Faced with the choice between creating a risk of harm and taking a precaution against that risk, should I take the precaution? Does the proper analysis of this trade-off require a maximizing, utilitarian approach? If not, how does one properly analyze the trade-off? These questions are important, for we often are uncertain about the effects of our actions. Accordingly, we often must consider whether our actions create an unreasonable risk of injury — that is, whether our actions are negligent.
In this engaging study, the authors put casuistry into its historical context, tracing the origin of moral reasoning in antiquity, its peak during the sixteenth and early seventeenth century, and its subsequent fall into disrepute from the mid-seventeenth century.
The purpose of this article is to contribute to a more robust theory of leadership that shifts the frame of reference from leadership as exclusively facilitated through a single inspired leader to one that includes the view of leadership as an emergent and complex social phenomenon. The article begins with a review of the leader-centric approaches that dominated much of twentieth century leadership studies then moves on to present contemporary critiques of leader-centric approaches leading to an alternative perspective of leadership (...) as an emergent and complex social phenomenon. Viewing leadership as an emergent and complex social phenomenon changes our attitude regarding the roles that leaders and others play in the creation of leadership. A central theme of this article is the impact that the concept of emergence has on leadership theory. In response to this changing attitude, the article then moves to return to and reassess the ontological, epistemological and ethical grounds of leadership and concludes that there is an underlying philosophy that supports viewing leadership as an emergent social phenomenon and further suggests that recent work in virtue epistemology along with Calvin Schrag’s theory of communicative praxis and transversal rationality, can facilitate a better understanding of leadership as an emergent social phenomenon. (shrink)
Between 1924 and 1937, the Jesuit Curia in Rome repeatedly placed restrictions on what Jesuit priest‐paleontologist Pierre Teilhard de Chardin was allowed to write on those aspects of human origins that, in the view of the Curia, had theological as well as scientific aspects. In 2018, David Grumett and Paul Bentley published an account of the first of those restrictions, together with a previously undiscovered document associated with that restriction. This article corrects a relatively important error in their historical narrative, (...) offers an alternative to their comments about the case, and concludes by embedding the events of 1924–1925 in a slightly larger history of Teilhard's relations with the Jesuit Curia and with the Holy Office. That larger narrative shows that, while Grumett and Bentley's account was mistaken about the involvement of the Holy Office in the case they discuss, it was not wrong about the concerns of that Congregation in questions of human origins. (shrink)
Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a (...) concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)
Increasingly widespread adoption of health information technology tools in clinical care increases interest in ethical and legal issues related to the use of these tools for public health and the effects of these uses on the clinician-patient relationship. It is argued that patients, clinicians, and society have generally uncontroversial duties to support civil society's public health mission, information technology supports this mission, and the effects of automated and computerized public health surveillance are likely to have little if any effect on (...) the clinician-patient relationship. It is also suggested, nevertheless, that electronic public health surveillance raises interesting and important ethical issues, some of which can be addressed if not resolved by empirical research, especially regarding patient preferences about secondary use of health data and their moral obligation to contribute to population- based health. (shrink)
Negligence is both an important concept and an ambiguous one. Here I concentrate upon the sense of creating an unjustifiable, low-probability risk of future harm. This essay attempts to dispel theprevalent view that only a maximizing, utilitarian approach can render intelligible certain features of negligence analysis—its focus on the marginal advantages and disadvantages of the actor's taking a specific precaution, its consideration and balancing of the short-term effects of different actions, and its sensitivity to a multiplicity of factors. Perhaps certain (...) absolutist deontological perspectives are inconsistent with these features; but other deontological perspectives can easily accommodate them. Careful examination of the concept of negligence helps resolve an important debate about the nature of tort law, supporting the view that fault, rather than corrective justice, is the better interpretation and justification of Anglo-American tort doctrine. (shrink)
One of the largest, oldest, and most interesting challenges in health care is the balancing act in which clinicians have generally uncontroversial duties both to individual patients and to communities. Physicians and nurses must — so we teach them — put patients first, and at the same time recognize that individuals are members of communities. Individuals affect the health of communities, and communities affect the health of individuals. Thus, the moral and professional duties that result are sometimes in conflict.Moreover, the (...) traditional, prosaic clinical encounter is evolving in an environment increasingly shaped by electronic health records, personal health records, pharmacogenomics and vast networks of data collection and storage for public health surveillance, human subjects research, health services evaluation, and comparative effectiveness research. Health information technology is changing everything. It would be perverse otherwise: imagine large amounts of data and information either ignored, missed, or collected and then ignored. (shrink)
Francisco Ayala and others have argued that recent genetic evidence shows that the origins of the human race cannot be monogenetic, as the Church hastraditionally taught. This paper replies to that objection, developing a distinction between biological and theological species first proposed by Andrew Alexanderin 1964.
