...) differentiate between genuine and spurious rights-claims. The argument for this duty-based perspective is made by examining two particularly contentious duties: duties to aid the global poor and civic duties. These two duties serve as case studies and are explored from the perspectives of political theory, jurisprudence and moral philosophy. The argument is made that both these duties can only be adequately defined and allocated if we adopt the perspective of duties, as the predominant perspective of rights either does not recognize them to be duties at all or else leaves their content and allocation indefinite. This renewed focus on duties does not wish to diminish the importance of rights. Rather, the duty-based perspective on morality will strengthen human rights discourse by distinguishing more strictly between genuine and inauthentic rights. Furthermore, a duty-based approach enriches our moral landscape by recognizing both duties of justice and duties of virtue. The latter duties are not less important or supererogatory, but function as indispensable complements to the duties prescribed by justice. In this perceptive and exceptionally lucid book, Eric Boot argues that a duty-focused approach to morality will remedy the shortcomings he finds in the standard accounts of human rights. The study tackles staple philosophical topics such as the contrasts between duties of virtue and duties of justice and imperfect and perfect obligations. But more importantly perhaps, it also confronts the practical question of what our human rights duties are and how we ought to act on them. Boot's book is a splendid example of how philosophy can engage and clarify real world problems. Kok-Chor Tan, Department of Philosophy, University of Pennsylvania A lively and enjoyable defence of the importance of our having duties to fellow human beings in severe poverty. At a time when global justice has never been more urgent, this new book sheds much needed light. Thom Brooks, Professor of Law and Government and Head of Durham Law School, Durham University. (shrink)

Philosophers have had surprisingly little to say about the concept of a victim although it is presupposed by the extensive philosophical literature on rights. Proceeding in four stages, I seek to remedy this deficiency and to offer an alternative to the two current paradigms that eliminates the Othering of victims. First, I analyze two victim paradigms that emerged in the late 20th century along with the initial iteration of the international human rights regime – the pathetic victim paradigm (...) and the heroic victim paradigm. Holocaust victims are quintessential instances of the pathetic victim paradigm. They are marked by passivity and innocence in the face of overpowering force and unspeakable humanly inflicted suffering. Aung San Suu Kyi is an exemplar of the heroic victim paradigm – prisoners of conscience, in Amnesty International’s terms. Because heroic victims face off against the repressive power of the state to fight injustice, they are by no means passive, but they must be innocent of wrongdoing – that is, they must use nonviolent means of dissent – to qualify as heroic victims. Second, I problematize the asymmetrical conceptions of innocence that underwrite the two victim paradigms. Whereas the pathetic victim paradigm identifies innocence with passivity, the heroic victim paradigm countenances agentic victims and adverts to a universalist, absolutist stance on the limits of the legitimate use of state power to ascribe innocence to heroic victims. Both conceptions of innocence are out of keeping with well established social and legal practices regarding what constitutes coercive force and innocent victimhood. Consequently, there is reason to be skeptical of the two victim paradigms. Third, I identify two kinds of human rights violations and two categories of victims that AI defends despite their failure to fit the two paradigms – women trafficked into sex work and prisoners on death row. In many cases, women forced to do sex work are not innocent girls who are ignorant of the trafficking system and who helplessly fall prey to smugglers. They are desperately poor women who for that reason are willing to take enormous risks to try to relieve their own and often their families’ deprivation and suffering. Although these women act nonviolently for irreproachable reasons, they lack the public political agendas that characterize heroic victims. Unless non-fulfillment of subsistence rights is recognized as a form of overpowering force that inflicts severe, avoidable suffering, these women do not qualify as pathetic victims either. The victim paradigms pose an even greater obstacle to recognizing that the death penalty is a human rights violation and that death row prisoners are victims. Because a jury concluded that these individuals committed heinous, violent crimes, they are excluded by the heroic victim paradigm. Only if death row prisoners can be proven (usually through DNA evidence) not to have committed the crimes for which they were convicted can these individuals qualify as pathetic victims. In the absence of any reason to believe that they are innocent and especially if they are unrepentant, they are widely regarded as brutal victimizers of others who deserve no sympathy for, let along relief from, the suffering they “brought on themselves.” Finally, I confront the Othering of victims that results from the two victim paradigms, which leads many victims to eschew the label, thereby opting out of human right discourse. I propose revisions in the victim paradigms that eliminate the real-world exclusions they sponsor as well as the Othering of victims of human rights abuses. In particular, I endorse greater attention to what people and the institutions they create do to other people, and I favor a presumption that unnecessary and severe humanly inflicted suffering is a human rights violation. Moreover, I reject the innocence criterion embedded in the two paradigms and urge that it be replaced by a burdened agency criterion. These modifications better align the concept of a victim with a realistic understanding of human subjectivity and agency and allow for a more capacious understanding of who is a bearer of human rights and under what conditions right-holders become victims of rights violations. (shrink)

Late last year the English Court of Appeal confirmed a lower court's ruling that doctors could impose an operation to separate recently born conjoined twins, overriding the refusal of consent of their parents. The doctors believed the operation would probably save one of the babies at the cost of killing the other, while not operating would highly probably be followed by the death of both twins within months of their birth. The parents, said to be devout Roman (...) Catholics, believed that it was absolutely wrong to kill one of their babies, even to save the life of the other.Undoubtedly many people, the writer included, would agree with the English courts that the “least worst” option was to separate the twins and save one at the cost of killing the other. But surely many fewer people would have imposed their own resolution of this acute moral dilemma upon parents who conscientiously chose the other limb of the dilemma, refusing to kill one baby even in order to save the other. Were the English judges right, then, to take away the parents' normal right and duty to make health care decisions on behalf of their children and instead impose their own answer to what they admitted to be a terrible dilemma? Describing the two alternatives in terms of choosing between the lesser of two evils on the one hand, and the obligation not to kill on the other, Lord Justice Ward declared, according to The Times law report,1 that: “Parents who were placed on the horns of such a terrible dilemma simply had to choose the lesser of their inevitable loss [sic]”. But that surely is to beg the moral question in favour of the judges' preferred answer to this moral dilemma. The fact is that there are—as …. (shrink)

