This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and implementation. (...) Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

Responding to Richard Lennan’s paper, this short essay highlights three elements of Rahner’s work on ecclesiology: sacramentality, heresy, and mission. In Lennan’s account, the first two of these call for self-reflection and self-criticism. Viewing church as sacramental, rather than as a continuation of the incarnation, is important for Rahner because it makes room for ongoing self-criticism. Rahner even turns the category of heresy into an opportunity for self-reflection rather than the condemnation of others, asking how the church offers (...) a compelling “yes” as well as a guiding “no.” The third element of Rahner’s ecclesiology that Lennan engages is mission. Rahner’s work does not fit neatly into traditional notions of evangelism or contemporary typologies of mission. In Lennan’s rendering, however, Rahner’s ecclesiology provides a powerful view of mission as persistent, embodied hope. This view of mission—appropriate to a self-critical and self-reflective church—might be precisely what is needed today. (shrink)

Using tombstoning (jumping from a height into water) as an example, this article claims that public health policies and health promotion tend to assess the moral status of activities following a version of health maximizing rule utilitarianism, but this does not represent common moral experience, not least because it fails to take into account the enjoyment that various health effecting habits brings and the contribution that this makes to a good life, variously defined. It is proposed that the moral status (...) of health threatening activities should instead be defined by a version of act utilitarianism where both maximizing value and method of calculation are decided by individuals. In this account personal responsibility for health is reduced to the obligation to undertake calculations effectively, comprising of two duties; epistemic and reflective. If there is an individual epistemic duty, it is plausible to suggest that health promotion should present information in a way which facilitates it, but despite the prevalent language of autonomous choice, discussion of health promotion messages, for example, related to drinking and smoking demonstrates that this currently does not happen. Health promotion strategies should seek to encourage reflection about the harm our health effecting behaviour causes others. (shrink)

Nursing codes of ethics and conduct are features of professional practice across the world, and in the UK, the regulator has recently consulted on and published a new code. Initially part of a professionalising agenda, nursing codes have recently come to represent a managerialist and disciplinary agenda and nursing can no longer be regarded as a self‐regulating profession. This paper argues that codes of ethics and codes of conduct are significantly different in form and function similar to the difference between (...) ethics and law in everyday life. Some codes successfully integrate these two functions within the same document, while others, principally the UK Code, conflate them resulting in an ambiguous document unable to fulfil its functions effectively. The paper analyses the differences between ethical‐codes and conduct‐codes by discussing titles, authorship, level, scope for disagreement, consequences of transgression, language and finally and possibly most importantly agent‐centeredness. It is argued that conduct‐codes cannot require nurses to be compassionate because compassion involves an emotional response. The concept of kindness provides a plausible alternative for conduct‐codes as it is possible to understand it solely in terms of acts. But if kindness is required in conduct‐codes, investigation and possible censure follows from its absence. Using examples it is argued that there are at last five possible accounts of the absence of kindness. As well as being potentially problematic for disciplinary panels, difficulty in understanding the features of blameworthy absence of kindness may challenge UK nurses who, following a recently introduced revalidation procedure, are required to reflect on their practice in relation to The Code. It is concluded that closer attention to metaethical concerns by code writers will better support the functions of their issuing organisations. (shrink)

This is lightly edited and referenced version of a presentation given at the 20th International Philosophy of Nursing conference in Quebec on 23rd August 2016. Philosophical texts are not given the same prominence in nurse education as their more valued younger sibling, primary research evidence, but they can influence practice through guidelines, codes and espoused values. John Stuart Mill’s harm principle, found in On Liberty, is not a universal law, and only a thoroughgoing libertarian would defend it as such, though (...) it, or its remnants, can be seen can be seen in policy documents. But its influence is weakening. Smoking bans in enclosed spaces were initially justified with other‐regarding considerations, but judgements from unsuccessful legal challenges from patients in UK psychiatric hospitals rely on preventing harm to the smoker, even when smoking outside, which does not harm others. In the wake of legislation, no‐smoking policies enacted by hospitals are becoming more aggressive, banning smoking both inside and outside, and extending the use of power gained through employment to prevent nurses assisting patients enjoy a lawful habit. Mill’s dictum has been subverted, and this speaks to the fundamental purpose of nursing. Should nurses collude and willingly exert their power for their version of the good of the patient? Or should they instead reaffirm values that support and facilitate life choices made by autonomous people? The paper supports the latter option, and this has wider application for nursing which can be illuminated, if not settled, by revisiting Mill and his famous dictum. (shrink)

The merit of Plato’s Laws remains largely untapped by those seeking genuinely collaborative models of the doctor–patient tie as alternatives to paternalism and autonomy. A persistent difficulty confronting proposed alternatives has been surpassing the notion of pronounced intellectual and values asymmetry favoring the doctor. Having discussed two prominent proposals, both of which evince marked paternalism, I argue that reflection on Plato yields four criteria that a genuinely collaborative model must meet and suggest how the Laws addresses them. In the (...) process, the Laws’ doctor–patient tie is shown to be far more nuanced than interpreters have previously observed. Although Plato’s account will not solve our own quandaries, it illustrates how one might retain asymmetry of a kind without capitulating to familiar oppositional modalities. Through this account, I hope to show that the Laws merits fuller inclusion in contemporary discussions than it has heretofore received. (shrink)

