In an age of constitutional revolutions and reforms, theory and practice are moving in opposite directions. As a matter of constitutional practice, human dignity has emerged in jurisdictions around the world as the organizing idea of a groundbreaking paradigm. By reconfiguring constitutional norms, institutional structures and legal doctrines, this paradigm transforms human dignity from a mere moral claim into a legal norm that persons have standing to vindicate. As a matter of constitutional theory, however, human dignity remains an enigmatic idea. (...) Some explicate its meaning in abstraction from constitutional practice, while others confine themselves to less exalted ideas. The result is a chasm that separates constitutional practice from a theory capable of justifying its innovations and guiding its operation. By expounding the connection between human dignity and the constitutional practices that justify themselves in its light, Jacob Weinrib brings the theory and practice of constitutional law back together. (shrink)
Correlativity and personality -- The disintegration of duty -- Remedies -- Gain-based damages -- Punishment and disgorgement as contract remedies -- Unjust enrichment -- Incontrovertible benefit in Jewish law -- Poverty and property in Kant's system of rights -- Can law survive legal education?
This paper characterises Deleuze and Guattari's conception of the majoritarian subject in A Thousand Plateaus as a particular – and inevitably transitory – manifestation of sexed and gendered subjectivity emerging with late capitalism from the always mutating flows of creative life and suggests that their notion of the schizo or nomadic subject can inspire feminist solutions to the impasses posed by contemporary forms of sexed, gendered, and sexual identity. Feminism can thus be conceived as a schizoanalytic practice that fosters the (...) kind of alternative subjects for which Deleuze and Guattari call: subjects that move beyond oppressive self–other relations towards a form of subjectivity that can welcome differences as well as the differentiating force of life itself. (shrink)
This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which combines Kantianism (...) with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)
In his ‘On a Supposed Right to Lie from Philanthropy’ Kant makes the astonishing claim that one is not entitled to lie even to save a friend from a murderer. This claim has been an embarrassment for Kant's defenders and an indication of Kant's excessive rigour for his detractors. Responses to SRL fall into three main groups. The first of these groups, that of Kant's critics, claim that SRL demonstrates that Kant's ethical views are so rigorous that they become abhorrent (...) in practice. The second group, Kant's defenders, argues that Kant's conclusions in SRL do not follow from his own ethical principles. The third group, made up of scholars who are generally sympathetic to Kant's position, attempts to explain why a liar is responsible for all the bad consequences that follow from his act by providing an account of Kant's theory of imputation. (shrink)
Plato's Crito is not a treatise on obedience to the law, but a dialogue whose interpretation is not determined by its surface meaning. The initial dream is not mere ornamentation; rather it points to the range of possibilities in Socrates' situation. The speeches of the Laws, with which the dialogue closes, are not intended to be philosophically cogent, since they are inconsistent with the principles laid out in the preceding conversation between Socrates and Crito. The arguments of the Laws are (...) rather directed towards Crito, Socrates' decent and unphilosophic friend. (shrink)
If there is one point on which defenders and critics of the doctrine of proportionality agree, it is that Dworkin's rights as trumps model stands as a radical alternative to the doctrine. Those who are sympathetic to proportionality reject the rights as trumps model for failing to acknowledge that there are conditions under which a right may be justifiably infringed. In turn, those who regard rights as trumps reject the doctrine of proportionality for failing to take rights seriously. This paper (...) argues that each of these views is mistaken. On the one hand, Dworkin's rights as trumps model elides with a prominent version of the proportionality doctrine. On the other, this version takes rights seriously. (shrink)
. In Aristotle's account, corrective and distributive justice are not particular substantive ideals, but are rather the formal patterns that inhere in interactions and in the legal arrangements that regulate them. Corrective and distributive justice are the structures of ordering internal to transactions and distributions, respectively. The Aristotelian. forms of justice thus constitute the rationality immanent to the relation ships of mutually external beings. This article stresses Aristotle's formalism, contrasting it to modem instrumental conceptions of legal rationality, and defending it (...) against Kelsen's allegations of emptiness. The article concludes with the suggestion that corrective justice, as the conceptual pattern that makes private law what it is, can be considered the formal and final cause of private law. (shrink)