The article discusses the rights of minorities in the system of the International Covenant on Civil and Political Rights. It establishes a conceptual distinction between universal rights, specific rights of minorities in general and specific rights of particular minorities. Universal rights correspond to all individuals (e,g,, “no one shall be subjected to torture”) or all groups of a certain class (e.g., “all families are entitled to protection”). Minority groups and their members are entitled (...) to these rights in the same way as any other individual or group. Specific rights of minorities in general are granted to minority groups (e.g., “minority groups have the right to speak their own language”) or their members (e.g., “persons belonging to a minority group have the right to speak the language of the group”). Finally, specific rights of particular minorities are granted to specific groups identified by their characteristics (e.g., “the linguistic minority X has the right to speak the X language”) or their members (e.g., “any member of the linguistic minority X has the right to speak the X language”). Treaties and international declarations often refer to universal rights and specific rights of minorities in general. However, these rights are usually recognised in broad terms, and their implementation may lead to the recognition of specific rights in favour of particular minorities or their members. Protection of minorities (in the broad sense of the expression) is based on two pillars: on the one hand, the protection against discrimination; on the other hand, the protection of minorities in the strict sense. The first pillar is an aspect of the general principle of nondiscrimination and requires respect for both formal and substantive equalities. The protection of minorities in the strict sense involves the preservation of their particular identity. The purpose of the equality in a formal sense is achieved through universal rights, to the extent that these are granted to minority groups and their members. On the contrary, to achieve equality in a substantive sense, it could be necessary to implement positive measures. The implementation of these measures will usually lead to the recognition of specific rights of minority groups or their members. Finally, the protection of the distinctive characteristics of the minorities will also be done through specific rights. Thus, on the one hand, there are rights, which are intended to protect the minority forms of life (i.e. to protect differences), and, on the other hand, those that are intended to allow minorities equal access to different uniform social goods (i.e. to protect equality). Whereas the former ones seek to protect and promote the particularities of the minority culture (e.g., the right to receive education in their own language), the latter ones are recognised to overcome the disadvantages that minority groups and their members face and are not intended to promote peculiarities, but rather to permit equal access to resources and social opportunities. Article 27 of the International Covenant on Civil and Political Rights enshrines specific rights of minorities intended to protect and promote their own forms of life. Although economic rights are not mentioned (the article refers to the rights “to enjoy their own culture, to profess and practise their own religion, [and] to use their own language”), they may stem from the explicitly recognised rights. The rights recognised by the Covenant are not collective, but individual rights (“in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right [...]”). The rights recognised in the Declaration of the United Nations General Assembly on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities are of the same nature. The principle of equality and non-discrimination is contained in Articles 2.1 and 26 of the Covenant. This principle forbids direct and indirect discrimination, be it de iure or de facto. As this is a universal right, minorities can also benefit from it. According to the Human Rights Committee, Article 27 imposes on States the adoption of positive measures that exceed an attitude of mere abstention. In the same way, positive measures may be necessary to make the principle of equality and non-discrimination effective. Although neither Article 27 nor Articles 2.1 and 26 refer to individuals belonging to a specific minority, the concrete implementation of these articles through positive measures may produce specific rights for persons belonging to particular minority groups. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier Annette C. Baier Gauthier's splendidly dialectical paper1 first sets out Hume's official Treatise account ofhow each personhas a self-interested motive to curb her natural but socially troublesome self-interest, by agreeing to the adoption ofthe artifices ofprivate property rights, transfer by consent, and promise (provided others are also agreeing to adopt them), andhow the sympathy-dependent moral sentiment approves (...) of such a redirection of"the interested passion." Enlightened self-interest gives us the natural obligation tojustice; the fact that it is morally approved turns it into a moral obligation. Self-hatred for any breaches of the moral obligation may come in to bolster the self-interested motivation, and this will be helped along by the extra artifices employed by educators and politicians. So far so good. But now enters the sensible knave, who queries the initial assumption that each will in fact gain more by strict conformity to the rules of the Humean social artifices than by occasional carefully calculated and undetected breaches of them. If the knave is right, then the Treatise story ofhow reasonable self-interested people can get themselves to conscientiously respect property rights (including rights ofbarter), and to keep promises, is in trouble. Only by an erroneous calculation of their interest could they end with the motivation which Hume attributes to them, and finds to be morally approvable.Gauthier argues that there are indications even in the Treatise that Hume is aware ofthe flawed nature ofhis official account, since he attributes "sophistry" to some attempted justifications of honest behaviour, and attributes "feigned acts" of impossible willing to some conscientious promise-keepers. Gauthier finds Hume to have, in the Treatise, a second, less official story ofwhat it takes to be motivated to be just—that it takes error, and letting oneself be taken in by feignings and sophistry. In the Enquiry Concerning the Principles ofMorals this submerged account surfaces in the sensible knave's challenge and Hume's admission that his own answer will not be satisfactory to the knave. The charms of official Humeanjustice, Gauthierconcludes, are spurious, sincethe "anatomy" of the account of the rational motivation to be just is known to be unsound. "The sensible knave's message is thathuman society... lacks any moral foundation." Volume XVIII Number 2 429 ANNETTE C. BAIER This is a sombre tale. One of its unwelcome implications is that Hume himself, really believing that the knave is right, but unwilling tobe seen tohave the bad grace to "dehver a theory, however true which... leads to a practice dangerous and pernicious," is simply trying to "sink" the knave's truth in oblivion by creating a smoke-screen of insincere rhetoric about the greater delights of consciousness of integrity over the knave's satisfaction in his ill-gotten gains. So there really are two sombre tales—one, attributed to Hume, about justice, and one about Hume's dupUcity (or is it mere cynical frivolity?): Gauthier crafts both stories beautifully, directing our attention to bits ofHume's text injust the right order for his dramatic purposes. But is he giving us truth or fiction? I completely agree with Gauthier's version of Hume's official Treatise story, that the moral obligation to justice supervenes on the "natural obligation" for which Hume believes the natural motivation to be collectively redirected self- (or family) interest.2 1 agree that there are one or two passages, especially in the Treatise section, "Of the obUgation of promises," that seem to jar with this account, and which much somehow be explained. I agree that Hume believes that his reply to the knave is, from the knave's point ofview, unsatisfactory. Now for some disagreements. First, about Hume's reply to the knave.3From the viewpointofthevirtuous dues-payingmemberof"the party of humankind," Hume's is a perfectly satisfactory reply. It will be plain truth, for a person with the other Humean virtues (including equity, which is listed as a natural virtue),4 that justice will bring as great or greater good than would judicious injustice. Even if it would be "simply preposterous" to believe that the social order is dangerously threatened by any... (shrink)

Digital platform economy has radically changed the modes in which work is organized, stretching the functionality of legal environment of work and its governance. This article builds on a strand of labor law scholarship that advances the need to rethink the legal construction of work and work relationship in order to adapt it to the dynamically evolving socio-economic context. By applying a business and human rights lens to this process, this article confutes the mainstream argument that labor rights (...) guarantees remain contingent on an individual’s enjoying the status of an employee under national jurisdiction. We survey a largely underexamined conception of affording protection to platform workers under International Human Rights Law (IHRL). In doing so, we argue that the instruments of IHRL may in some respects be even better placed than that of national law, both strengthening and complementing areas where state protection is weak or non-existent. Through the right to just and favorable conditions of work perspective, we outline the non-contested, albeit partly poorly implemented obligations of states, as well as largely contentious and contested responsibilities of private actors such as digital platforms towards the rights-holders. We conclude by arguing that the leverage offered by IHRL in the struggle to curb a quasi-sovereign power of the platform largely outweighs the democratically motivated objections this avenue may raise. (shrink)

One of the most prevalent rationales for public healthcare policies is a human right to healthcare. Governments are the typical duty-bearers, but they differ vastly in their capacity to help those vulnerable to serious health problems and those with severe disabilities. A right to healthcare is out of the reach of many developing economies that struggle to provide the most basic services to their citizens. If human rights to provision of such goods exist, then governments would (...) be violating rights without doing anything wrong. I argue that such variable ability to provide healthcare depends not only on financial resources, but on institutional capacity, and that the latter represents a more fundamental challenge to the existence of a human right to healthcare than previously recognized. This challenge does not imply that government has no obligations to protect and improve the health of their citizens, but that it is best to think of such obligations as generated by conventional rights, namely rights arising from local legal and social conventions, which require governments to pursue health-related moral goals such as reducing suffering, closing opportunity gaps for the disadvantaged, and preventing the spread of contagious diseases. We need not think of such moral goals in terms of human rights. (shrink)