What is the proper role of cost-benefit analysis in understanding the tort concept of negligence or reasonable care? A straightforward question, you might think. But it is a question that manages to elicit groans of exasperation from those on both sides of the controversy. For most utilitarians and adherents to law and economics, the answer is obvious: to say that people should not be negligent is to say that they should minimize the sum of the costs of accidents and the (...) costs of preventing accidents. Under the economic formulation of the famous Learned Hand test, they should take a precaution if but only if the marginal costs (or burden, B) of that precaution are less than its marginal benefits (in the form of reduced risks of injury, measured by multiplying the probability (P) of the injury times the magnitude (L) of the injury if it occurs). If B>PxL, it would be absurd to require the greater expenditure, B. For many advocates of a fairness, corrective justice, rights-based, or contractualist perspective, the opposite answer is equally obvious. Permitting a person to impose risks of harm on others merely because he would thereby obtain a benefit (or would otherwise incur a burden) greater than the discounted value of the harm he might inflict, amounts to authorizing him to dump the costs of his risky activities on innocent victims. To permit this type of sacrifice of individuals on the altar of aggregate social welfare is morally abhorrent. Both sets of criticism have important elements of truth. Neither an unqualified cost-benefit analysis nor an unqualified rights-based rejection of tradeoffs is defensible - either as a description of tort doctrine and practice or as a normative prescription. However, a qualified (sensitive) consequentialist approach can accommodate legitimate criticisms of cost-benefit analysis: the consequentialist can launder preferences, and can consider the distribution of risk both in the social welfare calculus and in determining whether to compensate. At the same time, a qualified (tough-minded) deontological approach can accommodate the legitimate need to recognize tradeoffs: the deontologist can permit intrapersonal but not interpersonal aggregation of risks and benefits, can apply the concept of threshold deontology to risky activity, and can consider individual rather than population risk. I conclude that the formulation of the Learned Hand test found in the Restatement Third of Torts is broad enough to encompass each of these qualified approaches. (shrink)
This article argues that the Mondragon cooperatives, a network of worker-owned businesses in the Basque region of Spain, offers a concrete example of Deweyan economy, wherein democracy is part of everyday work-life. It first identifies three central features of Deweyan economy: a) its notion of economic growth is rooted in human growth; b) it is organic and evolutionary, not ideological or utopian; and c) it is empirical and experimental. Second, the article sketches some of the important historical and phi-losophical influences (...) upon and distinct features of the Mondragon cooperatives, and, third, it indicates how the Mondragon cooperatives manifest each of the three central fea-tures of Deweyan economy. The article concludes by suggesting that the Mondragon co-operatives have achieved a previously unknown level of economic democracy and that its recent modifications in response to changing economic conditions, far from being retreats from fundamental principles, as some critics maintain, are evidence of Mondragon’s ex-perimental, non-ideological character. Furthermore, it is an economic model that tran-scends the stale, false capitalist-socialist dichotomy and thereby helps us to imagine crea-tive solutions to current economic problems. (shrink)
