What is the relationship between harm and disease? Discussions of the relationship between harm and disease typically suffer from two shortcomings. First, they offer relatively little analysis of the concept of harm itself, focusing instead on examples of clear cases of harm such as death and dismemberment. This makes it difficult to evaluate such accounts in borderline cases, where the putative harms are less severe. Second, they assume that harm-based accounts of disease must be understood normatively rather than naturalistically, in (...) the sense that they are inherently value based. This makes such accounts vulnerable to more general objections of normative accounts of disease. Here we draw on an influential account of harm from the philosophy of law to develop a harm-based account of disease that overcomes both of these shortcomings. (shrink)
One of the challenges facing complex democratic societies marked by deep normative disagreements and differences along lines of race, gender, sexuality, culture and religion is how the perspectives of diverse individuals and social groups can be made effectively present in the deliberative process. In response to this challenge, a number of political theorists have argued that empathetic perspective-taking is critical for just democratic deliberation, and that a well-functioning democracy requires the cultivation in citizens of empathetic skills and virtues. In this (...) paper, we begin by distinguishing several kinds of imaginative projection and corresponding kinds of empathy. On the basis of this analysis, we suggest that genuine empathetic perspective-taking, especially across gendered, racial and embodied differences, is more challenging than is often assumed in the literature. This poses a dilemma for theorists who place great store on the role of empathetic imagination to overcome the challenges of democratic deliberation. On the one hand, placing responsibilities for empathetic perspective-taking primarily on the socially privileged raises risks of inaccurate and inappropriate projection. On the other hand, mitigating the risks of projection by calling on the socially marginalised to articulate their experiences and feelings in a way that can engage the imagination of the socially privileged, risks perpetuating epistemic injustice. We suggest that while this dilemma may be difficult to overcome, its effects can nevertheless be mitigated through both the cultivation of individual deliberative virtues and pragmatic institutional responses. (shrink)
Hate speech is commonly defined with reference to the legal category of incitement. Laws targeting incitement typically focus on how the speech is expressed rather than its actual content. This has a number of unintended consequences: first, law tends to capture overt or obvious forms of hate speech and not hate speech that takes the form of ‘reasoned’ argument, but which nevertheless, causes as much, if not more harm. Second, the focus on form rather than content leads to categorization errors. (...) Hate speech taking the form of ‘reasoned argument’ is often legally characterized as either political or academic debate, and so is deemed both permissible and justified in societies where free speech principles exist. In this paper, I argue that it is important to identify instances of hate speech as hate speech, no matter how articulately or reasonably the speech is expressed. The danger in mischaracterizing an instance of hate speech by calling it academic or political debate is that it risks normalizing the views and sentiments that are expressed and accepting those views as an important part of our political and academic discourses. With reference to Habermas’ account of ‘distorted communication’, I propose different criteria for defining and understanding hate speech and suggest that there might be good reasons for interpreting the concept of incitement more broadly, so as to include these different kinds of it. (shrink)
Drawing on recent research in the philosophy of the emotions and empirical evidence from social psychology, this paper argues that the concept of loss of self-control at common law mischaracterises the relationship between the emotions and their effects on action. Emotions do not undermine reason in the ways offenders describe ; nor do they compel people to act in ways they cannot control. As such, the idea of ‘loss of self-control’ is an inaccurate and misleading description of the psychological mechanisms (...) at play in cases of emotionally motivated killing, where there may not be any ‘loss of self-control’ as such. (shrink)
In this paper, I suggest that one of the ways in which problems of exclusion from deliberation and uptake within deliberation can be ameliorated is to develop a more robust account of the deliberative virtues that socially privileged speakers/hearers ought to cultivate. Specifically, privileged speakers/hearers ought to cultivate the virtue of actively facilitating equitable and inclusive deliberative exchanges and the deliberative virtue of training their ‘testimonial sensibility’ to correct for prejudicial judgments about other speakers.