Is the virtue of the good citizen the same as the virtue of the good man? Aristotle addresses this in Politics 3.4. His answer is twofold. On the one hand, (the account for Difference) they are not the same both because what the citizen’s virtue is depends on the constitution, on what preserves it, and on the role the citizen plays in it, and because the good citizens in the best constitution cannot all be good men, whereas the good man’s (...) virtue is uniform. On the other hand, (the account for Identity) the two virtues are identical in the good men in the best constitution, in which all are good citizens, each possessing the ability for ruling and for being ruled. This nuanced answer can be seen as Aristotle’s synthesis of a Periclean view (contribution to state blots out personal wrongs) and a Socratic view (no good citizen is without justice). Its nuances reflect the extent to which Aristotle’s conceptions of good citizenship and the best constitution accommodate deviations of what is probable from the human ideal set out in his ethical writings. In the present chapter, I will first address three puzzles regarding the nuances of Aristotle’s answer. Second, I will consider one question about its implication: Does Aristotle’s account for Difference turn out to entail something ultra-Periclean: that no one can simultaneously be a good man and a good citizen in any constitution other than the best? I shall argue the negative. (shrink)

This paper discusses Ronald Allen’s article, Naturalized Epistemology and the Law of Evidence Revisited, and reflects on how epistemology can contribute to our understanding of the evidentiary proof process. I first situate Allen’s critique of recent philosophical scholarship, distinguishing between general theoretical accounts of proof (including the theory that Allen and I have defended), on one hand, and the applications of specific epistemological concepts or issues to law, on the other. I then present a methodological picture that diverges in some (...) respects from the one that emerges from Allen’s critique. In discussing this alternative methodological picture, I explain how epistemology can contribute to legal evidence and proof while avoiding the problems that Allen identifies. (shrink)

On one view of ethical development, someone not yet virtuous can reliably progress by engaging in what meaningfully resembles virtuous conduct. However, if the well-intended conduct is psychologically demanding, one's character, precisely because one is not yet virtuous, may worsen rather than improve. This risk of degradation casts doubt on the developmental view. I counter the doubt through one interpretation and one application of the Mengzi. In passage 2A2, invoking the image of a farmer who “helped” the crop grow by (...) pulling the sprouts, MENG Ke cautions, “do not help it grow.” I defend a novel interpretation: do not advance with a naïve negligence about your psycho-physiological constitution. I also show how to advance with realistic care by pointing out an overlooked application of a much-discussed cultivation technique illustrated in Mengzi 1A7: ethical reflection can conciliate one with one’s ongoing or past advanced action, lowering the action’s risk of degradation. (shrink)

This paper examines recent attempts to defend Rule-Consequentialism against a traditional objection. That objection takes the form of a dilemma, that either Rule-Consequentialism collapses into Act-Consequentialism or it is incoherent. Attempts to avoid this dilemma based on the idea that using RC has better results than using AC are rejected on the grounds that they conflate the ideas of a criterion of rightness and a decision procedure. Other strategies, Brad Hooker's prominent amongst them, involving the thought that RC need contain (...) no overarching concern to maximize the good are acknowledged to avoid the original dilemma, but lead to further problems of motivating and justifying RC in the absence of such a concern. The paper argues that Hooker's attempt to deal with these problems by using a 'Reflective Equilibrium plus method is unsuccessful. (shrink)

Hudson has formulated two local deterministic theses and argued that both are incompatible with freedom. We argue that Hudson has half the story right. Moreover, reflection on Hudson’s theses brings out an important point for debates about freedom generally: that instead of focusing on the notion of entailment, debates about freedom should focus on the notions of explanation and sourcehood. Hudson’s theses provide an excellent case study for why the latter notions ought to take precedence over the former in (...) debates about freedom. (shrink)

This authoritative and wide-ranging book, first published in 2003, examines the history of western linguistics over a 2000-year timespan, from its origins in ancient Greece up to the crucial moment of change in the Renaissance that laid the foundations of modern linguistics. Some of today's burning questions about language date back a long way: in 1400 BC Plato was asking how words relate to reality. Other questions go back just a few generations, such as our interest in the mechanisms of (...) language change, or in the social factors that shape the way we speak. Vivien Law explores how ideas about language over the centuries have changed to reflect changing modes of thinking. A survey chapter brings the coverage of the book up to the present day. Classified bibliographies and chapters on research resources and the qualities the historian of linguistics needs to develop, provide the reader with the tools to go further. (shrink)

This is a critical edition of the work published in 1681, two years after Hobbes' death. The dialogue contains mature reflections of Hobbes on the doctrine of sovereignty. It deals with the relation between law and reason, sovereign power, crimes, heresies and punishments. The editor's introduction sets forth arguments for regarding the text as a complete work, contrary to the views of L. Stephen, Tönnies, and Robertson. A critical analysis of the argument in the dialogue is also provided indicating the (...) relation of the dialogue to Hobbes' political philosophy. The dialogue is interesting in portraying the more "liberal" side of Hobbes. It is an invaluable aid to the study of Hobbes.--A. S. C. (shrink)

