This article will review reasons why it is argued that the law on abortion on the grounds of disability is discriminatory, as well as recent unsuccessful attempts to address this discrimination in the law. These attempts include ones which would have moderately restricted access to abortion in certain limited cases, and another that might have opened to door to a number of different possibilities, including both to options that could have restricted access to abortion, and to other options that might (...) have increased access. Finally, this article will also examine reasons why some of the most important challenges surrounding disability equality cannot be sufficiently addressed through legal change alone. While there are strong reasons to support some form of change in the law, a more foundational change in values is necessary if we want to live in a more ethical society that is truly capable of welcoming disabled children. (shrink)

Ratio Juris, Volume 35, Issue 1, Page 30-37, March 2022.

This paper examines the legal and ethical aspects of traceback testing, a process in which patients who have been previously diagnosed with ovarian cancer are identified and offered genetic testing so that their family members can be informed of their genetic risk and can also choose to undergo testing. Specifically, this analysis examines the ethical and legal limits in implementing traceback testing in cases when the patient is deceased and can no longer consent to genetic testing.

What is the meaning of punishment today? Where is the limit that separates it from the cruel and unusual? Clearly, for the use of violence to be legitimate it must be subject to limitation. The difficulty is that the determination of this limit should be objective, but it is not. It is this contestability of the limit that this book addresses.

This first volume in the four-volume series The Moral Limits of the Criminal Law focuses on the "harm principle," the commonsense view that prevention of harm to persons other than the perpetrator is a legitimate purpose of criminal legislation. Feinberg presents a detailed analysis of the concept and definition of harm and applies it to a host of practical and theoretical issues, showing how the harm principle must be interpreted if it is to be a plausible guide to the (...) lawmaker. (shrink)

This article focuses on Grotius’s treatment of obligations arising from wrongdoing in his Inleidinge. The work has clear parallels with the natural law formulation of the same topic in De Jure Belli ac Pacis, and this article explores the extent of the similarities. It focuses on points of divergence, suggesting that the theoretical coherence of the natural law approach to obligations arising from wrongdoing was challenged primarily by extant legislative enactments. These provided either for region-specific doctrines, or rules that proved (...) difficult to reconcile with the underlying principles of natural law, especially the primacy of fault. While much of the Inleidinge’s treatment of liability arising from wrongdoing is consonant with Grotius’ approach to the topic in De Jure Belli ac Pacis, these discrete points of dissimilarity serve as a reminder of the limits of theoretical accounts of private law. (shrink)

In this volume, Feinberg focuses on the meanings of "interest," the relationship between interests and wants, and the distinction between want-regarding and ideal-regarding analyses on interest and hard cases for the applications of the concept of harm. Examples of the "hard cases" are harm to character, vicarious harm, and prenatal and posthumous harm. Feinberg also discusses the relationship between harm and rights, the concept of a victim, and the distinctions of various quantitative dimensions of harm, consent, and offense, including the (...) magnitude, probability, risk, and "importance" of harm. (shrink)

The second volume in Joel Feinberg's series The Moral Limits of the Criminal Law, Offense to Others focuses on the "offense principle," which maintains that preventing shock, disgust, or revulsion is always a morally relevant reason for legal prohibitions. Feinberg clarifies the concept of an "offended mental state" and further contrasts the concept of offense with harm. He also considers the law of nuisance as a model for statutes creating "morals offenses," showing its inadequacy as a model for understanding (...) "profound offenses," and discusses such issues as obscene words and social policy, pornography and the Constitution, and the differences between minor and profound offenses. (shrink)

These four volumes address the question of the kinds of conduct may the state make criminal without infringing on the moral autonomy of individual citizens.

This article will review reasons why it is argued that the law on abortion on the grounds of disability is discriminatory, as well as recent unsuccessful attempts to address this discrimination in the law. These attempts include ones which would have moderately restricted access to abortion in certain limited cases, and another that might have opened to door to a number of different possibilities, including both to options that could have restricted access to abortion, and to other options that might (...) have increased access. Finally, this article will also examine reasons why some of the most important challenges surrounding disability equality cannot be sufficiently addressed through legal change alone. While there are strong reasons to support some form of change in the law, a more foundational change in values is necessary if we want to live in a more ethical society that is truly capable of welcoming disabled children. (shrink)

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

The final volume of Feinberg's four-volume work, The Moral Limits of Criminal Law examines the philosophical basis for the criminalization of so-called "victimless crimes" such as ticket scalping, blackmail, consented-to exploitation of others, commercial fortune telling, and consensual sexual relations.

The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This (...) model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law. (shrink)

A theory of customary international law -- Case studies -- A theory of international agreements -- Human rights -- International trade -- A theory of international rhetoric -- International law and moral obligation -- Liberal democracy and cosmopolitan duty.