Larry May's and Kenneth Shockley's discussions of punishment for mob‐based harms fall back on the idea of individual mens rea. They recognise that the mens rea element is complicated by the fact that an individual's intentional actions in the context of mob activity have a collective dimension to them, either because they are ‘group‐based’, or because they are enabled or constrained by the collective's ‘normative authority’. However, their accounts of punishment fail to adequately reflect this complication. We claim that this (...) is because they primarily countenance ‘paradigmatic’ forms of punishment. Part 2 of the article argues that a non‐paradigmatic form of punishment – one that is ‘expressive’ insofar as it publicly communicates a denunciation – can better target the complex relations between the individual and collective dimensions of mob‐based harms. In order to better illuminate the target of such punishment, Part 1 of the article clarifies the relation between individual, shared and collective responsibility for mob‐based harms. Responding to several shortcomings in May's and Shockley's work, we examine the emergence of ‘mob mentality’ and argue that mob beliefs, intentions and norms are dynamically ‘expressed’ (i.e. publicly manifested, communicated and shaped) in and through the situated behaviour of individual mob members. (shrink)
In this paper, I argue that Habermas' proceduralist model of law can be put to feminist ends in at least two significant ways. First, in presenting an alternative to the liberal and welfare models of laws, the proceduralist model offers feminism a way out of the equality/difference dilemma. Both these attempts to secure women's equality by emphasising women's sameness to men or their difference from men have placed the onus on women to either find a way of integrating themselves into (...) existing institutions or to confront the so-called question of women's difference. The proceduralist model renders this dilemma irrelevant. Instead, it proceeds from the fact of sexual difference; a fact that produces competing and conflicting needs and interests that require interpretation by both men and women. This, I argue, marks a change in the very way we conceptualise the so-called problem of women's difference, insofar as the question is no longer framed in these terms. Second, I argue that this deliberative process over the interpretation of conflicting interests affects a fundamental shift in the nature of legal institutions themselves, insofar as law is no longer a vehicle for promoting male interests. (shrink)
In this paper, I suggest that Heidegger’s conception of freedom, elaborated in piecemeal fashion in Being and Time, The Basic Problems of Phenomenology, and Metaphysical Foundations of Logic and culminating in The Essence of Human Freedom, providesa way of rethinking our conception of freedom, not as a set of specific determinations and rights, but as the very condition for the possibility of both existence and community. In this elaboration, it is possible to trace Heidegger’s gradual removal of freedom from the (...) ontology of self-presence. This, I argue, offers us a way of thinking freedom, not in terms of a quality or attribute that Dasein possess, but in terms of community, fraternity, and hence ethics. (shrink)
In this paper, I redress an analytic deficit in debates about sedition by providing an explanatorily account of the relation between speech and action using speech act theory as developed by J. L. Austin. The specific focus will be on speech acts advocating violence against the state, in the form of religious sermons preaching violent jihad or glorifying acts of terrorism. This philosophical account will have legal consequences for how we classify speech acts deemed to be dangerous, or to cause (...) harm. It also suggests that because speech can constitute action or conduct in certain circumstances, sedition laws, in principle, might be defensible, but not in their current form. (shrink)
This article examines the role of expertise in public debate, specifically the ways in which expertise can be mimicked and deployed as “pseudo-expert discourse” to generate legitimacy for views that have otherwise been discredited. The article argues that pseudo-expert discourse having a clear public health or safety impact should be regulated. There have been some attempts to legally regulate this speech through various means; however, these attempts at regulation have been met with fierce resistance, because of free-speech concerns. The article (...) suggests that these appeals to free speech in the context of pseudo-expert discourse are both misguided and misplaced. Moreover, because speakers with the relevant expertise or perceived expertise are able to secure uptake of their views, they have a moral responsibility to not deceive or mislead audiences, and may also have various legal responsibilities. (shrink)
In this paper, we give an account of some of the necessary conditions for an effectively functioning public sphere, and then explore the question of whether these conditions allow for the expression of ideas and values that are fundamentally incompatible with those of liberalism. We argue that speakers who advocate or glorify violence against democratic institutions fall outside the parameters of what constitutes legitimate public debate and may in fact undermine the conditions necessary for the flourishing of free speech and (...) public dialogue more generally. (shrink)
The problem of political violence, its justifiability, and the question of how we ought to respond to it has been the subject of extensive debate since September 11, 2001, and subsequent terrorist attacks in Madrid (2004), London (2005), Bali (2005) and Mumbai (2008). The phenomenon of political violence is by no means new; nor have the measures taken by Western governments in response to recent terrorist attacks been unprecedented.
In Between Facts and Norms, Habermas articulates a system of rights, including human rights, within the democratic constitutional state. For Habermas, while human rights, like other subjective rights have moral content, they do not structurally belong to a moral system; nor should they be grounded in one. Instead, human rights belong to a positive and coercive legal order upon which individuals can make actionable legal claims. Habermas extends this argument to include international human rights, which are realised within the context (...) of a cosmopolitan legal order. The aim of this paper is to assess the relevance of law as a mechanism for securing human rights protection. I argue that positive law does make a material difference to securing individual human rights and to cultivating and augmenting a general rights culture both nationally and globally. I suggest that Habermas' model of law presents the most viable way of negotiating the tensions that human rights discourse gives rise to: the tensions between morality and law, between legality and politics, and between the national and international contexts of human rights protection. (shrink)