Abstract—How do judges decide cases? Are judges controlled by rules, principles and professional standards of reasoning or do they decide as politicians, using the law as an instrument to achieve predetermined goals. In Australia one influential view on this issue was expressed by Sir Owen Dixon when he called for a ‘strict and complete legalism’ for judges. Dixon’s strict legalism no longer commands the respect that it once did and his view is now commonly seen as naïve or as a (...) noble lie intended to hide the freedom open to judges when they decide cases. This article examines first Dixon’s understanding of strict legalism. It will argue that Dixon understood it as a form of practice and not as a rigorous scholarly system. Secondly, it will analyse Wilson v Darling Island Stevedoring to see whether the leading judgment of Fullagar J is in accord with Dixon’s judicial method. In Wilson the High Court was presented with a persistent legal problem—could stevedores claim the benefits of exemption and limitation clauses that commonly featured in bills of lading arising from the transport of goods and people? The third section of the article will consider the obvious belief of many of the judges in the authorities examined that the commercial inconvenience of not protecting stevedores was too great to ignore. These judges were willing to grant stevedores the protection of exemption clauses in contracts of carriage, a trend that continued, indeed accelerated, after Wilson. So, even if Fullagar J did judge as a strict legalist, does this perceived commercial imperative raise doubts about the appropriateness of this style of judging? In conclusion the article will consider the implications of showing that the reasoning in Wilson displayed a fidelity to Dixon’s notion of strict and complete legalism. (shrink)

Peter Abelard (1079–1142 ce) was the most wide‐ranging philosopher of the twelfth century. He quickly established himself as a leading teacher of logic in and near Paris shortly after 1100. After his affair with Heloise, and his subsequent castration, Abelard became a monk, but he returned to teaching in the Paris schools until 1140, when his work was condemned by a Church Council at Sens. His logical writings were based around discussion of the “Old Logic”: Porphyry's Isagoge, aristotle'S Categories and (...) On Interpretation and boethius'S textbook on topical inference. They comprise a freestanding Dialectica (“Logic”; probably c.1116), a set of commentaries (known as the Logica [Ingredientibus], c. 1119) and a later (c. 1125) commentary on the Isagoge (Logica Nostrorum Petititoni Sociorum or Glossulae). In a work Abelard called his Theologia, issued in three main versions (between 1120 and c.1134), he attempted a logical analysis of trinitarian relations and explored the philosophical problems surrounding God's claims to omnipotence and omniscience. The Collationes (“Debates,” also known as “Dialogue between a Christian, a Philosopher and a Jew”; probably c.1130) present a rational investigation into the nature of the highest good, in which the Christian and the Philosopher (who seems to be modeled on a philosopher of pagan antiquity) are remarkably in agreement. The unfinished Scito teipsum (“Know thyself,” also known as the “Ethics”; c.1138) analyses moral action. (shrink)

For many years feminists have asserted an "intersection" between sex and race. This paper, drawing heavily on the work of Michel Foucault, offers a genealogical account of the two concepts showing how they developed together and in relation to similar political forces in the eighteenth and nineteenth centuries. Thus it attempts to give a concrete meaning to the claim that sex and race are intersecting phenomena.

Bodies and Pleasures has been characterized as a confessional discourse that manages to subvert confessional practice. Here it is characterized and discussed as an askesis that works to transform confessional practice as it transforms the writer/reader. Two questions emerge through that transformation: How is race to be lived? What are the possibilities for political subjectivity in the absence of dualism and the intensification of awareness of our normalization?

Over the past 15 years we have seen the rise of a field of inquiry known as Whiteness Studies. Two of its major tenets are (1) that white identity is socially constructed and functions as a racial norm and (2) that those who occupy the position of white subjectivity exercise ‘white privilege’, which is oppressive to non-whites. However, despite their ubiquitous use of the term ‘norm’, Whiteness Studies theorists rarely give any detailed account of how whiteness serves to normalize. A (...) case is made here that we can only understand how whiteness normalizes if we place the development of white racial subject positions within the context of the development of normalizing biopower that Foucault describes in his work through the 1970s. Once that context is provided, it becomes clear that a larger problem exists in Whiteness Studies, one evident in the use of the concept of ‘white privilege’. Whiteness Studies theorists have not thoroughly critiqued the juridical conception of power that they have inherited from traditional political theory; as a result, they cannot get away from psychological accounts of the origins of racism, even though they usually state very clearly that they believe racism is an institutional phenomenon and racist subject positions are formed within networks of power. If Whiteness Studies is to accomplish both its analytical and its political goals, its theorists need to pay close attention to Foucault’s work on biopower. (shrink)

In Bodies and Pleasures, Ladelle McWhorter reads Foucault from an original and personal angle, motivated by the differences this experience has made in her life.