This chapter provides a survey of Kierkegaard's views of systematic theology, doctrine, and dogmatics. It demonstrates that while Kierkegaard's view of theology is generally negative, for he regards it as a human enterprise created in order to avoid doing God's Word, his attitude to doctrine and dogmatics is nuanced and complex. Kierkegaard rejects doctrine insofar as it objectifies Christianity, but nevertheless generally accepts the classic doctrines of the Christian faith and sees no reason to reform them. This ambivalence toward doctrine (...) stems from his conviction that the task facing the believer is not to reflect on doctrine, but to appropriate and apply it existentially to his/her own individual existence. Similarly, although Kierkegaard rejects the efforts of contemporary dogmaticians, dogmatics itself is valid insofar as it reproduces the paradoxical character of Christianity and the decision between faith and offense with which Christian dogmas confront every human being. (shrink)

Authority qua empowerment is the weak reading of authority in Hans Kelsen's writings. On the one hand, this reading appears to be unresponsive to the problem of authority as we know it from the tradition. On the other hand, it squares with legal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends a normativity thesis along with the separation thesis, and it is at any rate arguable that the normativity thesis mandates a stronger reading of authority than that (...) modelled on empowerment. I offer, in the paper, a prima facie case on behalf of a stronger reading of authority in Kelsen. I go on to argue, however, that the textual evidence weighs heavily in favour of the weak reading. Both nomostatics and nomodynamics are pervasive points of view in the Pure Theory of Law, and both reflect species of empowerment as the endpoint of Kelsen's reconstructions. (shrink)

This volume celebrates the career of John Martin Fischer, whose work on a wide range of topics over the past forty years has been transformative and inspirational. Fischer's semicompatibilist view of free will and moral responsibility is perhaps the most widely discussed view of its kind, and his emphasis on the significance of reasons-responsiveness as the capacity that underlies moral accountability has been widely influential. Aside from free will and moral responsibility, Fischer is also well-known for his work on freedom (...) and foreknowledge, the problem of evil, the badness of death, the meaning of life, and the allure of immortality. This volume gathers new essays by leading scholars on some of the major themes of Fischer's work, and it also includes a new piece by Fischer in which he offers a systematic reflection on and defense of the motivations that have shaped his theorizing about moral responsibility. Freedom, Responsibility, and Value will be of interest to scholars and students working on a variety of issues in metaphysics, ethics, and philosophy of religion. (shrink)

The legislative sense of law of Kant's first two Critiques shows what conditions must be met to assure that every constituent within an ideal context will be treated equally. The evaluative and judicial sense of law that relates to reflective judgment in the third Critique and can be carried forward to the philosophy of right has the more difficult task of reconciling conflicting interests that manifest themselves in more limited regional contexts.

“Bodily autonomy” has received significant attention in bioethics, medical ethics, and medical law in terms of the general inviolability of a patient’s bodily sovereignty and the rights of patients to make choices (e.g., reproductive choices) that concern their own body. However, the role of the body in terms of how it can or does contribute to a patient’s capacity for, or exercises of their autonomy in clinical decision-making situations has not been explicitly addressed. The approach to autonomy in this paper (...) is aligned with traditional theories that conceive autonomy in terms of an individual’s capacities for, and exercises of rational reflection. However, at the same time, this paper extends these accounts by arguing that autonomy is, in part, embodied. Specifically, by drawing on phenomenological conceptions of the experience of autonomy, we argue that, in principle, the body is a necessary component of the capacity for autonomy. Secondly, through the presentation of two different cases, we highlight ways in which a patient’s body can contribute to the autonomy of treatment choices. Ultimately, we hope to encourage others to explore additional conditions under which a concept of embodied autonomy should be employed in medical decision making, how its underlying principles might be operationalised in clinical situations, and its consequences for approaches to patient autonomy in healthcare practice, policy, and law. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:How Old Are Modern Rights? On the Lockean Roots of Contemporary Human Rights DiscourseS. Adam SeagraveArguing for the proper placement of John Locke’s natural rights theory within intellectual history is a particularly high-stakes enterprise for historians of political thought and political theorists alike. This is due in large part to the fact that, as Brian Tierney notes in his recent study, it is “widely agreed that Locke’s work was (...) an important influence in the formation of modern liberal ideas, including ideas concerning rights.”1 Our understanding of Locke thus contributes to our reflective self-understanding as “modern liberals” (of one stripe or another) to an extent perhaps unequaled by any other thinker so far removed from our own time.As a result of the rare promise of studying Locke’s natural rights theory, there has been no shortage of scholarly attempts to determine its place in intellectual history on the basis of Locke’s own writings and their relation both to preceding and subsequent traditions and modes of thought. Although John Dunn had argued in his influential study that Locke’s political thought was too thoroughly steeped in theology to remain relevant in the contemporary context, this thesis has since been persuasively challenged (albeit in very different ways) by Simmons, Zuckert and Waldron, among others.2 Each of these scholars has contributed to an emerging agreement [End Page 305] that the thread of Locke’s natural rights theory may indeed be carried all the way up to current political and moral debates in some form or another. The precise length of this thread as it extends in the other historical direction has, however, remained a point of heated controversy. The scholarly literature on this issue may be broadly described in terms of a spectrum determined by two opposing emphases in understanding the relation of Locke’s natural rights theory to its medieval predecessors: a continuity emphasis and a discontinuity emphasis.On the discontinuity end of the spectrum stand those such as Michel Villey, Leo Strauss, C. B. Macpherson and, more recently, Michael Zuckert who argue for the existence of some sort of “Copernican moment” separating medieval natural rights theories from their modern counterparts.3 Whether this moment is identified with William of Ockham in the fourteenth century or Hobbes in the seventeenth century, these scholars tend to emphasize the distinctively “modern” character of Lockean natural rights theory and its significant departures from medieval modes of thought. According to many of the advocates of discontinuity, Lockean natural rights are not only “modern” in their political applications but also in their more profound meaning as foundations for morality, and particularly in their newly conceived relation to the concept of natural law.4The continuity end of the spectrum is, perhaps, more variegated, including scholars such as Tuck, Tierney, Tully, Oakley, Nederman, Coleman, and Swanson, among others.5 Despite their many important differences, [End Page 306] these scholars each focus upon the similarities between various elements or strains of medieval thought and modern natural rights theories rather than the differences between them. Insofar as the scholars on this end of the spectrum explicitly consider Locke’s natural rights theory, they tend to emphasize Locke’s intellectual debt to various preceding traditions and thinkers rather than his innovations upon them. Building explicitly upon the work of Tuck, Tierney and Tully, Janet Coleman finds “some extraordinarily Lockean moments” in the medieval thinkers John of Paris and Godefroid of Fontaines, and argues that Locke ought to be understood as contributing to this medieval tradition of thought rather than departing from it.6 Scott Swanson, in turn, builds upon Coleman’s scholarship in carefully connecting medieval understandings of the rights of subsistence and the principle of extreme necessity to Locke’s natural rights theory. Swanson initially goes even further than Coleman in asserting that “all of Locke’s celebrated doctrine is here [in John of Paris’s writings] offered in a nutshell” before concluding on the more moderate note, echoed by Cary Nederman, that Locke’s “application of natural rights of subsistence to politics” may indeed have been something “new under the sun.”7Brian Tierney, who has long been a prominent... (shrink)

