Initial reflections on ethics, morality, and justice in an adversary system -- Undertaking a case -- Communication and confidentiality -- Loyalties and conflicts of interest -- Who controls the case? How should lawyers and clients share decisionmaking? -- What price truth? What price justice? What price advocacy? -- Tactics, free speech, and playing by the rules -- The special problems of the government lawyer -- The lawyer acting as advisor -- The lawyer as part of the law firm structure -- (...) Mental health, substance abuse, and the realities of modern practice -- The economics of lawyering -- Admissions, discipline, and some other rules of lawyering. (shrink)
John Donne's song was hardly written in the tradition of political philosophy, but it has a good deal to say about the theme of luck, both good and bad, which I want to address. There is no doubt but that bad luck has bad consequences for the persons who suffer from it. If there were a costless way in which the consequences of bad luck could be spread across everyone in society at large, without increasing the risk of its occurrence, (...) then most of us would pronounce ourselves better off for the change. In this sense it can be said, for example, that there is a utilitarian grounding for a moral obligation to care and provide for those persons who suffer the fortunes of bad luck. For the sake of argument I do not wish to contest this particular starting point, although there are many who would. Instead, I want to ask the question of whether this moral obligation should be converted into a legal obligation, backed by public force. The dominant answer to that question today is yes. Even those who think that markets should determine decisions on production find that the state has a proper role to reduce the adverse consequences of bad luck. My cast of mind is more skeptical. In life, or, in this instance, politics, “come bad chance, and we do join to it our strength.” In general the effort to use coercion to counter the adverse effects of luck tends only to make matters worse. (shrink)
Richard Wolin, in his article 'Nazism and the Complicities of Hans-Georg Gadamer: Untruth and Method' ( New Republic , 15 May 2000, pp. 36-45), wrongly accuses Gadamer of being 'in complicity' with the Nazis. The present article in reply was rejected by the New Republic , but is printed here to show that Wolin in his article is misinformed and unfair. First, Wolin makes elementary factual errors, such as stating that Gadamer was born in Breslau instead of Marburg. He (...) relies on a highly questionable source, Teresa Orozco, as 'definitive'. He argues often by misconstruing the evidence and guilt by association. For instance, he associates Gadamer with Werner Jaeger, with whom he disagreed and had little contact. Finally,he misinterprets basic terms in Gadamer's hermeneutics, Vorurteil and authority, attributing to them the popular sense of these terms instead of their place in Gadamer's hermeneutics. Vorurteil , popularly translated as 'prejudice', but better rendered as 'prejudgment', refers to the prior knowledge that one needs in order to understand a situation or a text. In some cases, this is part of the inherited tradition. Authority refers to the respect one pays to those one recognizes as having more knowledge than oneself: one's doctor, or parent, or teacher, a judge, or certain texts. It is not an abject surrender to all authority but the necessary respect for authority in human relationships and in society in general. By misconstruing these terms, Wolin attempts to discredit Gadamer's general philosophy,not just to demonstrate a connection to the Nazis. At the end, his argument turns into a misinformed general political attack on Gadamer as an enemy of Enlightenment values. (shrink)
This book explains how just war theory variously presupposes ethical theories and, particularly, natural law; shows how issues in just war theory might be resolved differently depending on which ethical theory is being appealed to in their proposed resolution; and resolves conflicts among these resolutions.