This article explores different dimensions of the concept of negligence in the law. The first sections focus on the fundamental distinction between conduct negligence, a conception that dominates tort law; and cognitive negligence, a conception that is much more important in criminal law. The last major section identifies five significant institutional functions served by a legal negligence standard: expressing a legal norm in the form of a standard rather than a rule; personifying fault; empowering the trier of fact to give (...) content to the standard; creating a secondary legal norm parasitic on a primary legal norm; and distinguishing grades of fault. These functions reveal the distinctive significance of negligence, but also disclose numerous problems that the use of such a legal standard can pose. Careful analysis of these different dimensions of negligence clarifies certain misconceptions and has important implications. For example, the question whether "negligence" is an appropriate minimum standard of liability is unanswerable until we identify the type of negligence at issue and its role in norm-definition. Similarly, comparing negligenceto supposedly "more serious" forms of fault, such as recklessness, knowledge, and purpose, is treacherous and sometimes amounts to comparing apples and oranges. A better understanding of the different conceptions of negligence and of the distinctive institutional functions of a legal negligence standard can facilitate the development of more coherent, and more justifiable, fault criteria in criminal law, torts, and other legal domains. (shrink)
1. Comparing the weight of different evils is highly problematic; neither a positivist, interpretive account nor an exclusively aspirational account is satisfactory. 2. Alexander is correct that choosing a lesser evil is sometimes a mandate, not a mere permission, but the point has wider application than he indicates. 3. Is a choice of lesser but not least evil justifiable? Alexander’s affirmative answer is only partially convincing. 4. Alexander endorses a striking claim: the very notion of a reckless belief or reckless (...) mistake (as to the factual grounds for a justification) is incoherent. This claim is insupportable, but the flaws in his argument demonstrate the complexity of the concept of reckless belief, especially in the context of justiﬁcation defenses, where the probabilistic aspect of the distinction between permissible and impermissible risk-taking is especially salient. 5. Alexander aptly notes that the legislatively preclusion doctrine (which denies application of the lesser evils defense) creates a fundamental tension between legal actors’ power to articulate the content of the defense and the democratic pedigree of the criminal law. I conclude that genuinely democratic principles can be served by permitting juries considerable latitude to recognize a defense when the legislature has not yet had occasion to formulate an exception, or even, in some cases, by authorizing de facto civil disobedience. (shrink)
Conscience and Conscientious Objection of Health Care Professionals Refocusing the Issue Content Type Journal Article Pages 351-364 DOI 10.1007/s10730-009-9113-x Authors Natasha T. Morton, The University of Western Ontario Ontario Canada N6A 5B9 Kenneth W. Kirkwood, Arthur and Sonia Labatt Health Sciences Building London Ontario Canada N6A 5B9 Journal HEC Forum Online ISSN 1572-8498 Print ISSN 0956-2737 Journal Volume Volume 21 Journal Issue Volume 21, Number 4.
Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an (...) actor? Should he be punished as harshly as an intentional or knowing killer? This article offers a framework for analysing these difficult questions. After rejecting a broad forfeiture justification for strict liability in grading, it articulates a more promising set of arguments, premised on the actor’s ‘change of normative position’ by choosing to commit a crime. Three principles of culpability sometimes justify strict liability in grading: holistic culpability, attention to the degree of unjustifiability of the risk, and rough comparability in culpability. Strict liability in grading can be appropriate when the risk of committing the more serious crime (i) is a risk intrinsic to the less serious crime or (ii) is minimally foreseeable. The article also addresses the relevance of moral luck, ie the principle that the fortuitous occurrence of a result or circumstance increases the actor’s just deserts. Even if moral luck is recognized, it cannot fully justify strict liability in grading. (shrink)
Every scholar and reader of William James is aware of his frequent uses of "energy," especially in his discussions of ethics and most notably in his 1906 Presidential Address to the American Philosophical Association, "The Energies of Men". But while other interpretations treat James's use of "energy" as merely one of his several folksy metaphors, The Ethics of Energy: William James's Moral Philosophy in Focus is the first monograph, as its author, Sergio Franzese, rightly claims, to focus upon "energy" as (...) a central concept in James's ethics. Ethics, for James, is not about values, goods, or principles but about the organization of energy, especially into habits, in the service of personal, aesthetic ideals. As such this book is an original and valuable addition to the literature on James, and it does much to bring James into closer dialogue with other recent efforts to rethink ethics without appeal to some rule of reason, whether it be in the form of an utilitarian calculus or a categorical imperative. Such efforts include those of Friedrich Nietzsche, whom Franzese discusses extensively, Max Scheler, whom he mentions only briefly (51-52), and especially Michel Foucault, whom he does not mention at all. (shrink)
The intersection of ethics, computing, and genetics plots a space not yet adequately mapped, despite its importance, indeed, its rapidly growing importance. Its subdomains are well-enough known: or the study of ethical issues in genetics and genomics, is part of core curricula everywhere. Ethics and computing is an established subfield. Computing and geneticshas in little more than a decade progressed from subsubspecialty to the sine qua non of contemporary biomedical research, and it bids fair to transform clinical practice. We must (...) prepare for the complete digitization of the genomes of individual patients and the storage of millions of these genomes in very large databases. (shrink)
In 300 BCE, the tutor of the heir-apparent to the Chu throne was laid to rest in a tomb at Jingmen, Hubei province in central China. A corpus of bamboo-strip texts that recorded the philosophical teachings of an era was buried with him. The tomb was sealed, and China quickly became the theater of the Qin conquest, an event that proved to be one of the most significant in ancient history. For over two millennia, the texts were forgotten. But in (...) October 1993, they were unearthed. The discovery of the Guodian texts, together with other recently discovered Warring States manuscripts, has revolutionized the study of early Chinese intellectual history. Kenneth Holloway argues that the Guodian corpus puts forth a political philosophy based on the harmonious interconnection of individuals engaged in moral self-cultivation. This unique worldview, says Holloway, cannot meaningfully be categorized as "Confucian" or "Daoist," because it shares important concepts and vocabulary with a number of different textual traditions that have anachronistically been characterized as competing or incompatible "schools" of thought. He finds that within the Guodian corpus familiar philosophical concepts and texts are applied in distinctive ways, presenting a worldview that is quite different from the received textual traditions. In the corpus, the most important function of government is to assist in the harmonization of state and family relations. It sees the relationship between these two entities - the family and the collection of families that ultimately constitute the state - as being inherently conflicting social groupings. The texts posit an interesting solution: State and family disharmony can be overcome by developing a hybrid government that employs both meritocratic and aristocratic methods. Without knowledge of the emphasis on hybridization found in the Guodian texts, however, scholars were unable to understand the interrelationships between these two methods of government. This new understanding illuminates central issues of government, religion, and philosophy in early China that were overlooked in received texts. As part of the contribution to our understanding of this particular body of texts, Holloway proposes a methodology for assessing a corpus of texts without relying on assumptions and definitions that derive from two thousand years of scholarship. The Guodian corpus, and Holloway's analysis of it, are now absolutely indispensable to any student or scholar of ancient Chinese intellectual history. (shrink)
This article compares reflections from four sources on the state of the American democracy in the international community: The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to 2000 ; 1999: Victory Without War ; and "Communism at Bay," The Economist; Long Cycles in World Politics.
In this paper, I attempt to develop the account of intellectual virtues offered by Aristotle and St. Thomas in a way which recognizes faith as a good intellectual habit. I go on to argue that, as a practical matter, this virtue is needed not only in theology, where it provides the basis of further intellectual work, but also in the natural sciences, where it is required given the complexity of the subject matter and the cooperative nature of the enterprise.