Does the black struggle for civil rights make common cause with the movement to foster queer community, protest anti-queer violence or discrimination, and demand respect for the rights and sensibilities of queer people? Confronting this emotionally charged question, Ladelle McWhorter reveals how a carefully structured campaign against abnormality in the late 19th and early 20th centuries encouraged white Americans to purge society of so-called biological contaminants, people who were poor, disabled, black, or queer. Building on a legacy of savage (...) hate crimes—such as the killings of Matthew Shepard and James Byrd—McWhorter shows that racism, sexual oppression, and discrimination against the disabled, the feeble, and the poor are all aspects of the same societal distemper, and that when the civil rights of one group are challenged, so are the rights of all. (shrink)

Research in zoos is an important scientific endeavor that requires several complex considerations in order to occur. Among those many considerations are the ethics involved in conducting zoo research. However, it is not always clear how zoo researchers should go about resolving any research ethics matters, even determining when some type of research ethics committee should be involved in those deliberations. Our paper attempts to provide some resolutions for these issues, namely in three sections: (1) a brief history of human (...) and animal research ethics, (2) general guidelines for zoo research ethics applications, and (3) theoretical, ethical dilemmas at the zoo. In each section, we consider pragmatic attempts to resolve any issues, as well as provide examples to illustrate our points. The primary focus of the paper is to facilitate consideration of the wide array of ethical factors any zoo researcher might encounter, as well as provide a basic set of ethical guidelines for zoo research. We also emphasize the importance of the welfare of the animals for all zoo research projects. (shrink)

Problems and solutions are given from a Heideggerian point of view for saving the earth.

On the morning of February 11, 2015, the lead editorial in the New York Times was entitled “Lynching as Racial Terrorism.” I took great pleasure in it. I did not actually read the editorial. What gave me pleasure was the title, which affirmed the analytic and genealogical position I took on lynching in my last book: Lynching in the early twentieth century in this country, I argued, was a technique not of sovereign power but of disciplinary power; its exercise was (...) decentralized, and its terrifying effects were felt in the bodies of entire populations who regulated their conduct accordingly—such is terrorism... (shrink)

Queer defies categorization and resists preset developmental trajectories. Practices of queering identities emerged near the end of the twentieth century as ways of resisting normalizing networks of power/knowledge. But how effective are queer practices at resisting networks of power/knowledge (including disciplines) that are not primarily normalizing in their functioning? This essay raises that question in light of expanding neoliberal discourses and institutions which, in some quarters at least, themselves undermine normalized identities in favor of a proliferation of personal styles susceptible (...) to governance through market forces. Special attention is given to Security, Territory, Population and The Birth of Biopolitics in this analysis. (shrink)

: For many years feminists have asserted an "intersection" between sex and race. This paper, drawing heavily on the work of Michel Foucault, offers a genealogical account of the two concepts showing how they developed together and in relation to similar political forces in the eighteenth and nineteenth centuries. Thus it attempts to give a concrete meaning to the claim that sex and race are intersecting phenomena.

Aquinas teaches that the acquired moral virtues associated with the civil life are to be differentiated from the gratuitous moral virtues associated with the spiritual life. An interpretation of Aquinas will benefit from situating his various remarks on the moral virtues within the context of his teaching regarding how Christian persons develop in virtue over time. In this account, Aquinas makes a distinction between the moral virtues exercised in this life and in heaven, as well as between three stages of (...) the Christian moral life in via. I argue that Aquinas indicates that for Christian persons the acquired moral virtues are retained in the active life in via, but not in patria. Further, claims that Aquinas makes regarding the relationship between the contemplative moral virtues and the active moral virtues provide an analogy for understanding how infused charity might relate to the acquired moral virtues. (shrink)

Certain teachings found in Gadamer’s hermeneutics are examined in order to help cultivate the historically-minded theological methodology proposed by Thomistic thinker Benedict Ashley. Consideration is given to four Gadamerian themes mentioned in Ashley’s introduction to Theologies of the Body: Interpretation is an intellectual inquiry that can be enriched by adopting hermeneutic reflection where such reflection is understood as a kind of a contemplative meta-praxis. Interpretation as the search for understanding involves a heuristic process. Hermeneutic reflection facilitates an interpreter becoming aware (...) that the work of interpretation itself occurs within a historical context. The process of interpretation is incomplete without the contemporary application of what is understood. With respect to each of these four themes, Ashley’s work is considered first and then the same topics are considered as found in the writings of Gadamer. (shrink)