In the creation myth of the Timaeus Plato describes God as wishing that all things should be good so far as is possible. Wherefore, finding the whole visible sphere of the world not at rest, but moving in an irregular fashion, out of disorder He brought order, thinking that this was in every way an improvement. To achieve His end He placed intelligence in soul and soul in body, reflecting that nothing unintelligent could ever be better than something intelligent . (...) From this account of creation it would seem that God confronted a chaotic world whose disorderly motions existed in full independence of the principle of soul. Yet, in his doctrinal pronouncements in the Laws and the Pbaedrus on the origin of motion, Plato declares soul to be elder born than bodies and the prime source of all their changes and transformations. (shrink)

The reasonable human nature appears in the Enlightenment’s philosophy as a reduction of the human being and its manifestations to a complex of natural impulses when all former norms of perception, reflections, inclinations, actions and the moral principles, which lie in their basis, are canceled in the free human self-experimenting. The monarchy idea depreciates when its citizens turn in the public good’s proponents on the basis of a blind republican consent about the egoism’s limitation (Robespierre) and a prosopo-peia of freedom (...) that gives to a nation the self-government illusion. The reconsideration of the revolutionary moment as a self-affirmation of romantic spirit is connected for Tolstoy with the “world will” novel poetics opening evolutionary moment in the affective and reflexive dynamics of the hero’s consciousness, the limiting witness of the narrator and the author’s horizon of progressive movement to the historical process’s purpose that creates the belief in the need of coexistence with other participating consciousnesses. The revolutionary and evolutionary reflection of Tolstoy is related to the monoteis-tic prosopopoeia of divine kenosis. From an artistic representation of signifying articulations of the evolutionary world the teacher’s reflection of Tolstoy is born. For Tolstoy revolution is the moment of the senseless violence aiming to eliminate the common evil of the world. The conceptual basis of literary culture as an art and ideological formatting of reactive consciousnesses for Tolstoy is an infinite aspiration to the human self-limitation. (shrink)

The article deals with the peculiarities of the formation of the concept of freedom of human in the philosophy of history of Russian thinker at the beginning of the nineteenth century P. Chaadayev. Formation of spirituality and general worldview-philosophical principles in Russian philosophy at the beginning of the nineteenth century had their own peculiarities and differences from Western philosophy. Rationalism and individualism, as specific characteristics of Western philosophy did not satisfy the representatives of philosophical thought in Russia.The dominant principles in (...) philosophical culture are community, catholicity, versatility, reflecting the distinctive character of socio-political development. Representatives of Russian philosophy assumed that the next stage in the historical development of mankind should not be social separation, but reunification in a qualitatively new social unity. P. Chaadaev was the first in early nineteenth century, who conducted a complex philosophical analysis of the specifics of worldview and historical development of the people, forming the general foundations of the philosophy of history. Problems of historical development, morality, and religion determine the cognitive process and the synthetic interdependence of freedom of the will man’s will and necessity. Freedom of will is determined by cognitive abilities and spiritual and practical activities that bring it closer to «higher law», the syncretism of God’s wisdom. (shrink)