The article examines the practice of the applicability of the Article 18 of the International Covenant on Civil and Political Rights (hereinafter—ICCPR) and Article 9 of the European Convention on Human Rights and Fundamental Freedoms (hereinafter—ECHR). Through the case—law of the European Court on Human Rights (hereinafter—ECtHR) and insights of the Human Rights Committee the author is investigating the content and limits of the freedom of religion. The article examines in detail the limiting clauses to the freedom of belief (...) (national security, public order, public health, public morals) and the possibility to apply derogation clause. The author comes to the conclusion that due to the complexity of this right it is difficult to forecast the future developments of this right. The jurisprudence of the ECtHR is numerous as well as the decisions of the Court are often accompanied by dissenting opinions. Moreover, some potential cases related to the freedom of religion are not considered by the ECtHR as the admissibility criteria are not met. Therefore the author looks forward to the forthcoming jurisprudence of both—regional and universal human rights bodies. (shrink)

This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the (...) action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices. (shrink)

The question of the relationship of the State and the law is one of the oldest questions of the history of the theory of state. It is one of those fundamental issues which can be regarded as real dividing lines: the decision one takes in this theoretical question determines a lot in the thinker's later theory. It is difficult to find the reasons for this phenomenon. One might argue that this is so because these two concepts are so basic, that (...) while one has to use them quite frequently, one would hardly dare to define them. But even if we accept this aversion from clearcut definitions, the explanation of why the relationship of these two concepts is so important is an unavoidable task for a number of reasons. (shrink)

Are preventive justice measures justified? Do they needlessly blur the boundaries between criminal and civil law, signalling a change in the architecture of security? The contributors in this volume re-assess the foundations for the range of coercive measures that states now take in the name of prevention and public protection.

This volume brings together a collection of essays, many of them scholarly classics, which form part of the debate around three questions central to criminal law theory: firstly, what conduct should be necessary for criminal liability, and what sufficient? Secondly, what culpability should be necessary for criminal liability, and what sufficient? Finally, essays consider the question of how criminal law rules should be best organized into a coherent and clarifying doctrinal structure.

George P. Fletcher, Basic Concepts of Criminal Law New York: Oxford University Press, 1998, xi + 223 pp.

The harm principle, understood as the normative requirement that conduct should be criminalized only if it is harmful, has difficulty in dealing with those core cases of criminal wrongdoing that can occur without causing any direct harm. Advocates of the harm principle typically find it implausible to hold that these core cases should not be crimes and so usually seek out some indirect harm that can justify criminalizing the seemingly harmless conduct. But this strategy justifies criminalization of a wide range (...) of conduct on the basis of the fear, worry, and anxiety it generates among those who are not the direct victims of the conduct, and thereby undermines the limiting role of the harm principle by permitting the very move it was meant to prevent: the criminalization of harmless conduct on the ground of others’ feelings about it. The best way to avoid this dilemma is to recognize that people have rights, operating independently of the harm principle, to be treated in certain ways just because they are persons. The existence of such rights provides a ground for both criminalizing conduct and limiting the scope of criminalization because these rights point both to conduct that people must be permitted to engage in and conduct that might well be criminalized. A complete account of criminal law will therefore require the harm principle to work together with an independent account of rights. (shrink)

This is a book about the theory of the city or commonwealth, what would come to be called the state, in early modern natural law discourse. Annabel Brett takes a fresh approach by looking at this political entity from the perspective of its boundaries and those who crossed them. She begins with a classic debate from the Spanish sixteenth century over the political treatment of mendicants, showing how cosmopolitan ideals of porous boundaries could simultaneously justify the freedoms of itinerant beggars (...) and the activities of European colonists in the Indies. She goes on to examine the boundaries of the state in multiple senses, including the fundamental barrier between human beings and animals and the limits of the state in the face of the natural lives of its subjects, as well as territorial frontiers. Drawing on a wide range of authors, Brett reveals how early modern political space was constructed from a complex dynamic of inclusion and exclusion. Throughout, she shows that early modern debates about political boundaries displayed unheralded creativity and virtuosity but were nevertheless vulnerable to innumerable paradoxes, contradictions, and loose ends.Changes of State is a major work of intellectual history that resonates with modern debates about globalization and the transformation of the nation-state. (shrink)

On one level, the focus of The Limits of Criminal Law is captured by its title—the book is concerned with the legitimate boundaries of the criminal law. Lauterwein sets out different approaches to this topic in the German and Australian legal contexts. The book does not formally adopt a comparative methodology, but rather presents ‘an analysis using contextual and comparative elements’ (p. 45). He concentrates on analysing discussion of the limits of the criminal law in Australia, using the (...) German legal theoretical approach as a counterpoint. But, on another level, the book is concerned with the features of criminal legal scholarship in these two national contexts and the influence of this scholarship (in the author’s words, ‘legal theorizing’) on the criminal law in their respective traditions. As a result, The Limits of the Criminal Law addresses both the question ‘what sorts of behaviour may the state legitimately make criminal?’ (a question that is expressly posed by the author) an .. (shrink)

The present paper studies the relationship between criminal law and exception. In the first part are presented the categories of legality and legitimacy, in relation to the crisis of the liberal state. The second part presents the theory of Agamben on the state of exception, seeing a connection with the legal theory of Jakobs.

The Limits of Free Will presents influential articles by Paul Russell concerning free will and moral responsibility. The problems arising in this field of philosophy, which are deeply rooted in the history of the subject, are also intimately related to a wide range of other fields, such as law and criminology, moral psychology, theology, and, more recently, neuroscience. These articles were written and published over a period of three decades, although most have appeared in the past decade. Among the (...) topics covered: the challenge of skepticism; moral sentiment and moral capacity; necessity and the metaphysics of causation; practical reason; free will and art; fatalism and the limits of agency; moral luck, and our metaphysical attitudes of optimism and pessimism. (shrink)

A number of writers have drawn on Hayek’s epistemic defence of market institutions to argue that free-markets and tort law are best placed to overcome the knowledge problems associated with the environmental sphere. This paper argues to the contrary, that this Austrian School approach itself suffers from significant knowledge problems. The first of these relates to the ability of Austrian economics to assign victim compensation and the second to the difficulty of establishing causation in complex environmental problems. The paper will (...) also show how alternative approaches may not suffer from these epistemic challenges and are better placed to overcome them. (shrink)