Punishment and restitution are usually viewed as separate paradigms of criminal justice. However, in this dissertation I suggest that a practice of legal punishment can be justified in the context of a criminal justice system based exclusively on the criminal's obligation to make restitution for the losses he has wrongfully inflicted on others. My strategy is to show first that those who commit crimes bring about a significant loss for the members of their community in addition to harming the (...) immediate victims of their crimes, and second, that a practice of legal punishment constitutes a means by which criminals can make restitution to the members of the community for this loss. I suggest, then, that the members of the community are morally justified in instituting a practice of legal punishment in order to exact restitution for the loss they suffer as a result of criminal violations. ;The dissertation provides a reasonably systematic development of a restitutive theory of punishment. I begin by critically examining the major approaches that have been taken to the justification of punishment in order to provide some preliminary justification for taking a particular approach to this issue. I then outline a conception of justice that forms the basis of the theory of punishment I suggest. The central chapter contains an analysis of the different types of losses that result from criminal violations and a moral argument that justifies requiring criminals to make restitution for all of these losses. I also argue that given certain conditions, legal punishment constitutes a legitimate means by which the members of the community can exact restitution for the loss they have suffered. In the remainder of the dissertation I show that a restitutive theory of punishment both captures and illuminates much of the retributivist position, and I work out several of the specific implications of this analysis for the way in which a practice of legal punishment ought to be articulated. (shrink)

My aim is to extend and complement the arguments that others have already made for the claim that women who are citizens of economically disadvantaged states and who have been trafficked into sex work in economically advantaged states should be considered candidates for asylum. Familiar arguments cite the sexual violence and forced labor that trafficked women are subjected to along with their well-founded fear of persecution if they’re repatriated. What hasn’t been considered is that reproductive rights are (...) also at stake. I explain how reproductive rights are implicated in sex trafficking. Moreover, I contend that sex traffickers’ abuse of women’s reproductive rights is persecutory and that that this persecutory abuse obliges destination states to offer asylum to transnational sex trafficking victims. I start by sketching reproductive human rights doctrine. I then examine studies of women who are in post-trafficking recovery programs in order to ascertain the impact of their past experience of forced sex work on their reproductive freedom and health. On the basis of these findings, I maintain that, among other outrages, sex trafficking systematically violates victims’ reproductive human rights. In view of this abuse, women trafficked into sex work might seem to be prime candidates for asylum in destination states. Yet, economically well-off destination states are not particularly receptive to this idea, and international law provides some justification for their chilliness. Preliminary to challenging them, I explicate four ways in which international anti-trafficking law and international refugee law interfere with viewing women trafficked into sex work as refugees and approving their applications for asylum. The second half of my paper aims to overcome those legal obstacles. In the interest of parsimony and because there are many continuities between U.S. refugee law and anti-trafficking law and the policies of similar destination states, I focus mainly on the U.S. in this part of the paper. To anchor my argument, I spotlight two precedents in refugee law for taking reproductive human rights seriously and several precedents for treating trafficked women as members of a distinct social group as required by refugee law. I then urge that a law enforcement gestalt has gained undue influence over U.S. legal practices where anti-trafficking law intersects with refugee protection law. A human rights gestalt is needed as a counterweight, for otherwise victims of sex trafficking and the reproductive abuse they’ve suffered are erased. Taking up a human rights perspective and mobilizing the precedents I’ve identified, I show that respecting the reproductive human rights of women who have been trafficked into sex work entails that affluent destination states must recognize their right to asylum. (shrink)

Following a brief summation of the phenomenological method, the paper considers three metaethical positions adopted by phenomenologists and the implications of those positions for a normative ethics. The metaethical positions combine epistemological and ontological viewpoints. They are non-intellectualism and strong value realism as represented by the axiological views of phenomenologists such as Scheler, Meinong, Reinach, Stein, Hartmann, von Hildebrand, and Steinbock; non-intellectualism and anti-realism as represented by the freedom-centered phenomenologies of Sartre, Beauvoir, and Merleau-Ponty; and weak intellectualism and weak (...) value realism as represented by Husserl and Drummond. The paper argues that only the third metaethical view can support a normative ethics that is consistent with the essential features of the phenomenological method, that allows for freedom in an agent’s choosing from a multiplicity of first-order goods, including vocational goods, practical identities, and life plans, available in the agent’s factical circumstances, and that provides norms governing the correctness of our actions and our obligations to others. The normative dimension is introduced, first, by the requirement that the fulfillment of first-order evaluations and choices be truthful, that is, that the evaluations be appropriate and the actions right. Second, transcendental considerations revealed in the phenomenological analysis of intentional experience disclose a notion of second-order goods of agency that universally bind agents in their exercise of freedom and their dealings with others. (shrink)

Scholars have argued that we have compelling reasons to combat climate change because it threatens human rights, referred to here as ‘climate rights’. The prospects of climate rights are analysed assuming two basic desiderata: its accuracy in capturing the normative dimension of climate change ; and its ability to generate political measures. In order for climate rights to meet these desiderata certain conditions must be satisfied: important human interests are put at risk by global climate change; (...) there is an identified rights-holder and obligation-bearer; this relationship is codified in a legitimate formal structure; it is feasible to claim the rights; an ‘enforcement mechanism’ could strengthen compliance. When asserting climate rights it is insufficient to consider the moral ground or actual enforcement possibilities by themselves. Normative and practical aspects are closely interlinked and must be studied in tandem. (shrink)

The World Bank is no stranger to criticism of its projects, especially in respect of its privatization and private sector development projects. Critics point to the environmental, social and cultural damage that certain projects have caused, which for some appears not just to be a product of the individual projects themselves, but symptomatic of a broader policy failure within the Bank to engage with the social consequences of its actions. In fact, and somewhat surprisingly, both the Bank's critics and its (...) defenders seldom employ human rights language in their reasoning and rhetoric, and where they do, it is only fleetingly and often lacking in any real substance. This is surprising because of so much of what the Bank does can be, and is, supportive of the objects of international human rights standards, especially in respect of economic, social and cultural rights. It is a central theme of this Discussion Paper that for the Bank to embrace this fact alone would be a very significant step towards it being better able not only to respond to its critics, but also, crucially, to deliver upon its own objectives as most recently expressed in the Millennium Development Goals. This Discussion Paper was commissioned by the World Bank. The brief was to provide an account of the major criticisms directed at the World Bank's private sector-oriented projects, and to determine what, if any, consequences for the protection of human rights are revealed by those criticisms. The approach adopted in this paper is first to identify key criticisms through empirical research and then to subject them to human rights analysis. This provides the basis for a clear account of the legal and programmatic implications for the Bank, today and in the future, of those human rights obligations and duties raised, directly or indirectly, by the critics of the Bank. (shrink)