Over the last few decades, corrective justice has established itself as central to serious academic discussion of the normative dimension of tort liability. This article describes the consensus about corrective justice that is presently emerging, as is evident from work of the author and from recent work of other tort theorists. The framework for discussing this emerging consensus is what the article calls "the juridical conception of corrective justice." The juridical conception seeks to explicate the most general ideas implicit in (...) liability as a normative practice in which the plaintiff makes a claim against the defendant. Under the juridical conception, corrective justice is the synthesis of two complementary abstractions: correlativity and personality. Correlativity articulates at the most general level the relationship between the interacting parties as doer and sufferer of the same injustice. Personality, i.e., the idea of purposiveness regardless of one's particular purposes, similarly articulates at the most general level the conception of the interacting parties that is presupposed in a regime of rights and their correlative duties. The leitmotif of the emerging consensus is the idea of correlativity, which is now effectively accepted by all of the theorists mentioned, even by those who initially rejected it. Personality, on the other hand, has gained less support, because of the apprehension that it implies that rational agency, as elaborated by Kant or Hegel, is a philosophical truth from which tort theory can be derived. This reason for dismissing personality is insufficient. Corrective justice comes into view not by being derived from a notion of rational agency but by reflection on the most general ideas implicit in liability as a normative practice. Personality is merely the abstraction that represents the parties as the bearers of rights and their correlative duties. Like correlativity, it owes its status within corrective justice to its being implicit in the law's doctrines and institutions. Consequently, whether the Kantian or Hegelian notion of rational agency is plausible is a philosophical question that lies beyond tort theory and that does not affect the place of personality within a corrective justice approach to liability. Moreover, if correlativity and personality are indeed complementary, acceptance of the former should lead to acceptance of the latter. Such acceptance would provide the theorists who now reject it with a concept that would be serviceable for their own formulations. In any case, the consensus about the highly structured notion of correlativity indicates that the main lines of the corrective justice approach to tort law are now firmly established. Although refinements inevitably remain to be made, radical revisions are unlikely to result from further reworking the standard material of corrective justice tort theory. Scholarly attention should instead turn to the examination of the place of corrective justice within the legal order as a whole and to the expansion of the corrective justice analysis from tort law to other bases of liability. (shrink)
For corrective justice, liability is the consequence of the parties' being correlatively situated as the doer and sufferer of an injustice, and the remedy is seen as undoing that injustice to the extent possible. Combining consideration of legal doctrine and private law theory, this article applies the framework of corrective justice to gain-based damages for torts. Within this framework, restitutionary damages ought to be available only insofar as they correspond to a constituent element in the injustice that the defendant has (...) done to the plaintiff. The radical proposal that allows restitutionary damages for any wrongful gain is unsatisfactory because it fails to link the damages that the plaintiff receives to the normative quality of the defendant's wrong. In contrast, dealings in another's property give rise to such damages because the idea of property includes within the owner's entitlement the potential gainsfrom the property's use or alienation. Restitutionary damages should not be seen as serving a deterrent or punitive function; such a function cannot account for why the plaintiff, of all people, is entitled to the defendant's gain. Properly understood, even situations where the plaintiff's wilfulness or calculation increases the damage award fit within the framework of corrective justice. The corrective justice approach thus repudiates the notion that restitutionary damages are occasions for the promotion of social purposes extrinsic to the juridical relationship between the parties. (shrink)
This article examines, from the standpoint of corrective justice, three basic situations of causal uncertainty in the law of negligence. In the first situation the uncertainty is about which of the possible defendants wrongfully caused the injury. In the second situation the uncertainty is whether the injury resulted from the innocent or the wrongful aspect of the defendant’s activity. In the third situation the uncertainty is whether the defendant’s negligence failed to prevent the materialisation of an independently existing risk. In (...) viewing the parties as the doer and the sufferer of the same injustice, corrective justice confirms the centrality of causation to negligence liability. The article shows, nonetheless, how these three situations of uncertainty can be resolved within the corrective justice framework. Moreover, what emerges from the corrective justice analysis is that causal uncertainty is not a homogeneous problem; its solution varies with the kind of situation in which the uncertainty appears. (shrink)
