Rousseau has always had an uncertain relationship with the theory of constituent power. On the one hand, his distrust of political representation and support for popular sovereignty seem consistent with the idea of the people as a legally unlimited constitution-maker. On the other hand, if, from those views about representation and sovereignty, it follows that Rousseau is a proponent of direct democracy, then there seems to be no place in his thought for a theory that presupposes, above all, a separation (...) between those who exercise a delegated authority and those who possess an original constitution-making power. In a legal order in which all laws must be directly made by the people, such a separation is absent: the constituent and the legislative body are one and the same. It is therefore not surprising that Rousseau’s name is largely absent from contemporary literature on constituent power. In this article, however, I will show that once Rousseau’s particular conception of law, as well as his distinction between sovereignty and government, are properly understood, one finds in his work not only the first major formulation of the theory of constituent power, but also a careful exploration of its implications for actual constitutional practice. (shrink)
The relationship between democracy and constitutions is a long and fractious one. Those who lean towards the constitutionalist side have tended to perceive democracy as a threat to political order and the preservation of important values, whereas those who take a more democratist stance tend to treat constitutions as elite hindrances to popular rule as much as anything else. In this paper, we will give the constitutionalist thesis a broader theoretical and political scrutiny. By way of explanation, we will address (...) and recommend the possibilities and problems for putting into practical operation such an anti-constitutionalist stance; the recent experience of the U.S. State of California offers itself as a good forcing-ground for these ideas. In short, from a democratic standpoint, the challenge for the citizenry is not so much about defining the values of constitutions, but constitutions whose change is outside the scope of popular decision making, supposed to exclusively take place through judicial interpretation or through an amendment formula designed precisely to make change difficult and unlikely. Too often, constitutions place checks and limits on democratic participation in the name of some other set of vaunted truths or elite-favouring values. For the strong democrat, it is formal constitutions and their institutional paraphernalia that do more to inhibit and dull democracy's emancipatory potential than to nurture and fulfil it. (shrink)
In And I Said No Lord, photographer and writer Joel Katz presents a pictorial chronicle of his travels through the shifting islands of fear and loss, freedom and deliverance that was segregated Mississippi during the Freedom Summer of 1964.
My review of Cornelius Castoriadis' book Crossroads in the Labyrinth ended with the apt reference, I now see, to the emperor being naked. In Joel Whitebook's second review, largely irrelevant to my criticisms of Castoriadis, he fears, though he doesn't know me personally, that only the lack of psychological counseling can explain my uncontrolled anger against Castoriadis. Let me dignify his long distance psychoanalysis by passing over it in silence. Silence is also the best remedy for Whitebook's transcendental deduction (...) that I have a “pluralistic, localistic, discontinuous ontology.” Even if I knew what that was I find it amazing that he located it in a 10 page review. Perhaps Whitebook just “feels” the presence of this ontology along with evidence of my mental problems. (shrink)
Joel Kupperman's latest book is a wide ranging discussion of many of the leading issues in contemporary ethical theory. Its main aim is to advance a view which he calls "multi level indirect consequentialism" as a viable alternative to traditional act and rule consequentialist positions. Such a view purports to secure many of the agent centered constraints and options which are familiar from ordinary morality, as well as to take seriously considerations of fairness and respect for persons. Needless to (...) say, Kupperman's project is ambitious, and his book provides us with a preliminary sketch of the proposal. In what follows, I first summarize the two parts of Ethics and Qualities of Life and then offer some critical remarks. (shrink)
In a recent article, Joel Marks presents the amoralist argument against vivisection, or animal laboratory experimentation. He argues that ethical theories that seek to uncover some universal morality are in fact useless and unnecessary for ethical deliberations meant to determine what constitutes an appropriate action in a specific circumstance. I agree with Marks’ conclusion. I too believe that vivisection is indefensible, both from a scientific and philosophical perspective. I also believe that we should become vegan (unfortunately, like the two (...) philosophers mentioned by Marks, I too am still struggling to reduce my meat and dairy consumption). However, I am in the dark as to Marks’ vision of normative deliberations in the spirit of amoralism and desirism. (shrink)
Despite being assailed for decades by disability activists and disability studies scholars spanning the humanities and social sciences, the medical model of disability—which conceptualizes disability as an individual tragedy or misfortune due to genetic or environmental insult—still today structures many cases of patient–practitioner communication. Synthesizing and recasting work done across critical disability studies and philosophy of disability, I argue that the reason the medical model of disability remains so gallingly entrenched is due to what I call the “ableist conflation” of (...) disability with pain and suffering. In an effort to better equip healthcare practitioners and those invested in health communication to challenge disability stigma, discrimination, and oppression, I lay out the logic of the ableist conflation and interrogate examples of its use. I argue that insofar as the semiosis of pain and suffering is structured by the lived experience of unwelcome bodily transition or variation, experiences of pain inform the ableist conflation by preemptively tying such variability and its attendant disequilibrium to disability. I conclude by discussing how philosophy of disability and critical disability studies might better inform health communication concerning disability, offering a number of conceptual distinctions toward that end. (shrink)
Russell's Principle states that in order to think about an object I must know which thing it is, in the sense of being able to distinguish it from all other things. I show that, contra Strawson, Evans and Cassam, Russell's Principle cannot be applied to first-person thought so as to yield necessary conditions of self-consciousness. Footnotes1 Thanks to Naomi Eilan, Keith Hossack, Lucy O'Brien and Ann Whittle for helpful comments.