Pollitt and Bouckaert and their neo-Weberian state (NWS) have been chosen as the subject for this essay because the book has become a standard work in the public management movement. It is frequently cited and has been re-published in multiple editions (most recently in 2017). The authors also refer explicitly to Max Weber.This contribution seeks to draw attention to three important aspects, which inevitably overlap with one another:1. There is no Weber in the neo-Weberian State (introduction, 1; section II). (...) Pollitt and Bouckaert fail to grasp that Weber’s understanding of the state [the state as an “institution” (Anstalt); and the state as an “idea of validity” (Geltungsvorstellung)] is not identical to his ideal type of modern bureaucracy; it is the features of the latter on which they draw. The ideal type is a standard measure constructed in order to establish how close any concrete, given instance of bureaucracy comes to it (introduction, 3). Meanwhile, the “neutral official” insisted upon by Weber has “taken their leave” in Germany from important positions (section III, 3). Furthermore, Weber did not address those structures and processes internal to the administration which are precisely the object of interest for the new public management reformers. Weber’s lack of interest arises from the fact the members of anAnstalt, whether it is the state or the Church (WuG, § 15, no. 2), are subject to imposed orders (oktroyierte Ordnungen) and, as such, do not enjoy the “right to have a say”. Scharpf (1973a) was the first to pay particular attention to the problems brought about by specialisation and by the division of labour within the administration that are responsible for an incremental form of politics (section III, 3); even if he later ascribes advantages to the combination of “negative” and “positive coordination” (Scharpf 1991: 18ff.).2. The “legalistic culture” that characterises Germany will be considered in a more differentiated way, drawing on empirical studies which provide information, for example, on how laws (i.e. programmes)actuallyoriginate inside the ministerial apparatus (introduction, 2; section III, 2 and 3) or how use is made of the power of authority (Weisungsrecht) in practice (introduction, 2; section III, 2 and 3), even when, formally, it claims to have validity (section III). In this way, only empirical studies (Benz 1994; Bohne 1981; Dose 1997; Dose/Voigt 1995; Treiber 2007a) prove that the administration that implements laws has often, in practice, become a “negotiative administration” (introduction, 2). Such a phenomenon as a “co-operative administration”, which negotiates rather than rules, is a “foreign concept” in Weber’s discussion of the state and modern bureaucracy. Scharpf’s (1970) comparison between constitutional governance in Germany and legal relief in America is enlightening when it comes to the meaning of the constitutional state (Rechtsstaat) (introduction, 2; section III); the same applies to his discussion of the failed federalist reforms, which sought, among other things, to mitigate, if not entirely eliminate, the opportunities for blockades provided by political entanglement (Politikverflechtung) (section III). Neither was it possible to realise long overdue proposals to reform administrative law (Verwaltungsrecht) (section III, 1), which involved weakening or removing altogether three important assumptions in the dominant administrative doctrine (the “dogmatic normality”) and which also included the ambitious intention for the law to achieve tangible impact (Hoffmann-Riem 1994). Nonetheless, while no-one would dispute that reform of the federal government and administration remained “on the agenda” (Scharpf 1991, Mayntz/ Scharpf 1973), the priorities of such a reform were, and still are, different to those of new public management reform [the key terms here arePlanung(“planning”) and the term that replaced it,Steuerung(“management”)]1.3. Pollitt and Bouckaert ascribe to the neo-Weberian state extremely varied functions without providing any (theoretical) basis for them. In this way, the notion of public management reform that they present acquires the status of a “reformist philosophy” (introduction, 3; section IV). See Scharpf (1991) for a theoretically well-founded argumentation on the State’s ability to act in our days. Scharpf’s essay will be discussed briefly (section IV).ConclusionThere is no Weber in the neo-Weberian state. According to the discussion presented here, the neo-Weberian state can only mean: how would a modern state constituted by Weber look today? (shrink)

An issue about the privacy of the clustered groups designed by algorithms arises when attempts are made to access certain pieces of information about those groups that would likely be used to harm them. Therefore, limitations must be imposed regarding accessing such information about clustered groups. In the discourse on group privacy, it is argued that the right to privacy of such groups should be recognised to respect group privacy, protecting clustered groups against discrimination. According to this viewpoint, this right (...) places a duty on others, for example, private companies, institutions, and governments, to refrain from accessing such information. To defend the idea that the right to privacy should be recognised for clustered groups, at least two requirements must be satisfied. First, clustered group privacy must be conceived of as either a collective good or a participatory good. Since these forms of good are of the type from which no member of a group can be excluded from benefiting, the right to them is defined as a group right. Second, there must be group interests on which to base a group right. Group interests can be either the interests of those members that are a result of their being in the group or the interests of the group as a whole that transcend the interests of its members. However, this paper argues that clustered group privacy cannot be conceived of as either a collective or a participatory good because it is possible for some individuals to be excluded from benefiting from it. Furthermore, due to the lack of awareness among individuals that they are members of a clustered group and the nature of a clustered group itself, such groups cannot have the group interests necessary to establish a group right. Hence, the group right to privacy cannot be recognised for these groups, implying that the group right cannot be considered a means to protect clustered groups against discrimination. Instead, this paper suggests that moral principles need to be articulated within an ethics of vulnerability to identify the moral obligations of protecting vulnerable clustered groups. The duty owed to the vulnerable should involve refraining from accessing certain information about clustered groups in specific contexts. This duty is not engendered by the right to privacy of such groups; it is the duty owed to the vulnerable. The findings highlight the need to articulate moral principles regarding privacy and data protection to protect clustered groups in contexts in which accessing information about them could constitute a reason for discriminatory targeting. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Kennedy Institute of Ethics Journal 16.4 (2006) 379-396MuseSearchJournalsThis JournalContents[Access article in PDF]Pharmacists and Conscientious Objection *In March 2005, a Wisconsin pharmacist's act of conscience garnered headlines across the United States. After a married woman with four children submitted a prescription for the morning-after pill, the pharmacist, Neil Noesen, not only refused to fill it, but also refused to transfer the prescription to another pharmacist or to return the prescription (...) to the customer. As more such incidents occurred, many states "... decided to consider and enact laws setting the bounds of pharmacists' and other health care workers' professional obligations" (III, Grady 2006, p. 327). Discussions of objector legislation, also referred to as "conscience clauses," "refusal clauses," and "abandonment laws" (III, Appel 2005, p. 279), are not limited to professional ethics, but also draw from philosophical, theological, and legal perspectives. The purpose of this Scope Note is to present a wide variety of viewpoints on the health provider's right to conscience.More than 40 years ago the development of "The Pill" as the first reliable method of birth control not only ushered in a feminist revolution, but also provided a new focus for concerns of conscience for those who were part of the anti-abortion movement based on religious belief in the sanctity of life. Similarly, in the past ten years, worldwide, and seven years (1999) since the emergency contraception "morning after" pill first became available as a prescription item, there has been an upsurge in the number of medical personnel who refuse to prescribe or dispense it on grounds of personal conscience, whether for religious reasons or not. Their actions bring into play issues of power and control for health care personnel and for patients—in this case women, which also raises women's rights issues. Ironically, studies in France, Sweden, and the United Kingdom have shown that emergency contraception does not reduce the abortion rate—it is too infrequently used (II, Glasier 2006).It is important to underline the difference between the "morning-after" pill or "Plan B," which is made up of two progestin pills containing levonorgestrel (a synthetic derivative of the female hormone progesterone), and RU-486 (Mifiprex [End Page 379] or mifipristone with misoprostol). Plan B, if taken within 72 hours post-coitus prevents implantation, and therefore pregnancy, by suppressing the output of luteinizing hormone, the hormone that triggers the ovulation process. Scientists have been unable to determine whether this action could destroy already fertilized eggs, but even if it does, it uses the same mechanism as occurs with the birth-control pill, that was developed some 45 years ago. By contrast, RU-486 acts up to 49 days after implantation by blocking the action of progesterone in order to terminate the pregnancy and as such is an abortifacient (II, US FDA 1).On 24 August 2006, the U.S. Food and Drug Administration announced approval of the Plan B pill for over-the-counter (OTC ) sales (II, US FDA 2). Although this action makes the drug more widely available, it remains to be seen whether pharmacists who are conscientious objectors and who refuse to dispense it also will refuse to provide it OTC.A survey article by Rebecca Dresser (II, 2005, p. 9) succinctly sums up the problem for conscientious objectors: "Because emergency contraception can act to block implantation of a fertilized egg, people who believe in protection of human life after conception find it morally objectionable."When conscientious objections are raised over abortion or birth control services performed, prescribed, or dispensed, they affect not only the health professionals—physicians, pharmacists, nurses, and health technicians—who may object, as well as their colleagues and/or managers, but also the consumers: the female patients who are then forced to reconsider or to seek an alternative supplier, as well as their spouses or partners. Alta Charo (II, 2005, p. 2473) makes the point that the patient needs to have access to a system of counseling and referral "so... (shrink)