I. What Vintage of Civil Rights? In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are (...) nonetheless denied their civil rights if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections did not guarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well. (shrink)
'Tis true governments cannot be supported without great charge, and it is fit everyone who enjoys a share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority giving it either by themselves or their representatives chosen by them. For if any one shall claim a power to lay and levy taxes on the people, by his own authority, and (...) without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself. (shrink)
In The Varieties of Reference, Gareth Evans argues that the content of perceptual experience is nonconceptual, in a sense I shall explain momentarily. More recently, in his book Mind and World, John McDowell has argued that the reasons Evans gives for this claim are not compelling and, moreover, that Evans’s view is a version of “the Myth of the Given”: More precisely, Evans’s view is alleged to suffer from the same sorts of problems that plague sense-datum theories of perception. In (...) particular, McDowell argues that perceptual experience must be within “the space of reasons,” that perception must be able to give us reasons for, that is, to justify, our beliefs about the world: And, according to him, no state that does not have conceptual content can be a reason for a belief. Now, there are many ways in which Evans’s basic idea, that perceptual content is nonconceptual, might be developed; some of these, I shall argue, would be vulnerable to the objections McDowell brings against him. But I shall also argue that there is a way of developing it that is not vulnerable to these objections. (shrink)
A broad range of intellectual perspectives may be brought to bear on any important social institution. To this general rule, the institution of private property is no exception. The desirability of private property has been endlessly debated across the disciplines: philosophical, historical, economic, and legal. Yet there is very little consensus over its proper social role and limitations. Is it possible to find a unique solution to questions of property and private ownership, good for all resources and for all times? (...) The famous defense of private property that is found in chapter 5 of John Locke's Second Treatise of Government answers this question in the affirmative, for Locke writes as though all property was given to mankind in common, and then seeks to find the quickest and most expeditious way to convert all common property into private property. His implicit, but undefended, assumption is that common forms of property are both undesirable and unstable, while private forms of ownership are always just the opposite. Yet his preferred method for moving from a commons to a regime of private property—the unilateral decision to appropriate by each actor—is one that has been frequently condemned as a sop to unbridled egotism, even though it is subject to two constraints: the first against waste, and the second requiring the appropria-tor to leave “enough, and as good” for others. (shrink)
Since Socrates, and through Descartes to the present day, the problems of self-knowledge have been central to philosophy's understanding of itself. Today the idea of ''first-person authority''--the claim of a distinctive relation each person has toward his or her own mental life--has been challenged from a number of directions, to the point where many doubt the person bears any distinctive relation to his or her own mental life, let alone a privileged one. In Authority and Estrangement, Richard Moran argues (...) for a reconception of the first-person and its claims. Indeed, he writes, a more thorough repudiation of the idea of privileged inner observation leads to a deeper appreciation of the systematic differences between self-knowledge and the knowledge of others, differences that are both irreducible and constitutive of the very concept and life of the person.Masterfully blending philosophy of mind and moral psychology, Moran develops a view of self-knowledge that concentrates on the self as agent rather than spectator. He argues that while each person does speak for his own thought and feeling with a distinctive authority, that very authority is tied just as much to the disprivileging of the first-person, to its specific possibilities of alienation. Drawing on certain themes from Wittgenstein, Sartre, and others, the book explores the extent to which what we say about ourselves is a matter of discovery or of creation, the difficulties and limitations in being ''objective'' toward ourselves, and the conflicting demands of realism about oneself and responsibility for oneself. What emerges is a strikingly original and psychologically nuanced exploration of the contrasting ideals of relations to oneself and relations to others. (shrink)
The training and experience of such academic philosophers as Richard Rorty and Hilary Putnam do not equip them with the economic and other social‐scientific tools necessary to make useful contributions to political discussion. In the case of Rorty, this has resulted in his being unable to make effective ripostes to left‐wing critics of his defense of “bourgeois liberalism,” his uncritical endorsement of simplistic arguments for social reform, and his embrace of false prophecies of doom, such as those found in (...) Orwell's novel Nineteen Eighty‐Four. Moreover, his disdain for “theory” has blinded him to the utility of mid‐level theories, such as those of economics, in dealing with concrete social problems. (shrink)
Imitation is said to be the sincerest form of flattery. Socially, the proposition may well be true. But in the world of ideas it is false: to the extent that two incompatible traditions use the same words or symbols to articulate different visions of legal or social organization, imitation begets confusion, not enlightenment. The effects of that confusion, moreover, are not confined to the world of ideas, but spill over into the world of politics and public affairs. Words are more (...) than tools of description: they work also as tools of persuasion and transformation. Let a term have a favorable connotation in one context, and its imitative use can mislead people into thinking that a major departure from established practice is merely the extension or updating of an old principle to deal with new circumstances. (shrink)
The title alone of McCall’s book reveals its ambitious enterprise. The book’s structure is a long inference to the best explanation: chapters present problems that are solved by a single, ontological model. Problems as diverse as time flow, quantum measurement, counterfactual semantics, and free will are discussed. McCall’s style of writing is lucid and pointed—in general, very pleasant to read.