In "Action and Responsibility,'' Joel Feinberg pointed to an important idea to which he gave the label "the accordion effect.'' Feinberg's discussion of this idea is of interest on its own, but it is also of interest because of its interaction with his critique, in his "Causing Voluntary Actions,'' of a much discussed view of H. L. A. Hart and A. M. Honoré that Feinberg labels the "voluntary intervention principle.'' In this essay I reflect on what the accordion effect (...) is supposed by Feinberg to be, on differences between Feinberg's understanding of this idea and that of Donald Davidson, and on the interaction between Feinberg's discussion of the accordion effect and his critique of the voluntary intervention principle. (shrink)
Various philosophers have argued that in order to be morally responsible, we need to be the "ultimate sources'' of our choices and behavior. Although there are different versions of this sort of argument, I identify a "picture'' that lies behind them, and I contend that this picture is misleading. Joel Feinberg helpfully suggested that we scale down what might initially be thought to be legitimate demands on "self-creation,'' rather than jettison the idea that we are truly and robustly responsible. (...) I follow Feinberg in rejecting various "inflated'' demands on "origination,'' "initiation,'' or ultimate sourcehood. (shrink)
I take issue with two suggestions of Joel Feinberg's: first, that it is incoherent to suppose that human life as such is absurd, and, second, that a particular human life may be absurd and yet saved from being tragic by being fulfilled. I also argue that human life as such may well be absurd and I consider various responses to this.
This is the first book to offer the best essays, articles, and speeches on ethics and intelligence that demonstrate the complex moral dilemmas in intelligence collection, analysis, and operations. Some are recently declassified and never before published, and all are written by authors whose backgrounds are as varied as their insights, including Robert M. Gates, former Director of the Central Intelligence Agency; John P. Langan, the Joseph Cardinal Bernardin Professor of Catholic Social Thought at the Kennedy Institute of Ethics, Georgetown (...) University; and Loch K. Johnson, Regents Professor of Political Science at the University of Georgia and recipient of the Owens Award for contributions to the understanding of U.S. intelligence activities. Creating the foundation for the study of ethics and intelligence by filling in the gap between warfare and philosophy, this is a valuable collection of literature for building an ethical code that is not dependent on any specific agency, department, or country. (shrink)
Most anti-paternalists claim that informed and competent self-regarding choices are protected by autonomy, while ill-informed or impaired self-regarding choices are not. Joel Feinberg, among many others, argues that we can in this way distinguish impermissible “hard” paternalism from permissible “soft” paternalism. I argue that this view confronts two related problems in its treatment of ill-informed decision-makers. First, it faces a dilemma when applied to decision-makers who are responsible for their ignorance: it either permits too much, or else too little, (...) intervention to satisfy its proponents. Second, the most promising rationales in favor of the view ignore the distinction between an agent’s voluntarily bringing about some state of affairs, on the one hand, and an agent’s voluntarily assuming a risk, on the other. I conclude that a decision-maker’s ignorance is irrelevant to the permissibility of intervention on her behalf. If it is permissible to intervene in a given ill-informed choice, it would be permissible to intervene in an otherwise similar but informed choice, at least provided that intervention would produce similar benefits in both cases. This shows that we should sometimes accept straightforwardly paternalistic rationales. (shrink)
In this paper I argue that Joel Feinberg was wrong to suppose that liberals must oppose any criminalization of “harmless immorality”. The problem with a theory that permits criminalization only on the basis of his harm and offense principles is that it is underinclusive, ruling out laws that most liberals believe are justified. One objection (Arthur Ripstein’s) is that Feinberg’s theory is unable to account for the criminalization of harmless personal grievances. Another (Larry Alexander’s and Robert George’s) is that (...) it cannot account for public decency laws. I shall reject both of these underinclusiveness objections in favor of one that focuses on the “free floating evil” of corpse desecration. Liberals need “pure” legal moralism (PLM) to explain their support for a criminal ban on mistreatment of the dead. I also argue that while deterrence is plausibly regarded as the primary rationale for criminalizing and punishing wrongs like murder or rape, it is not plausibly regarded as any part of the rationale for criminalizing free floating evils. The point of punishing corpse desecrators has to be either retribution or the promotion of virtue/discouraging of vice. Finally, I consider Feinberg’s reason for rejecting all PLM, namely, that competent adults have a right to personal sovereignty or autonomy, and the state’s duty to respect that right trumps the desirability of punishing or reducing the vice associated with harmless immorality. I argue that Feinberg’s argument here fails because it exaggerates the right’s strength and scope. (shrink)
In order to determine whether a particular course of conduct is ethically permissible it is important to have a concept of what it means to be harmed. The dominant theory of harm is the counterfactual account, most famously proposed by Joel Feinberg. This determines whether harm is caused by comparing what actually happened in a given situation with the ‘counterfacts’ i.e. what would have occurred had the putatively harmful conduct not taken place. If a person's interests are worse off (...) than they otherwise would have been, then a person will be harmed. This definition has recently faced challenges from bioethicists such as John Harris, Guy Kahane and Julian Savulescu who, believing it to be severely flawed, have proposed their own alternative theories of the concept. In this article I will demonstrate that the shortcomings Harris, Kahane and Savulescu believe are present in Feinberg's theory are illusory and that it is their own accounts of harm that are fraught with logical errors. I maintain that the arguments presented to refute Feinberg's theory not only fail to achieve this goal and can be accommodated within the counterfactual account but that they actually undermine the theories presented by their respective authors. The final conclusion will be that these challenges are misconceived and fail to displace the counterfactual theory. (shrink)