Jacques Derrida offers his recent commentary on the early career of Paul de Man as an urgent intervention in a discussion he fears is going awry. The most pressing danger he sees in the recent revelations is that they have played into the hands of de Man’s antagonists, who are now ready to denounce the whole of his career and even deconstruction itself. Against such indiscriminate critiques Derrida hurls the epithet: totalitarian. He is attempting to reseize the initiative in the (...) discussion and to reset the terms of the debate. His agenda extends across historical, theoretical, and political questions.He wants to affirm that a radical, indeed absolute break separates the later from the earlier de Man. He also wants to show that the young de man, however firmly committed to fascist ideology and however much an accomplice of the Nazis occupying Belgium, at the same time regularly distanced himself from that ideology and even undermined its meanings. Moreover, Derrida boldly takes up the challenge that these revelations have cast on the intellectual movement he and de Man have shaped. Can deconstruction come to grips with the political and intellectual history of its own leading American proponent? And can deconstruction in the process make a distinctive contribution to the understanding of fascism and intellectuals’ participation in it? John Brenkman is associate professor of English at Northwestern University. He is the author of Culture and Domination . Jules David Law is assistant professor of English at Northwestern University. He is currently working on a book-length study of the metaphors of surface, depth, and reflection in eighteenth- and nineteenth-century British prose. (shrink)

The United States Constitution was written for the purpose of establishing an effective but limited national government, a government that would be capable of dealing with national and international problems, but that would not be able to violate the traditional liberties of the people. Thus, the Constitution was, and is essentially a practical-juridical document. One should not expect to find there pronouncements about the nature of man, society, law, or the state, such as are often found in many other national (...) constitutions and international conventions. Nevertheless, several important characteristics of the Constitution—indeed its most important characteristics—are clear and admirable applications of the natural law. The principal drafters of the Constitution believed that God, in creating the universe, implanted in the nature of man a body of law to which all human beings are subject, which is superior to all manmade law, and which is knowable by human reason. Thus, the natural law of the American founders was traditional natural law as understood and expounded by classical and Medieval writers and carried forward in the English common law, and not the “Enlightenment” versions in vogue in eighteenth-century Europe. The classical-traditional natural law understanding of Madison, Hamilton, Wilson, and other leaders of the Philadelphia Convention are reflected in the three most important characteristics of the Constitution: the principle of limited government; the principle of subsidiarity (in both political and larger societal matters); and the practice of guaranteeing traditional rights, and only as against government. (shrink)

In the UK, many fundamentally important policy decisions that are likely to affect the relationship between citizens and care services are now made at the sublegislative level and without adequate ethical consideration and scrutiny. This is well exemplified in the proposed guidance on the disclosure of information on children. A recent consultation paper by the UK government on the subject proposes an approach that seeks a simple technical solution to a complex problem, emphasising control and surveillance. This reflects pressure to (...) be seen to act. The document fails with regard to ethical reflection appropriate to the complexity of the issue, an appreciation of complex relationships of trust, and a proper sense of the richness and complexity of the public interest. Such policies would, if implemented, fundamentally change the relationships between citizens and their carers, and among carers and the law and the state. This and similar proposals require far more ethical scrutiny and consideration of the public interest in the widest sense. (shrink)

For the past 30 years, the Melbourne urologist Dr Rodney Syme has quietly—and more recently, not-so-quietly—assisted terminally and permanently ill people to die. This paper draws on Syme’s recent book, A Good Death: An Argument for Voluntary Euthanasia , to identify and to reflect on some important challenges to what I outline as the traditional account of law, ethics, and end of life decisions. Among the challenges Syme makes to the traditional view is his argument that physicians’ intentions are frail (...) and unfairly expose physicians to moral and legal censure. Secondly, Syme argues that physician-assisted dying (PAD) should be framed as a form of palliative care, not as a kind of safety-chute for when palliative care fails. Thirdly, Syme himself is a rare breed: a dissident doctor who has opened himself up for scrutiny and criticism, by reflecting publicly on his experiences at the edge of the law. Syme’s career illustrates that prohibition, just like legalization, is a social policy that carries social consequences. The paper acknowledges the variability and idiosyncratic nature of extra-legal physician-assisted dying, and argues that the best way forward is to attempt to weigh the social consequences of both policies. Advocates and opponents of PAD should recognize that both prohibition and legalization involve trade-offs and impose possible costs on patients and on society. (shrink)

There is an intrinsic connection between genocide and colonialism where both concepts are in close proximity and are based on the logic of elimination. The fact that an active genocide of the Palestinian people continues in 2024 is extremely disturbing. A plethora of human rights laws and principles complement and reinforce the protections afforded under international humanitarian law. These laws were developed in order to prevent historical atrocities from repeating themselves. As history is re-written, it is submitted that these laws, (...) while good on paper, are not being put into practice in the case of Palestine. This article reflects on the application of specific international humanitarian laws, namely protecting healthcare, preserving nutrition and safeguarding children during times of conflict, and analyses how these protections are being flouted in the case of Gaza. (shrink)