Contemporary historians examining moral theology in the Middle Ages question whether the practice of proscribing certain kinds of human acts as intrinsic moral evils has a legitimate basis in the Christian ethical tradition. John Dedek argues that this proscription does not fully emerge until the work of the fourteenth-century thinker Durandus of St. Pourçain. Dedek’s historical focus, however, is upon theological discussions which consider God’s absolute power and his ability to dispense from or command any human act whatsoever. The focus (...) for addressing this question should be instead to examine how medieval thinkers understand the structural elements of a human act, especially in response to the ethical intentionalism promoted by the twelfth-century thinker Peter Abelard. An examination of Peter Lombard’s response to Abelard reveals that certain human acts were proscribed as intrinsic moral evils long prior to Durandus, and that Augustine serves as a source for this doctrine. (shrink)

Contemporary mental health professionals exhibit interest in integrating spirituality into the services they provide to clients. This clinical integration raises questions about both the goals of mental health services and the professional relevance of mental health providers’ spiritual competency. Drawing on the Christian anthropology of St. Thomas Aquinas, Benedict Ashley’s approach to psychotherapy differentiates psychopharmacological, psychotherapeutic, and spiritual approaches on the basis of the different domains of a client’s personality. These domains are the focus of different professions, and Ashley’s account (...) suggests that mental health providers who lack additional spiritual-moral training should adopt a clinical model that recognizes their work is spiritually oriented but not spiritually directive. (shrink)

Does Foucault’s work on sexuality open toward the possibility of a genealogy of sex understood as binary anatomical and genetic sexual difference? I believe that it does. I argue that, if we take s...

This essay provides a genealogy of corporate personhood as it exists currently in US law and places moral personhood in a similar genealogical context. This treatment demonstrates that the two are inextricably intertwined in both conception and institutionalized practices. We would do well to dismantle both; meanwhile, however, corporate personhood's implicit illiberal notion of collective mentality and responsibility may suggest possibilities for establishing collective counterforces to oppose activities of transnational for-profit corporations and mitigate their devastating political, economic, and environmental effects (...) upon actual people and the ecosystems upon which we depend. (shrink)

Charles Scott has always encouraged his students to take up the questions they find most troubling, difficult, and even possibly unanswerable. For him, philosophy is about movements of thinking themselves rather than arrival at reasonable conclu­sions. In tribute to Scott as a teacher, this paper takes up a troubling and perhaps unanswerable question: How might we teach our students today so as to prepare them for life in a world of ecological instability beyond what any member of our species has (...) ever experienced? It looks at the question of ethics in the midst of pollution, peak oil, and climate change. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Normalization and the Welfare StateLadelle McWhorterIn Racism and Sexual Oppression in Anglo-America, I argued that as race was absorbed into biology in the nineteenth century, it was recast from a morphological typology to a function of physiological and evolutionary development (McWhorter 2009b). Racial difference became a sign of developmental difference. Racial groups represented stages of human evolution, and raced individuals were to be disciplined and managed in accordance (...) with developmental norms.Twentieth-century race was therefore a category and tool of normalization; to be raced was to be located at a particular point along a developmental curve. Some races were thought to be more or less arrested in their development, while others were merely retarded, and theorists disagreed at times about which were which. But they all agreed that the most highly developed race was the Nordic or the Anglo-Saxon. Anglo-Saxons were the norm for modern human beings— anatomically, physiologically, intellectually, and morally. There were other white races whose status was debated (Mediterraneans and Ashkenazi Jews, for example), and there were disputes over the evolutionary status of Chinese, Hindus, and Mexicans. But most theorists agreed that at the very bottom of the developmental scale we should place Celts, Negroes, and American Indians. These peoples were savages, primitives. They should be trained to the extent possible to contribute to the society that had already superseded them, but their proper destiny was to pass away into extinction as humanity advanced.These evolutionary stragglers, along with the evolutionary throwbacks that appeared sometimes among whites, were considered dangerous for two main reasons. First, a great many of them were expensive. They were shiftless, often incompetent, and frequently lawless. Because of them, it was necessary to [End Page 39] maintain police forces, prisons, poorhouses, and asylums. They were a drain on the economic advance of society, which affected its educational and technological advance and ultimately its evolutionary advance as well. Second, because they had primitive sexual urges unrestrained by reason as well as heritable defects and diseases, they threatened the bloodlines of more advanced human beings. In short, they posed a risk for the ongoing evolutionary advancement of the entire Human Race. To protect the Race, it was necessary to contain these primitives, savages, and throwbacks and to reduce their numbers through careful management of their sexuality. This, I argued in the book, was racism’s cutting edge in the early twentieth century.Since publishing the book, I have done some work on the changes in practices of racism in the wake of the Biological Synthesis—that is, the unification of biology and genetics that occurred in the 1930s through the efforts of renowned scientists such as Theodosius Dobzhansky and Ernst Mayr (McWhorter 2010a, 2010b, 2010c). As I discussed in that work, by 1950, evolutionary biology was less a study of species development than it was a study of the effects of evolutionary forces acting on and within populations. Correlatively, racial practices shifted toward management of statistically delineated populations or ethnic groups. Theorists and policymakers recognized that not all members of a given population have the same genes, meaning that old-style racism (which assumed, for example, that all Negroes were stupid) was false; some Negroes might be quite brilliant, in fact. It was not The Negro who was stupid but the population of Negroes in the aggregate that was measurably stupider than the population of Anglo-Saxons. Accordingly, normalization now occurred at the level of the population. Disciplinary practices designed for cultivating the capacities of groups of individuals were altered or replaced to focus on groups as groups, as aggregates. The point was to shift the statistical norm of the population rather than to alter the bodies or behavior of each and every individual. I have argued elsewhere (McWhorter 2009a, 5) that this merger of disciplinary normalization and population management constitutes the full flowering of what Foucault calls biopower (Foucault 1978, 140).When Lisa Guenther invited me to speak at the plenary on “Re-thinking Whiteness” that took place at the fifth annual meeting of philoSOPHIA at Vanderbilt University, she explained that although many presenters offer polished papers, it has been a... (shrink)