If Kant’s theory of justice is known for one thing, it is for offering a vision of a perfectly just society that is utterly disconnected from the imperfect societies that we occupy. The purity of Kant’s account has attracted criticism from those who claim that if a theory of justice is to be practical, it must offer more than a vision of a perfectly just society. It must also explain how existing societies mired in injustice are to be brought into (...) ever-closer conformity with the ideal that justice prescribes. In this essay, I will argue that this is exactly what Kant’s mature legal and political theory offers. To discern this feature of Kant’s theory, a neglected component must be integrated into his broader framework. This component is what Kant refers to in Toward Perpetual Peace as a permissive law of public right. (shrink)
Kant's political philosophy draws a distinction between 'passive' citizens who are merely protected by the law and 'active' citizens who may also contribute to it. Although the distinction between passive and active citizens is often dismissed by scholars as an 'illiberal and undemocratic' relic of eighteenth century prejudice, the distinction is found in every democracy that distinguishes between mere inhabitants -- such as tourists and guestworkers -- and enfranchised citizens. The purpose of this essay is both interpretive and suggestive. First, (...) I will argue that Kant's mature distinction between active and passive citizens follows from an institutional deficiency in the the developing state rather than the natural deficiency of passive citizens, as Kant's critics have alleged. Second, I will draw on systematic features of Kant's political thought in order to claim that the state has a duty to create the institutional conditions of universal active citizenship. (shrink)
In Dimensions of Private Law, Professor Stephen Waddams describes the obstacles that an adequate classification of private law must overcome. The purpose of this essay is to offer a theoretical account of legal classification that explains how these obstacles can be overcome and what the resulting classification of private law might look like. I begin with the catalogue of obstacles that Waddams presents and argue that, because they are rooted in misconceptions about the classificatory project, they pose no threat to (...) an adequate conception of legal classification. In search of such a conception, I consider how three great legal theorists – Aristotle, Kant, and Hegel – answer three fundamental classificatory questions about private law. First, what is the unitythat underlies the seemingly chaotic array of legal instances? Second, what is the principle of differentiationthat applies to this unity? Third, how are legalinstancessubsumed under this differentiated unity? The focus of this essay is the enduring significance of Kant’s conception of legal classification, which provides an alternative to Waddams’ conception and offers a set of coherent answers to the fundamental classificatory questions. In contrast, both Aristotle and Hegel respond to the fundamental classificatory questions by providing a conception of the unity of private law that fails to cohere with their ensuing accounts of its differentiation. (shrink)
Between the Psyche and the Social is the first collection that specifically features the field of psychoanalytic social theory emerging in and between psychoanalysis, feminism, postcolonial studies, and queer theory, and across the disciplines of philosophy, literary, film, and cultural studies. This collection of essays takes the psychoanalytic study of social oppression in some new directions by engaging—indeed, stirring up—unconscious fantasies and ethical tensions at the heart of social subjectivity.
This revised edition of The Idea of Private Law makes one of the major works of modern legal theory accessible to a new generation of lawyers and students. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.
Besser-Jones holds that well-being consists in having the experience of satisfying three innate psychological needs at the core of human nature: "relatedness," "autonomy," and "competence." Of these three, the first is the most central one, and we satisfy it by interacting with our fellows in caring and respectful ways: by "acting well." To act well, we need, Besser-Jones argues, a virtuous character: we need certain moral beliefs, and we need those to interact with our intentions in ways that reliably lead (...) us to act in ways that satisfy our psychological needs. Besser-Jones’s theory has many virtues, but appears overly narrow. The theory ignores the importance of bodily, or physical, well-being. It is also overly restrictive to base an account of virtue wholly upon the agent’s own psychological well-being. If we possess qualities of mind or character that do or would make us into good friends or associates, this appears to be a sufficient reason for counting these qualities as virtues of ours. And giving others due care and respect is surely worthwhile in itself, not only as a means to our own psychological well-being. (shrink)
A detailed chronology is offered for the writing of Frege's central philosophical essays from the early 1890s. Particular attention is given to (the distinction between) Sinn and Bedeutung. Suggestions are made as to the origin of the examples concerning the Morning Star/Evening Star and August Bebel's views on the return of Alsace-Lorraine. Likely sources are offered for Frege's use of the terms Bestimmungsweise, Art des Gegebenseins and Sinn und Bedeutung.