At Danish universities, the governance structure is regulated by law. This structure was radically changed in 2003, abolishing the republican rule of the senate consisting of academics, students, and staff in favour of an authoritarian system assigning all executive power to the vice-chancellor, or as we say in Denmark, the rector. To introduce the current situation at Danish universities, in the first two sections of this article, I will compare them with more well-known counterparts in other countries. This situation is (...) reflected in exemplary cases, and in the third section, I focus on the most dramatic controversy ever encountered at a Danish university, the Koldau case, which reached national newspaper headlines and broadcasting in two rounds in 2011 and 2012. In the fourth section, I will interpret the case as an educational controversy in light of two conflicting ideas of the modern university, which may be attributed to two leading Enlightenment figures, Wilhelm von Humboldt and Denis Diderot. The conclusion is that to some extent, the failure to resist the neo-liberal university reforms in Denmark and the UK, and the drama of the Koldau case, may be explained with reference to the conflicting ideologies of those involved in these controversies. (shrink)

Despite the efforts of some modern Jewish law scholars, it is difficult to apply models of secular jurisprudence (whether positivist or Dworkinian) to the Jewish legal system. Internal analysis suggests that the “secondary rules” of the system are far too fragile. Rather, the system appears to privilege trust over objectively determinable truth. (But perhaps trust is a concept to which greater attention should be paid also in secular jurisprudence, as a legal realism informed by semiotics might maintain.) The practical implications (...) of this difference are here illustrated both from research on reform of Jewish marriage law and recent developments in the area of law and religion, in the wake of Archbishop Rowan Williams’ advocacy in 2008 of a model of “transformative accommodation”. (shrink)

The Patient Protection and Affordable Care Act of 2010 (ACA) contains many provisions intended to increase access to and lower the cost of health care by adopting public health measures. One of these promotes the use of at-work wellness programs by both providing employers with grants to develop these programs and also increasing their ability to tie the price employees pay for health insurance for participating in these programs and meeting specific health goals. Yet despite ACA's specific alteration of three (...) different statues which had in the past shielded employees from having to contribute to the cost of their health insurance based on their achieving employer-designated health markers, it chose to leave alone recently enacted rules implementing the Genetic Non-Discrimination Act (GINA), which prohibits employers from asking employees about their family health history in any context, including assessing their risk for setting wellness targets. This article reviews how both the changes made by ACA and the restrictions recently put place by GINA will affect the way employers are likely to structure Wellness Programs. It also considers how these changes reflect the competing social goals of both ACA, which seeks to expand access to the population by lowering costs, and GINA, which seeks to protect individuals from discrimination. It does so by analyzing both positive theories about how these new laws will function and normative theories explaining the likelihood of future friction between the interests of the population of the United States as a whole who are in need of increased and affordable access to health care, and of the individuals living in this country who risk discrimination, as science and medicine continue to make advances in linking genetic make-up to risk of future illness. (shrink)

While the image of the slave as the antithesis of the freeman is central to republican freedom, it is striking to note that slaves themselves have not contributed to how this condition is understood. The result is a one-sided conception of both freedom and slavery, which leaves republicanism unable to provide an equal and robust protection for historically outcast people. I draw on the work of Frederick Douglass – long overlooked as a significant contributor to republican theory – to show (...) one way why this is so. Focusing the American Revolution, the subsequent republican government established new political institutions to maintain the collective interests of the whole population. The political revolution was held in place by processes of public reason that reflected the values and ideas of the people that had rebelled. The black population, however, had not been part of this revolution. After emancipation, black Americans were required to accept terms of citizenship that had already been defined, leaving them socially dominated, subject to the prejudices and biases within the prevailing ideas of public discourse. Douglass argued that republican freedom under law is always dependent on a more fundamental revolution, that he calls a ‘radical revolution in thought’, in which the entire system of social norms and practices are reworked together by members of all constituent social groups – women and men, black and white, rich and poor – so that it reflects a genuinely collaborative achievement. Only then can we begin the republican project of contestatory freedom as independence or non-domination that today’s republicans take for granted. (shrink)

This collection, first published in 2000, brings together essays by some of the most prominent scholars currently writing in commercial law theory. The essays address the foundations of efficiency analysis as the dominant theoretical paradigm in contemporary corporate and commercial law scholarship. Some of the questions addressed in the volume are: What are the historical roots of efficiency analysis in contract, sales, and corporate law? Is moral theory irrelevant to efficiency analysis in these areas; if relevant, are morality and efficiency (...) compatible? Even if efficiency is otherwise reasonable as a normative goal in corporate and commercial law, does the complexity of efficiency make it practical to administer in adjudication? What is the best way of pursuing efficiency in corporate and commercial law? The volume reflects the most exciting work being done in contemporary legal theory. It will be of interest to professionals and students in law and philosophy of law. (shrink)

in a scientific way, and takes the patient and his family into his confidence. Thus he learns something from the sufferer, and at the same time instructs the invalid to the best of his power. He does not give his prescriptions until he has won the patient's support, and when he has done so, he steadilY aims at producing complete restoration to health by persuading the sufferer in to compliance (Laws 4. 720 b-e, [28]). This passage shows the perennial nature (...) of the problems of treating the patient as a person. It shows as well the historical'depth of philosophical interest in medicine. The history of philosophy includes more reflections upon medical ethics than the casual reader might suspect. Many of these reflections are pertinent to contemporary issues such as abortion and population control. Plato, for example, recommends abortion in cases of incest (Republic 5. 461c); and Aristotle argues for letting seriously deformed children die, while forbidding infanticide as a means of popUlation control, suggesting instead the use of early abortions. 'As to the exposure in rearing of children, let there be a law that no deformed child shall live, but that on the ground of an excess in the number of children... let abortion be procured before sense and life have begun; what mayor may not be lawfully done in these cases depends on the question of life and sensation' (Politics VII, 16,335 b20-26, [4]). (shrink)