Governmental and non-governmentalagencies worldwide have devoted considerablefinancial, technical, and organizational efforts toconstruct or rehabilitate irrigation infrastructure inthe last three decades. Although rural povertyalleviation was often one of their aims, evidenceshows that rights to irrigated land and water wererarely vested in poor men, and even less in poorwomen. In spite of the strong role of irrigationagencies in vesting rights to irrigated land and waterin some people and not in others, the importance ofagencies‘ targeting practices is still ignored.This article (...) disentangles how public irrigationagencies either included or excluded women and mensmallholders as right holders to irrigated land andwater. This is done on the basis of significant casestudies from Africa, Asia, and Latin America thatpoint in both positive and negative directions. Thegeneral conclusions are the following. Rights toirrigated land are related to the site-selection andphysical design of land-bound irrigationinfrastructure. These rights are vested in the pooreither by implementing a localized land reform or bydirectly selecting poor people‘s land forimprovement. Among all potential land users in aselected site, water rights have to be defined. Thepoor are included as title holders if water rights arevested in land users rather than land owners, and inboth women and men, rather than in male householdheads. A common condition to get water rights is thatone has to participate in construction investments.Agencies need, firstly, to open up this condition forthe poor, also for women, and, secondly, ensure thatpoor people‘s investments are linked to rights.Parallel to vesting land and water rights, externalagencies influence the composition of the local forumsin which decisions on land and water rights arerefined, endorsed, and implemented, and they influencethe order in which project activities are planned andundertaken. Early inclusion of the poor in theseforums and crystallization of expropriation andallocation criteria and procedures before constructionstarts are pivotal for poverty alleviation. (shrink)

(Early) Modern social contract theories reject the idea that legal and political institutions are grounded in an alleged natural ordering or hierarchy of human beings, and instead argue that only government by a public (and not private) authority can fulfil the idea of justice as freedom and equality for all. To be authoritative and not just powerful, governing institutions must be shared as ours in this irreducible sense. I first outline how Kant’s ideal account of rightful freedom brilliantly transforms this (...) tradition as found in the works of Hobbes, Locke, and Rousseau, before proposing a way to see Kant’s two-layered non-ideal theory—his accounts of human nature (“moral anthropology”) and historical societies (“the principle of politics”)—as complementing his ideal theory of rightful freedom. This enables us to envision a conception not only of rightful external freedom but of rightful human freedom in particular societies—with their histories—on planet Earth. With these arguments at hand, we can also better appreciate the importance of realizing that the four possible political conditions for Kant—anarchy, barbarism, despotism, and republic—are ideas of reason, which means that they are never perfectly realized. Hence, historical societies we are not either in the state of nature or in civil society. In addition, in historical societies founded on principles of freedom, there are pockets of injustice or pockets that are devoid of justice that can only be captured by means of one of the three political ideas that are not constitutive of the republican legal-political framework. Kant’s four ideas therefore give us more tools with which to capture the nature of different political forces and challenges facing us in our historical societies. (shrink)

Motive and Rightness is the first book-length attempt to answer the question, Does the motive of an action ever make a difference in whether that action is morally right or wrong? Steven Sverdlik argues that the answer is yes. His book examines the major theories now being discussed by moral philosophers to see if they can provide a plausible account of the relevance of motives to rightness and wrongness. Sverdlik argues that consequentialism gives a better account of these matters (...) than Kantianism or certain important forms of virtue ethics. In carrying out the investigation Sverdlik presents an analysis of the nature of motives, and he considers their relations to normative judgments and intentions. A chapter is devoted to analyzing the extent to which motives are 'available' to rational agents, and the importance of feelings and unconscious motives. Historical figures such as Kant, Bentham, Mill and Ross are discussed, as well as contemporary writers like Korsgaard, Herman, Hurka, Slote and Hursthouse. Motive and Rightness is unusual in its interweaving of ethical theory, both historical and contemporary, with moral psychology, action theory, and psychology. (shrink)