Coady’s book is probably the single most comprehensive treatment of philosophical questions relating to testimony and as such must be read by anyone interested in the topic. His epistemological conclusions concerning testimony challenge much of the philosophical tradition.
After a very brief introduction, Davidson begins with an informed and detailed account of the views of Aristotle and his major commentators, whose writings had enormous influence on the development of the medieval traditions. Davidson's account is supplemented with a critical exposition of the relevant teachings from the Plotiniana Arabica, from al-Kindi, and from a treatise on the soul attributed to Porphyry in the Arabic tradition. Impressive as all this is, it is simply stage setting for Davidson's detailed accounts of (...) the doctrines and arguments of al-Farabi, Avicenna, and Averroes. (shrink)
The paper argues for the centrality of believing the speaker (as distinct from believing the statement) in the epistemology of testimony, and develops a line of thought from Angus Ross which claims that in telling someone something, the kind of reason for belief that a speaker presents is of an essentially different kind from ordinary evidence. Investigating the nature of the audience's dependence on the speaker's free assurance leads to a discussion of Grice's formulation of non-natural meaning in an epistemological (...) light, concentrating on just how the recognition of the speaker's self-reflexive intention is supposed to count for his audience as a reason to believe P. This is understood as the speaker's explicitly assuming responsibility for the truth of his statement, and thereby constituting his utterance as a reason to believe. (shrink)
There is long-standing disagreement among systematists about how to divide biodiversity into species. Over twenty different species concepts are used to group organisms, according to criteria as diverse as morphological or molecular similarity, interbreeding and genealogical relationships. This, combined with the implications of evolutionary biology, raises the worry that either there is no single kind of species, or that species are not real. This book surveys the history of thinking about species from Aristotle to modern systematics in order to understand (...) the origin of the problem, and advocates a solution based on the idea of the division of conceptual labor, whereby species concepts function in different ways - theoretically and operationally. It also considers related topics such as individuality and the metaphysics of evolution, and how scientific terms get their meaning. This important addition to the current debate will be essential for philosophers and historians of science, and for biologists. (shrink)
This is one of the most important books on quantum mechanics to have appeared in recent years. It offers a dramatically new interpretation that resolves puzzles and paradoxes associated with the measurement problem and the behavior of coupled systems. A crucial feature of this interpretation is that a quantum mechanical measurement can be certain to have a particular outcome even when the observed system fails to have the property corresponding to that outcome just prior to the measurement interaction.
It is a common conceit of academic writing to insist that progress in some given area of law or political theory is hampered by hopeless confusion over the meaning of certain standard terms. My usual attitude toward such claims is one of passionate rejection. Because the English language has served us well for such a long period of time, I bring a strong presumption of distrust to any claim of the conceptual poverty of ordinary language. The persistent fears of lack (...) of understanding are in general refuted by the success of communication in ordinary life, as measured by the coordination of human behavior that language facilitates. (shrink)
Political theory has a good deal to say both for and against the establishment of the modern welfare state. As one might expect, most of that discussion is directed toward the expanded set of basic rights that the state confers on its members. In its most canonical form, the welfare state represents a switch in vision from the regime of negative rights in the nineteenth century to the regime of positive rights so much in vogue today. Negative rights—an inexact and (...) somewhat misleading term— stress the right of an individual to be free from certain kinds of external interventions. These rights arrange themselves on two basic lists. The first list generates a set of civil capacities that all individuals enjoy over their own labor and property: the right to contract, to make wills, to sue and be sued, to give evidence, and the like. The second list, from which the term “negative rights” derives, protects all persons from interference, either by force or by fraud, in the conduct of their own affairs. The resulting set of rights is short, snappy, and knowable; it is internally consistent; and it prepares the stage for productive human behavior while limiting destructive forms of behavior. Even though it is not couched in explicit utilitarian language, it can surely be defended on general functional grounds. (shrink)
The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to (...) measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements. (shrink)
This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human rights” label (...) to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities, but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws. (shrink)
In this paper, I want to explore the relationship between the various forms of individual self-interest and the appropriate structures of government. I shall begin with the former, and by degrees extend the analysis to the latter. I do so in order to mount a defense of principles of limited government, private property, and individual liberty. The ordinary analysis of self-interest treats it as though it were not only a given but also a constant of human nature, and thus makes (...) few allowances for differences between persons. Yet common experience tells us that personality and behavior are as unique as fingerprints. The positive inquiry, therefore, is how we find what is constant about self-interest in a world of natural human diversity. The normative inquiry must take into account both the constant and variable features of human nature in order to determine what forms of social arrangements hold the greatest prospect of long-term social advantage. The gulf between ‘is’ and ‘ought’ must be overcome here, as it must be in all normative discourse. Yet we cannot make sensible judgments of what ought to be the case in the domain of rules unless we first have some idea of what is the case in the domain of behavior. The initial inquiry asks why self-interest is regarded as a constant of human behavior. The explanation derives more from the biological and less from the social. The powerful pressures of natural selection weed out any organisms for whom selfinterest is not the paramount consideration. (shrink)
Some people hate themselves. But if I say, “I hate myself,” who is this “I” that stands apart from “myself”? And notice how in the expression “I am not myself today,” the “I” and “myself” change places. Now it is “myself” who is the authentic, the authoritative, the judgmental “I,” and it is “I” who is the self that is judged and found wanting. Some people talk to themselves; when they do, who is speaking and who is listening?