This paper views such distinctions as creation and degeneration or good and evil in the Eastern sense of unity in polarity rather than in the Western sense of dual, antagonistic principles. Hence it considers the thermodynamic forces of evolution as processes of creation driven by entropy dissipation and explores the analogies this conception bears to the Hindu image of nature as the changing mist of a universal breath. Using this image, the paper examines the sense in which the second law (...) of thermodynamics connects chance and teleology in the operations of nature and provides for a causal hierarchy in which decision and volitional behavior co‐participate with the laws of nature to determine the course of evolution. (shrink)

This volume contains the English translation of Felix Kaufmann's (1895-1945) main work Methodenlehre der Sozialwissenschaften (1936). In this book, Kaufmann develops a general theory of knowledge of the social sciences in his role as a cross-border commuter between Husserl's phenomenology, Kelsen's pure theory of law and the logical positivism of the Vienna Circle. This multilayered inquiry connects the value-oriented reflections of a general philosophy of science with the specificity of the methods and theories of the social sciences, as opposed to (...) abstract natural science and psychology. The core focus of the study is the attempt to elucidate how and under what conditions scientific knowledge about social facts, empirically justified and theoretically embedded, can be obtained. The empirical basis of knowledge within the social sciences forms a phenomenological concept of experience. According to Kaufmann, this concept of experience exhibits a complex structure. Within the meaning-interpretation of human action as the core of knowledge in the social sciences, this structure reaches out across the isolated act of verification toward the synthesis of external and internal experiences. The book opens with a detailed and useful introduction by Ingeborg K. Helling, which introduces the historical and theoretical background of Kaufmann's study and specifically illuminates his relation to Alfred Schütz and John Dewey. Finally, it contains interviews with and letters to members of his family, colleagues and students. (shrink)

European thought begins with the Greeks. Scientific and philosophic thinking--the pursuit of truth and the grasping of unchanging principles of life--is a historical development, an achievement; and, as Bruno Snell writes in The Discovery of the Mind, nothing less than a revolution. The Greeks did not take mental resources already at their disposal and merely map out new subjects for discussion and investigation. In poetry, drama, and philosophy they in fact discovered the human mind. The stages in man's gradual understanding (...) of himself are revealed in the course of ancient literature from Homer to Virgil. A rational view of the nature of man slowly established itself in the creations of epic and lyric poetry, tragedy and literary criticism, pre-Socratic thought, and early Greek ethics all the way to the discovery of humanitas and the spiritual landscape of Virgil's Arcadia. The Discovery of the Mind is a landmark work in tracing this evolution of consciousness--one of the distinguishing characteristics of the history of man. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Aquinas and Black Natural LawThomas S. HibbsIn 1857, after the United States Supreme Court ruling in Dred Scott, Frederick Douglass chastised the court for arrogating to itself the role of God, that of being absolute judge. While the Supreme Court has its own authority, he argued, "the Supreme Court of the Almighty is greater. Taney can do many things but he cannot change the essential nature of things—making evil (...) good and good, evil."1 The passage is one of many in Vincent Lloyd's Black Natural Law that underscore the appeals of African American leaders, as part of their critique of slavery and segregation, to a higher or more fundamental law than that of human law. Lloyd describes the function of natural law reasoning, which he traces through the writings of Douglass, Anna Julia Cooper, W. E. B. Du Bois, and Martin Luther King Jr., in this way: From the careful examination of a "particular view of human nature" and its implications, they "apply those implications to the specifics of an ethical or political debate."2 That sounds similar to the way some contemporary Catholic proponents of natural law depict their own deployment of it. Early in the book, Lloyd suggests that "European and Catholic natural law traditions can learn much from the black natural tradition."3Concerning what might be learned, he focuses on an expansive conception of reason in the African American tradition, a conception of reason that is integrated with the role of emotion or passion and that is not [End Page 943] individualistic, but communal. He also underscores the epistemic privilege of the oppressed, the way suffering injustice attunes us to justice. Beyond the themes mentioned explicitly by Lloyd, I would add the paradoxical claim that natural law teaching is not just about the accessibility of fundamental precepts of justice, but also about the human capacity for moral blindness and the way in which the violation of the natural law is in important ways its own punishment. Because of the regularity of such blindness, attention to the obstacles to the perception of the natural law must become "part of the very activity of natural law." The ways in which these matters are articulated by African American authors can be, as Lloyd suggests, highly instructive. I would add that Lloyd's treatment of natural law in the African American tradition can also be fruitful for recovering neglected features of Aquinas's account. In what follows, I want to take up each of these themes and set them in conversation with the texts of Aquinas. As Alasdair MacIntyre, among others, has urged, seeing one's own tradition from the perspective of another, can, at a minimum, help us see it more clearly.4 As MacIntyre also notes, any such attempt faces the difficulties of translating from one tradition or community of inquiry to another. I must, accordingly, stress the limitations to the current essay, which can be nothing more than a preliminary investigation. I will largely be taking Lloyd's interpretation of the authors he studies as my assumed starting point, although in some cases I will offer my own reading of texts and authors he considers.5 What I will provide will be no more than an initial conversation, a first reading of Lloyd's theses in relation to germane themes and arguments in Aquinas. A much longer exchange, based on an immersive study of selected African American texts and the chief commentaries on them would be needed to advance the [End Page 944] conversation further. Before doing so, however, I want to provide a further reason that Catholic natural law thinkers should be eager to engage the Black natural law tradition, a reason derived from Joseph Ratzinger's reflection on the strange situation of natural law in the modern world.Ratzinger on the Vanishing Evidence for Natural Law and the Engagement of Wisdom TraditionsAs the contemporary Catholic natural law theorist Russell Hittinger has shown,6 Ratzinger, as a ressourcement theologian, is a critic of "rationalism," with "little confidence" in the older, "moral-juridical manualist and casuistical approach to natural law, which was prominent in casuistical approaches."7 In fact, he thinks that... (shrink)