PHILOSOPHY OF HUMAN RIGHTS: HUMAN RIGHTS IN LIGHT OF THEIR INTERNATIONAL PROTECTION Summary The book consists of two main parts: in the first, on the basis of an analysis of international law, elements of the contemporary conception of human rights and its positive legal protection are identified; in the second - in light of the first part -a philosophical theory of law based on the tradition leading from Plato, Aristotle, and St. Thomas Aquinas is constructed. The (...) conclusion contains an application of the results of the analysis conducted in the second part. The first part comprises four chapters. The first aims at revealing characteristics of human rights on the basis of an analysis of historical conditioning of the inter-national law of human rights and its development. The historical context displays the practical, vindicative, and critical character of the positive legal protection of human rights. Moreover, the process of change of positive human rights law is distinguished from the process of change of human rights as such. In the second chapter the content of human rights - a topic which is only auxiliary to the conducted analysis - is discussed. Basic typology and catalogues of rights proclaimed in the Universal Declaration of Human Rights and protected in the International Covenants of Human Rights are presented. The review of the content of rights aims at a more precise limitation of the field of research. The examination shows a diversity of rights which poses a serious challenge to the coherence of every philosophical theory of human rights. In the third chapter, central in the first part, international law is analyzed with regard to the characteristics of rights and the foundations of them. The analysis of documents shows a number of solutions referring to the anthropological foundations of rights. The inherent dignity of the human person is the source of all human rights. Each human being is recognized as free, and endowed with both reason and conscience. In the propounded conception of man individuals are not rivals but create a community which is a condition for their development. International law characterizes the rights as universal, inherent, inalienable and inviolable. The reconstructed conception also comprises the following basic elements: on the level of the structure of rights, a recognition of their equality, interdependence, and comprehensiveness; in the grounding of these rights, a recognition of the anthropological foundations of law; in the conception of positive law, a recognition of the secondariness of the positive law of human rights to human rights themselves, and a recognition of human rights and justice as the basis for legal order; in the conception of state, a recognition of the well-being of the individual as the fundamental aim of actions undertaken by political institutions, and recogni¬tion of rights which form an impassable boundary to the power of the state, includ¬ing its legislative actions. The characterization of the international legal paradigm serving for the under¬standing of human rights is supplemented by analyses of the structure of their posi¬tive legal protection. Various meanings of the terms "right" and "freedom" are distinguished. Subjective right, as basic structure of the positive legal protection of human rights, is understood as a complex relation formed by various legal situations of the subject of a right which create a functional whole in respect of the subordi-nation of human person to its good. Subordinating person to a good proper for it, expressed usually in a proclamatory norm, is the central element of particular rights around which further elements aiming at the realization of this good are built. In the second part of the book a philosophical theory is developed which allows for the location of a coherent foundation for the presented characterization of human rights and their positive legal protection. This part consists of two chapters. The first includes a review of some - not entirely satisfactory - means of founding of human rights; the second presents philosophical conceptions of law and man which may form a basis for the constructed theory. The review of arguments contained in the first chapter does not aim at a detailed analysis of various specific ways of argumentation encountered in works on this subject but rather at a concise presentation of the main possible lines of argumentation. These analyses also serve to emphasize the positive solutions which are pro¬posed later and to underscore the explanatory power of the elaborated theory. This theory, retaining accurate intuitions contained in the presented types of argumenta¬tion, helps in avoiding their consequences which are difficult to reconcile with the reconstructed paradigm of human rights. Efforts to base human rights on the norms of international law rightly take into account the necessity of determining the content of the rights and their positive legal protection as a means for the realization of man's good. These attempts, how¬ever, do not properly take into account the inherent character of human rights, which are independent of positive law and provide grounds for applying specific legislative measures and not others. Founding human rights on freedom accurately points at the freedom of an indi¬vidual as a constitutive element of some rights; however, absolutization of freedom leads, to a loss of an important element of the contemporary paradigm of under¬standing human rights. This foundation undermines recognition of the fact that human rights may set limits to both the freedom of others and the freedom of the subject of rights itself. Additionally, attempts at the so-called axiological justification of human rights are discussed. This type of justification has a few variants depending on the as¬sumed conception of value. Subjectivistic conceptions have similar advantages and disadvantages to the conceptions basing human rights on freedom; objectivistic conceptions while providing for the universality of human rights place, the fundamental aim of human rights protection beyond the individual human being - in the idealistically existing world of values; finally, conceptions rooting values and human rights in culture, while accurately noting that human rights are learned through the medium of culture, place the source of human rights beyond a concrete individual - in culture and processes which take place in it - which leads to difficulties in finding a basis for the universality of rights. Furthermore, attempts to ground human rights in specific characteristics of the human being are presented. This type of approach points to an important problem of dependence of the content of rights on what man is. However, recognition of specific characteristics of a human being as an ontic foundation of the existence of rights poses a danger to their universality since one has to accept that it is not enough to be a man to be a subject of rights, but a man possessing specific charac¬teristics. The second chapter aims at outlining solutions worked out by Saint Thomas Aquinas. For a fuller understanding of his propositions selected elements of Plato's and Aristotle's philosophy are presented. It was them who formulated the founda¬tions for reflection on law and justice in the ontological context. A qualification is made that Stoicism is not be analysed in depth. Although Thomas' concept of law was undoubtedly developed under the influence of the Stoic doctrine as well, it is not in this that one should look for the tools to understand the ontic foundations of human rights and law in general since the Stoic moral philosophy and philosophy of law were developed in the context of a theory of being which assumed monistic and pantheistic premises as foundations, leading to the recognition of a total subor¬dination of the human individual to a larger unity of which man is only a part. The analysis of Plato's and Aristotle's texts concentrates on problems of justice. Plato seems to be the first philosopher who reflected on the formula basic in the history of European thought: to render to each his due. It appears that justice as both a characteristic of man and his acts is understood in the perspective of that which is just, that which is a good for another man - the recipient of the act. The basis for determining what is just is the relation of correspondence between some¬one and something. While in the case of Plato this relation is based on something beyond its terms, namely on ideas, in the case of Aristotle the relation occurs on account of the elements of the relation itself. Something is just when it contributes to the develop¬ment of the recipient of an act realizing that which is just. At the same time, the realization of that which is just is a good for the agent. In the analysis of the just two types of relation are revealed: the relation of due-to-recipient occurring on account of the compatibility of that which is due, with the recipient of the act; and - a "superstructure" - a relation of obligation-of-subject occurring on account of the compatibility of the acting subject with the thing which should be done. The basis for being that which is due is formed by various potentialities of development of man - the recipient of agency; the basis of being that which is an obligation is the possibility of development of the