Although Foucault adamantly refused to make moral pronouncements or dictate moral principles or political programs to his readers, his work offers a number of tools and concepts that can help us develop our own ethical views and practices. One of these tools is genealogical analysis, and one of these concepts is “biopower.” Specifically, this essay seeks to demonstrate that Foucault's concept of biopower and his genealogical method are valuable as we consider moral questions raised by genetic enhancement technologies. First, it (...) examines contemporary debate over the development, marketing, and application of such technologies, suggesting that what passes for ethical deliberation is often little more than political maneuvering in a field where stakes are very high and public perceptions will play a crucial role in decisions about which technologies will be funded or disallowed. It goes on to argue that genuine ethical deliberation on these issues requires some serious investigation of their historical context. Accordingly, then, it takes up the oft-heard charge from critics that genetic enhancement technologies are continuous with twentieth-century eugenic projects or will usher in a new age of eugenics. Foucault explicitly links twentieth-century eugenics with the rise of biopower. Through review of some aspects of the twentieth-century eugenics movement alongside some of the rhetoric and claims of enhancement's modern-day proponents, the essay shows ways in which deployment of genetic enhancement technologies is and is not continuous with earlier deployments of biopower. (shrink)

Most feminist theorists over the last forty years have held that a basic tenet of feminism is that women as a group are oppressed. The concept of oppression has never had a very broad meaning in liberal discourse, however, and with the rise of neo-liberalism since 1980 it has even less currency in public debate. This article argues that, while we may still believe women are oppressed, for pragmatic purposes Michel Foucault’s concept of practices of freedom is a more effective (...) way to characterize feminist theory and politics. (shrink)

In “Society Must Be Defended” Foucault examines 17th century race war discourse not so much in order to understand 20th century racism or concepts of race but primarily because it constitutes an historical example of an attempt to think power without a head or king. This essay examines his account of race war discourse and the sources he used to construct it. It then takes issue with his claim that early race war discourse can be separated from 18th and 19th (...) century racisms. Finally, it returns to the question of power and argues that the effect of the 1976 lecture series was to dislodge the sovereign model of power but also the model of power as war. (shrink)

: Bodies and Pleasures has been characterized as a confessional discourse that manages to subvert confessional practice. Here it is characterized and discussed as an askesis that works to transform confessional practice as it transforms the writer/reader. Two questions emerge through that transformation: (1) How is race (in particular, whiteness) to be lived? (2) What are the possibilities for political subjectivity in the absence of dualism and the intensification of awareness of our normalization?

This paper considers the following question: how can those whose thought is informed by poststructuralist values, arguments, and training legitimately teach the history of philosophy? In answering this question, three pedagogical approaches to courses in the history of philosophy are considered and criticized: the representational, the phenomenological, and the conversational. Although these three approaches are seemingly exhaustive, each is problematic because the question they attempt to answer rests on the false assumption that there is one, universally right way to teach (...) philosophy and many wrong ways. In rejecting this assumption, the author considers a new, more concrete, and contextualized question concerning teaching philosophy from a postmodern perspective. (shrink)