Because little is known about the human trait of affiliation, we provide a novel neurobehavioral model of affiliative bonding. Discussion is organized around processes of reward and memory formation that occur during approach and consummatory phases of affiliation. Appetitive and consummatory reward processes are mediated independently by the activity of the ventral tegmental area (VTA) dopamine (DA)–nucleus accumbens shell (NAS) pathway and the central corticolimbic projections of the u-opiate system of the medial basal arcuate nucleus, respectively, although these two projection (...) systems functionally interact across time. We next explicate the manner in which DA and glutamate interact in both the VTA and NAS to form incentive-encoded contextual memory ensembles that are predictive of reward derived from affiliative objects. Affiliative stimuli, in particular, are incorporated within contextual ensembles predictive of affiliative reward via: (a) the binding of affiliative stimuli in the rostral circuit of the medial extended amygdala and subsequent transmission to the NAS shell; (b) affiliative stimulus-induced opiate potentiation of DA processes in the VTA and NAS; and (c) permissive or facilitatory effects of gonadal steroids, oxytocin (in interaction with DA), and vasopressin on (i) sensory, perceptual, and attentional processing of affiliative stimuli and (ii) formation of social memories. Among these various processes, we propose that the capacity to experience affiliative reward via opiate functioning has a disproportionate weight in determining individual differences in affiliation. We delineate sources of these individual differences, and provide the first human data that support an association between opiate functioning and variation in trait affiliation. Key Words: affiliation corticolimbic-striatal networks; appetitive and consummatory reward; dopamine; oxytocin; personality; social bonds; social memory; u-opiates. (shrink)
The contemporary cultural context may be seen as presenting a moral void in vocational education, sanctioning the ascendency of instrumental epistemology and a proliferation of codes of conduct, to which workplace actions are expected to conform. Important among the purposes of such codes is that of encouraging ethical conduct, but, true to their informing instrumental epistemology, they tend to assume that ethical conduct is a formal matter: a priori, extrinsic, deductive, universal, determinate, unproblematic, incontestable, constraining and selfless. However, the context (...) may, conversely, be seen as presenting grounds for a very different view of moral conduct as situated: immanent, intrinsic, cultural, contextualised, underdetermined, problematic, contestable, challenging and authentic. There is suggested, then, a need for vocational educators and trainers to develop the knowledge, capability, commitment and confidence to work as situated moral agents in workplaces of codified expectations to which they may be held accountable. (shrink)
Extraversion has two central characteristics: (1) interpersonalengagement, which consists of affiliation (enjoying and valuing close interpersonal bonds, being warm and affectionate) and agency (being socially dominant, enjoying leadership roles, being assertive, being exhibitionistic, and having a sense of potency in accomplishing goals) and (2) impulsivity, which emerges from the interaction of extraversion and a second, independent trait (constraint). Agency is a more general motivational disposition that includes dominance, ambition, mastery, efficacy, and achievement. Positive affect (a combination of positive feelings and (...) motivation) is closely associated with extraversion. Extraversion is accordingly based on positiveincentivemotivation. (shrink)