Purpose of this article is to study the phenomenon of desire in Ancient Chinese and ancient Indian society, to reveal a material basis for the appearance and formation of the specific ethical attitude towards desire in the philosophical reflection of ancient thinkers. To fulfil this purpose, we should study and analyse methodology of desire studies in philosophical and psychological literature, analyse the ethical attitude towards desire in religious and philosophical texts of Chinese and Indian thinkers, understand social and economic (...) basis of such an ethical attitude, that is to establish material basis of desire as the specific form of psychic activity and to recreate the logic of its development. Theoretical basis. Culturological and economic studies of orientalists and dialectical logic. Originality. The paper presents the analysis of the perspectives and drawbacks of different approaches in desire studies. Research of ethical attitude towards the desire in Ancient China and India allowed us to recreate the logic of social relations and the level of productive forces in that society. The ideological foundation of conservation and recreation of power and property relations was found in the religious doctrine of suppression of individual desires. The connection between desire formation and division of labour and its preservation in the religious, political and legal forms of social consciousness was shown. Methodological perspectives of dialectical logic were defined in the study of logical and historical coincidence in the further development of the phenomenon and the notion of desire. Conclusions. Analysis of modern philosophical and psychological literature has revealed methodological drawbacks in desire studies, as they are focused on studying desire’s notion, its representation or separate aspects of desire in individual psyche disregarding its inner logic and material basis of its becoming. Studies of the ethical attitude towards desire in Eastern culture have shown the consensus in desire suppression of individuals and similarities between Ancient Chinese and Indian cultures. There is shown significance and material basis of the transcendental law suppressing the desires even of the higher classes of the oriental society. The methodological approach stated in this article can be applied for further desire studies of Ancient Greece culture, Christian ethics and modern society. (shrink)

In a recent case in the UK, six men stored their sperm before undergoing chemotherapy treatment for cancer in case they proved to be infertile after the treatment. The sperm was not properly stored and as a result was inadvertently destroyed. The men sued the NHS Trust that stored the sperm and were in the end successful. This paper questions the basis on which the judgement was made and the rationale behind it, namely that the men ‘had ownership’ of the (...) sperm, and that compensation was thus due on the grounds that the men’s property had been destroyed. We first argue that the claim is erroneous and enhances the tendency towards the commodification of body parts. We then suggest that the men could have been compensated for the harm done to them without granting property rights, and that this would, at least in philosophical and ethical terms, have been more appropriate. To help illustrate this, we draw on a parallel case in French law in which a couple whose embryos had been destroyed were overtly denied ownership rights in them. Finally, we suggest some possible ethical and practical problems if the proprietary view expressed in the UK ruling were to become dominant in law, with particular focus on the storing of genetic information in biobanks. We conclude that, although compensation claims should not necessarily be ruled out, a ‘no property in the body’ approach should be the default position in cases of detached bodily materials, the alternative being significantly ethically problematic. (shrink)

Ethical guidance in research is underpinned by the need to show respect for study participants by upholding autonomy in participant decision-making, and confidentiality and protection of individual rights, privacy and interests, yet decision-making could also be influenced by the participant’s sociocultural and belief systems. This calls for a more Africanised approach to research ethics where these values and beliefs are upheld. While national and international ethics guidelines do exist, there is little evidence that such a paradigm shift in research ethics (...) is adequately interrogated in the teaching and learning curricula in higher education, where research skills are developed and nurtured. Critical reflection is used to highlight opportunities to stimulate learning and debates underpinned by humanised pedagogy in higher education. (shrink)

The Qumran community of Essenes belongs to the religious sects of Palestine II. BC - 1st century BC not. It arose in the line of Judaism and was closely connected with the Jewish religion. This is evidenced by the spiritual library of the community and the strict observance of the law of Moses by its members. In order to get closer to the understanding of nature and the essence of spirituality, one should not only take into account the complete legal (...) features of its similarity to official or normative Judaism, but to note the differences that existed between them. These differences were determined in the social and religious isolation of the Qumran community from the Jewish community and were reflected in a desert, similar to the monastic way of life, in rejection of participation in the temple cult, a specific ritual of washing, different from the established burial ceremony, in the use of a special solar calendar. All this testifies at the same time to the specificity of the ideological views of the members of the Qumran Brotherhood. It is difficult to say whether the theological system of the Qur'an outlook has survived to date, since its essential elements were transmitted orally and not recorded. (shrink)