subject of action. Aristotle distinguishes various types of freedom and points to the necessity of taking them into account in the discussion of justice. Among other things, as the core of man's freedom, he considers life for its own sake, which can be seen as his expression of the basic indices of the autotelic character of man - which is funda¬mental for later conceptions of dignity. The freedom which is described by him is not, however, inherent and inalienable; being free is conditioned by a factual possi¬bility of undertaking actions, which are not solely means to the realization of aims set by others. Thomas Aquinas takes over the Aristotelian research perspective both in his conception of man and of law. At the same time, however, he significantly enriches it. In anthropology he develops a conception of personal being. Drawing upon his distinction between existence ("that something is") and essence ("what something is"), he sees the basis for being a person in the dignity of personal being which is a certain way of existence of a rational being more perfect than that of non-personal beings. The person is a being which, by virtue of its act of existence, is individual¬ized in a specific way. It is an aim in itself. Expressing it in a negative way, one may say that it does not exist as a means for the realization of the aims of others and, in this sense, that it is free. As distinct from Aristotelian conclusions, being a person is not conditioned by the specific actions of a being. Dignity is inherent, based on that which is the foundation of the factual existence of every rational being. Although freedom requires that a being is rational, dignity still encompasses all being, all its properties and potentialities. Thus an act conforming with dignity has to take into account a whole human being. Among different types of that which is just, ius, the first place, from the point of view of understanding law, falls to "the just thing itself ("ipsa res justa"), which is right in the full meaning of the word. On the one hand, it is that which is due; on the other hand, it determines the way of acting in the utmost degree, since the course of every act is determined in the fullest extent by its aim. The content of ius may be determined both by elements independent of free decisions - ius naturale - and by free decisions taking into account the state of things - ius positivum. Recognition of the objective structure of being as the basis of law does not entail that it is possible or desirable to determine unequivocally "the only right" patterns of conduct. This concept is very well justified within the system proposed by Saint Thomas. Individualization of being is a significant element of the develop¬ment of a person as a person. It is attained by the realization of individual aims which are not unequivocally determined by circumstances and the nature common to all people. By virtue of free choices made in the sphere of that which is not by its nature unjust, the object of action becomes ius. Since in the realization of the person the individualization of human being is central, Aquinas clearly sees the need for the protection of the sphere of "dominion of will". This sphere itself constitutes ius naturale, something which is due to man independently of the acts of will. Therefore "law should forbid nothing which is not unjust" ("nihil debet lege prohiberi quod licite fieri potest", In 3 Sent., dist. 40, q. I, a. 1, 3). Besides the relation of due-to-recipient, ius also includes the relation of obligation-of-subject which is superimposed on the relation of due-to-recipient. As far as the ontic foundations of obligation are concerned, in explaining why man is subordinated to realization of the good of others, Aquinas generally follows Aristotle in accepting that this basis is the subordination to moral good - to actions conforming with the learned truth about reality. Aquinas' systemic solutions allow, however, to reach deeper and understand why moral development is also a development of the whole human being. This was difficult within Aristotle's system, since he was reluc¬tant to decide whether precedence should be given to intellectual or moral develop¬ment. The inclination to realise good of another appears to be a transcendental characteristic of being, based on its very existence. Morality understood as rational and free subordination to realize the good of another is a specifically personal way of the realization of this inclination. Thus just actions contribute to the actualization of being in the aspect of its existence and therefore to the actualization of being as a whole. Thomas' conception of natural law (lex naturalis) as participation in eternal law (lex aeterna), offers possibilities for grasping that which is just as something which is basically accessible cognition, independently of Revelation and independently of faith in God, and at the same time as something based in eternal law, understood as a design of God's wisdom. Eternal law, embracing all particular actions, is not, from the human perspective, accessible cognition directly. It is enacted in the struc-ture of the created being and - in case of human beings - in free choices taking this structure into account. In the concluding remarks, the results obtained earlier are applied directly to the contemporary conception of human rights. Human rights are understood in the first place as "just things" - concrete goods of man; as that which is due because of subordination, based on dignity, to the personal development of man. That which is just is understood as a relational - actual or potential - state of things, which exists by virtue of existing relations. Evaluations referring to that which is right are true when respective relations of due-to-recipient take place; norms of conduct are true when respective relations of obligation-of-subject take place. Examples of the application of the sketched theory outside the field of human rights are also presented. Procedural consequences of the developed theory are shown, such as the discrimination of two types of legislative procedures which differ significantly in the structure of argumentation: the first aims at recognition of that which is just independently of the will of the legislator, and the second, at making individual or collective "projects" of development compatible. Finally the possibilities of applying the theory to the increasingly important problems of the protection of the environment and the "rights" of animals are mentioned. The central issue is a philosophical conception of man and his freedom and a conception of law. It is also indispensable to turn to a general theory of being. The search for a comprehensive theory of human rights requires attention to the Abso¬lute Being - God - as well. This is important for at least two reasons. First, a conception of the Absolute Being is integral to philosophy of the systemic type -of which the present book is a piece. A conception of the Absolute Being is signifi¬cant for understanding all being, including, first of all, man as a personal being. Second, every theory of human rights which does not comprise the problem of the Absolute may be questioned as to whether solutions adopted in it do not lead, in consequence, to eliminating God from the perspective of the understanding of law. It is desirable that a philosophical theory should deal with this problem directly. A theory which eliminates God from the perspective of the understanding of rights will be unacceptable for all those who, for philosophical reasons or relying on faith, consider God as the author of inherent rights. Nevertheless, a theoretical approach to rights from the perspective of the Absolute Being should only be a possible extension of a philosophical approach which bases rights on something which is cognizable independently of the acceptance of the existence of God so that the theory is also acceptable for those who reject the existence of God or suspend their judgment on this subject. The pursued theory should therefore contain, on the one hand, reference to natural, faith-independent foundations of human rights, but on the other hand, point to a possible extension accounting for the Absolute Being. The analyses contained in this chapter have undoubtedly some historical value since they are based on source texts. Nevertheless, the use of these texts and not critical works was dictated, first of all, by a conviction that analyses embrace a given theory in the aspect selected by the interests of the researcher. Therefore to find out what past thinkers say on the subject characterized in the first part it is simpler to reach to the sources than to adopt the existing critical works. The pre¬sented reconstruction of Aquinas' views on philosophy of law incorporates proposi¬tions of supplementing and developing some of the ideas undertaken by him. Obligation to act in this and not an other way arises because human actions are subordinated to the conformity, on the one hand, of aims realized by these actions and, on the one hand, the order of being determining that which is favourable to man or destroys him. The content of the order of being is, on the one hand, determined by the structure of being independent from man's will and, on the other, by free decisions of man. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