The main focus of this essay is to closely engage with the role of scientist-subjectivity in the making of objectivity in Lorraine Daston and Peter Galison’s book Objectivity, and Daston’s later and earlier works On Scientific Observation and The Moral Economy of Science. I have posited four challenges to the neo-Kantian and Foucauldian constructions of the co-implication of psychology and epistemology presented in these texts. Firstly, following Jacques Lacan’s work, I have argued that the subject of science constituted by (...) the mode of modern science suffers from paranoia. It is not the fear of subjectivity interfering with objectivity but the impossibility of knowing the truth of the real that causes paranoia. Here, I have argued that it is not the ethos of objectivity that drives epistemology as Daston and Galison suggest, but the pathos of paranoia. The second challenge builds upon Kant’s own denial that the perfect correspondence between the human will and the moral law is possible. Kant himself thought that an ethical human act is impossible without the component of “pathology.” This questions Daston and Galison’s argument that there is always ethical imperative at the core of epistemic virtue. The third challenge contests the way Daston and Galison take appearance for being in their application of the Foucauldian concept of technologies of the self in modeling the master scientist-self. The fourth challenge questions the notion of the psychological and unconscious in the making of epistemology in Daston’s later and earlier work. Against this background, I aim to make a claim that understanding and disclosing “entities” in the scientific domain presupposes an understanding of “being” in general. My goal is to open up the discussion for an alternative conception of the scientist-subject and thereby an affective and existential formulation of science. (shrink)
El libro de Lorraine Daston Breve Historia de la Atención Científica, publicado en español por editorial La Cifra en el 2012, consta de seis apartados a través de los cuales Daston formula una interesante pregunta desde las perspectivas de la psicología de la investigación científica y la epistemología de la historia natural: por qué, cuándo y cómo ocurre que los científicos dirigen su atención sobre determinados objetos de estudio y no sobre otros. O visto desde otro punto de vista, (...) cómo emergen los objetos científicos y cómo, en determinado momento, se desvanecen. (shrink)
Professor Ernest Weinrib has argued that restitutionary damages must be understood, not as a deterrent to wrongful conduct, but as a requirement of commutative Justice. Professor Gordley agrees, but claims that a purposive understanding of commutative Justice can shed more light on restitutionary damages than the formal understanding of Professor Weinrib. A purposive understanding enables us to distinguish appropriation of a right from mere inteference, to distinguish true restitutionary damages from damages in lieu of a forced sale or (...) hold-up; and to explain why, normally, it should not matter whether the defendant acted wilfully or innocently. (shrink)
Curious about the nature of light, Robert Boyle spent a series of late nights taking detailed observations of shining veal shanks, stinking fish, pieces of rotten wood which glowed in the dark, and a ‘noctiluca’ distilled from human urine. Once, report Lorraine Daston and Katharine Park, with "only a foot-boy" to assist him, Boyle put a luminous diamond to the nocturnal test, "plunging it into oil and acid, spitting on it, and ‘taking it into bed with me, and holding (...) it a good while upon a warm part of my naked body’". (shrink)
This paper introduces The Challenge of Epistemic Responsibility: Essays in Honour of Lorraine Code. In this symposium of papers, invited by Feminist Philosophy Quarterly, the authors return to Code’s first book, Epistemic Responsibility, to re-read it, respond to it, and rethink Code’s articulation of epistemic responsibility anew, considering it in light of her other work and drawing it into contact with their own. This symposium is the outcome of a conference panel that Anna Mudde co-organized with Susan Dieleman, held (...) October 25, 2015, at the annual meeting of the Canadian Society for Women in Philosophy at Mudde’s institution, Campion College at the University of Regina, in Saskatchewan. (shrink)
This paper is based on a research conducted between 2004 and 2006 and dealing with the memories of women in a steel valley struck by depression since the seventies, in the North-Eastern part of France. The imagery of steel-producing Lorraine coalesced in a rather standardized way around the figure of the steelworker working at the blast furnace. This research and the exhibition which followed from it, highlighted the activities of women, in the working place as well as in the (...) domestic realm and in community or political movements. It thus contributes to a more complex imagining and less androcentric perspective on the ironworks past of the Lorraine region. (shrink)
: I briefly reprise a few themes of my bookMoral Understandingsin order to address some questions about responsibility and justification. I argue for a thoroughly situated and naturalized view of moral justification that warns us not to take moral universalism too easily at face value. I also argue for the significance of reports of experience, among other kinds of empirical evidence, in testing the habitability of moral forms of life.