:This essay explores the meaning and normative significance of Locke’s depiction of individuals as proprietors of their own person. I begin by reconsidering the long-standing puzzle concerning Locke’s simultaneous endorsement of divine proprietorship and self-ownership. Befuddlement vanishes, I contend, once we reject concurrent ownership in the same object: while God fully owns our lives, humans are initially sole proprietors of their own person. Locke employs two conceptions of “personhood”: as expressing legal independence vis-à-vis humans and moral accountability vis-à-vis (...) God. Humans own their person in the first sense. As original proprietors of their own person, individuals are entitled to subject themselves to self-chosen authorities, thereby incurring obligations of obedience. But they may not choose just any authority. Divine ownership of human life delimits personal self-ownership by restricting the ways in which humans can dispose of their persons: we cannot possibly consensually subject ourselves to absolute and arbitrary power. Locke’s rights-forfeiture theory for crime makes slavery and despotism nonetheless potentially rightful conditions. I argue that, paradoxically, divine dominium of human life underpins both the impermissibility of voluntary enslavement and the justifiability of penal slavery. My analysis helps explain why modern Lockean theories of self-ownership that reject Locke’s theological premises have adopted an ambiguous stance toward despotic rule. (shrink)

The article takes up the difficult problem of the so-called disobedience of judges against the background of the experiences of the Polish departure from constitutional democracy in 2015–2020. The special role and responsibility of a judge in the state imposes restrictions on her freedom of opinion in the public sphere. Openly manifesting opposition to government policy, which in the case of an ordinary citizen is only the implementation of human rights and freedoms, may be described as controversial and contrary (...) to applicable ethical regulations. The main thesis of this paper is the assertion that although judges who act as impartial arbitrators in disputes should generally refrain from ostentatiously opposing the actions of political authorities, they are not deprived of the possibility of protest. Also in the exercise of office, and not outside the sphere of their duties, judges should take into account overriding moral values that should be implemented by the legal order, and not the values or declarations guiding the government policies. The integrity of the judge, which prescribes restraint in statements and actions in the public sphere, as well as the care for the dignity of the office held, should not be confused with absolute subordination to the legislature or the executive, even if the judge is obliged to apply the law. The traditional attitude of the members of the judiciary, consisting in focusing only on the application of the law in individual cases and the lack of any political involvement, is being reviewed in the face of the spread of majoritarianism and the law abuse as normal techniques of exercising public authority. The disobedience of judges—although difficult to defend at first sight—may seem to be the only possible way to draw public attention to the corruption of the state system. The ‘disobediant’ judges can even be assigned the role of ‘whistleblowers’, which should help to ease their legal liability or their future rehabilitation. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:LettersJames L. Walsh, Moira M. McQueen, Kevin O'Rourke, and Jean deBloisEarly Delivery of the Anencephalic InfantMadam:In the March 1994 issue of the Kennedy Institute of Ethics Journal, Kevin O'Rourke and Jean deBlois have replied to an article of ours (KIEJ, December 1993) on the early induction of the anencephalic fetus. They agree with our conclusion that such early delivery may be morally acceptable, but argue that our justification (...) is flawed. Exchanges on the subject probably could continue ad nauseam; here we simply state some of the elements of their article that leave us perplexed.1. The phrase "prolonging the life of" (p. 49) has one meaning in the case of artificial life supports, which may be unwarranted interventions, but it has a different meaning when it refers to not interfering with a person's enjoyment of necessary natural means of preserving his or her life. Inducing labor prior to viability, which denies the natural means of life support without a possible substitute, has more in common with smothering a dying patient than the nonemployment of or withdrawing of artificial means of life support. To refer to the death of the fetus here as an effect is rather like saying that I suffocated you and the effect of the suffocation is your death. This is quite different from induction after viability where the induction can have different effects.2. If the authors were correct that "the prohibition on inducing delivery before viability is predicated upon the assumption that the fetus in utero is a human being with the potential for further development" (p. 49) and the anencephalic has none, why is there need to employ the principle of double effect? They say that there is no moral obligation to prolong the life of the anencephalic fetus. Just as there is no need for the principle in cases of withdrawing unwarranted artificial life support, so there would be no need for it here. Because the authors seem to perceive a complete disjunction between direct and indirect killing (allowing to die being in the category of indirect killing), it seems that they are unable to let their argument rest here, but have to justify the death that occurs.3. The example concerning smothering and the nonemployment of aggressive interventions (p. 49) explains well the difference between killing and allowing to die. But allowing to die is not indirectly killing since it occurs as a result of the disease and not from the causality of the agent.4. How can we cause something and not intend it? There are instances in which we simply "permit" evil events, but where we are not the cause. For example, evil events may be attributable to the bad will of others. Legislators make just laws knowing that some people of bad will will break them for their own advantage. Here the legislators really do permit evil. Neither are we the cause of death when we allow a person to die by not imposing unwarranted means of life support; we permit his or her death. But can we so readily designate by "permit" [End Page 184] what we knowingly choose to bring about? O'Rourke and deBlois use interchangeably "indirectly intended" and "unintended" for what is caused by our actions; "indirectly intended" is a better designation than "unintended." The whole package, including all foreseen effects, is intended. Evil "happening" (p. 51) as a result of an action that I place can refer either to evil as caused by my action or to evil as arising from a cause apart from my action. Only in this latter sense do I permit evil and not intend it, either directly or indirectly.5. The fourth condition of the principle of double effect is given as follows: "There must be a proportionately grave reason for placing the act. The greater the evil, the more cogent the reason must be for performing the act" (p. 50). How the authors can abstract from balancing goods and evils here is beyond us.6. We cannot follow the authors' use of the term "morally good" with respect to the induced delivery (p. 50). The problem is concerned with the morally right... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:LettersJames L. Walsh, Moira M. McQueen, Kevin O'Rourke, and Jean deBloisEarly Delivery of the Anencephalic InfantMadam:In the March 1994 issue of the Kennedy Institute of Ethics Journal, Kevin O'Rourke and Jean deBlois have replied to an article of ours (KIEJ, December 1993) on the early induction of the anencephalic fetus. They agree with our conclusion that such early delivery may be morally acceptable, but argue that our justification (...) is flawed. Exchanges on the subject probably could continue ad nauseam; here we simply state some of the elements of their article that leave us perplexed.1. The phrase "prolonging the life of" (p. 49) has one meaning in the case of artificial life supports, which may be unwarranted interventions, but it has a different meaning when it refers to not interfering with a person's enjoyment of necessary natural means of preserving his or her life. Inducing labor prior to viability, which denies the natural means of life support without a possible substitute, has more in common with smothering a dying patient than the nonemployment of or withdrawing of artificial means of life support. To refer to the death of the fetus here as an effect is rather like saying that I suffocated you and the effect of the suffocation is your death. This is quite different from induction after viability where the induction can have different effects.2. If the authors were correct that "the prohibition on inducing delivery before viability is predicated upon the assumption that the fetus in utero is a human being with the potential for further development" (p. 49) and the anencephalic has none, why is there need to employ the principle of double effect? They say that there is no moral obligation to prolong the life of the anencephalic fetus. Just as there is no need for the principle in cases of withdrawing unwarranted artificial life support, so there would be no need for it here. Because the authors seem to perceive a complete disjunction between direct and indirect killing (allowing to die being in the category of indirect killing), it seems that they are unable to let their argument rest here, but have to justify the death that occurs.3. The example concerning smothering and the nonemployment of aggressive interventions (p. 49) explains well the difference between killing and allowing to die. But allowing to die is not indirectly killing since it occurs as a result of the disease and not from the causality of the agent.4. How can we cause something and not intend it? There are instances in which we simply "permit" evil events, but where we are not the cause. For example, evil events may be attributable to the bad will of others. Legislators make just laws knowing that some people of bad will will break them for their own advantage. Here the legislators really do permit evil. Neither are we the cause of death when we allow a person to die by not imposing unwarranted means of life support; we permit his or her death. But can we so readily designate by "permit" [End Page 184] what we knowingly choose to bring about? O'Rourke and deBlois use interchangeably "indirectly intended" and "unintended" for what is caused by our actions; "indirectly intended" is a better designation than "unintended." The whole package, including all foreseen effects, is intended. Evil "happening" (p. 51) as a result of an action that I place can refer either to evil as caused by my action or to evil as arising from a cause apart from my action. Only in this latter sense do I permit evil and not intend it, either directly or indirectly.5. The fourth condition of the principle of double effect is given as follows: "There must be a proportionately grave reason for placing the act. The greater the evil, the more cogent the reason must be for performing the act" (p. 50). How the authors can abstract from balancing goods and evils here is beyond us.6. We cannot follow the authors' use of the term "morally good" with respect to the induced delivery (p. 50). The problem is concerned with the morally right... (shrink)

Is there a prima facie obligation to produce additional individuals whose lives would be worth living? In his paper ‘Is it Good to Make Happy People?’, Stuart Rachels argues not only that there is, but, also, that precisely as much weight should be assigned to the quality of life that would be enjoyed by such potential persons, if they were to be actualized, as to the quality of life enjoyed by actually existing persons. In response, I shall argue, first, (...) that Rachels’ view is exposed to very serious objections, and secondly, that his arguments in support of his position involve a crucial assumption, which cannot be sustained, concerning the relation between, on the one hand, propositions about good‐making and bad‐making properties, and, on the other, propositions about right‐making and wrong‐making ones. I shall then argue that there is a very plausible position concerning the conditions under which an action can be morally wrong which entails the following asymmetry: there is a prima facie obligation not to bring into existence individuals whose lives are not worth living, but there is no corresponding obligation to create additional individuals whose lives would be worth living. (shrink)

In this essay I analyze some conceptual difficulties associated with the demand that global institutions be made more democratically accountable. In the absence of a world state, it may seem inconsistent to insist that global institutions be accountable to all those subject to their decisions while also insisting that the members of these institutions, as representatives of states, simultaneously remain accountable to the citizens of their own countries for the special responsibilities they have towards them. This difficulty (...) seems insurmountable in light of the widespread acceptance of a state-centric conception of human rights, according to which states and only states bear primary responsibility for the protection of their citizens' rights. Against this conception, I argue that in light of the current structures of global governance the monistic ascription of human rights obligations to states is no longer plausible. Under current conditions, states are bound to fail in their ability to protect the human rights of their citizens whenever potential violations either stem from transnational regulations or are perpetrated by non-state actors. In order to show the plausibility of an alternative, pluralist conception of human rights obligations I turn to the current debate among scholars of international law regarding the human rights obligations of non-state actors. I document the various ways in which these obligations could be legally entrenched in global financial institutions such as the WTO, the IMF and the World Bank. These examples indicate feasible methods for strengthening the democratic accountability of these institutions while also respecting the accountability that participating member states owe to their own citizens. I conclude that, once the distinctions between the obligations to respect, protect and fulfill human rights are taken into account, no conceptual difficulty remains in holding states and non-state actors accountable for their respective human rights obligations. (shrink)