Should there be civil liability when a person who could easily and without risk rescue another fails to do so? It is argued that the failure to act does not cause the harm that follows, and that the misfeasance/nonfeasance distinction provides no basis for liability. In spite of this, it is maintained that there can sometimes be a duty to rescue, and even a right to be rescued, even in the absence of a voluntary undertaking or an explicit assumption of (...) responsibility.There are convincing arguments for some sort of legal recognition of a duty to rescue, but these arguments do not support tort liability. Nor is a case for tort liability made with the argument that a growth of tort law in this direction would be compatible with the values most centrally involved in the division between torts and contracts. Furthermore, there is a case against tort liability — namely, that the purpose of tort liability is to compensate, that there are certain sorts of situations in which compensation is apposite, and that failure to rescue does not fit into these categories. Criminal liability is the appropriate way for the law to recognize a duty to rescue. (shrink)
Thus, says Hare, a judgment that someone is happy is an appraisal, not a statement of fact. I do not wish to deny that there are some uses of 'happy', ascribed to a person or to a life, for which this is the case; but I would like to maintain that there are other uses of 'happy', philosophically important ones, in which a judgment that a third person is happy is not an appraisal, but is rather a report about him (...) which may be true or false; and in which a first person judgment that one is happy, while it involves an appraisal, is still a report which may be true or false. (shrink)
The vagueness or imprecision of ‘the normal’ allows it to be exploited for various purposes and political ends. It is conspicuous in both medicine and athletics; I am going to try to say something about the normal in each of these areas. In medicine the idea of the normal is often deployed in understanding what constitutes disease and hence, as some see it, in determining the role of physicians, in determining what is or ought to be covered by insurance, and (...) in underwriting certain views on social justice. In athletics the use of performance enhancing substances raises different sorts of questions about the normal, especially when it comes to deciding what constitutes an enhancement and which enhancements, if any, are acceptable. (shrink)
In this paper I will first bring out some linguistic difficulties which suggest that the notions of benefit and harm are not as straightforwardly univocal as one might have thought, and then go on to make some distinctions within these notions which will bring to light their complexities, and help to clarify the relation between the good and the beneficial. The notion of the good and of the bene- ficial that are being used here are tied to human happiness. There (...) are other conceptions of the good of man, and I may be mistaken in connecting it exclusively with human happiness, but the logical points concerning the concepts of benefit and harm will not be directly affected by this. (shrink)
The purpose of this volume, the editor says, is to meet “the need of the beginning student [of law] to get a handle quickly on the vast and diverse theoretical landscape that is the first-year experience” in law school. It is conceived as a supplement to case books and other first-year materials. In this, it is quite successful. Most of the contrib-utors have done a fine job canvassing a number of ideas or positions; the most successful essays are extremely helpful (...) if one has some familiarity with the territory. (shrink)
In recent years a number of writers have maintained that law can usefully be illuminated by game theory. Some believe that game theory can provide guidance in formulating rules for dealing with speciﬁc problems. Others advance the philosophically ambitious contention that we can gain a better understanding and/or appreciation of law by seeing it in terms of game-theoretic ideas. My purpose in this article is to examine some claims of the latter sort, and in particular to ask how distant law (...) can be from the assumptions of game theory and still be informed by it. Models are not expected to ﬁt precisely what they model, but at some point the deviation is too great and there is a failure to illuminate. (shrink)
Ever since the publication of Mansfield Park readers and critics have debated how to understand the novel and particularly its heroine Fanny Price. Some have disliked Fanny, have thought of her as prudish and priggish, and perhaps have preferred Mary Crawford and wished for a different ending to the story. Others have defended Fanny’s virtue, her judgment, and her mind, regarding them as quite superior to the virtue, judgment, and minds of all of the other women in the novel, and (...) all the men too, excepting (perhaps) Edmund. The debate, quite clearly, is about what Jane Austen was up to in a novel with a heroine so different from those in her other novels. The question is unclear in part because the narrator’s voice in Mansfield Park is so much like Mary Crawford’s voice. In her article “Searching for Jane Austen in Mary Crawford,” Emily Auerbach offers us quotations from Mary Crawford and from Jane Austen’s own letters and challenges us to figure out which are which—and it is very difficult. Mary Crawford, like Jane Austen, is frequently sparkling and edgy while Fanny is not, yet Fanny is the star. (shrink)
Why is it that for many people questions of sexual behavior are the quintessential moral questions, while for others they are at the periphery of serious moral inquiry? Such a difference of opinion undoubtedly reflects substantive moral disagreement, but might also reflect different conceptions of what morality is about. Probably it reflects both sorts of differences, and both will receive attention in this article.
The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit.
"The main argument of this paper is that there are reasons for judges not only to evaluate the substantive merit of legislation, but to advert to the fact that the place of elected legislatures in our scheme of government gives legislation a standing, an entitlement to consideration, that may go beyond judicial estimates of its intrinsic merit." [Is this just a statement of procedural legitimacy?] "To answer the question [of who assigns rights], courts must take a view as to the (...) proper role of courts vis-a-vis legislatures; they must take a view about the allocation of power in our legal/political system. In drawing this line, courts can take one of two approaches. First, they can make decisions solely on the basis of considerations internal to the relevant clauses of the Constitution, perhaps by giving them a moral reading. Second, they can include in their thinking institutional considerations regarding the role of popular decision-making bodies in our governmental structure." Claims that Dworkin advocates the first [which is false], and that we should accept the second, which is advocated by advocates of judicial restraint. It is appropriate for a judge to give weight to the fact that a decision was reached by a legislature. "Specifically, I think it appropriate that courts presume the constitutionality of such laws, understanding that their own role demands that they overturn them if they are not merely different from what the judges might have decided on their own, but are beyond acceptability." Reasons for the presumption of constitutionality: value of compromise, allocation of power ), appropriateness of humility, integrity and community. (shrink)
The implication intended by the title is that there are elements ofjustice that are required and others that are desirable but not morally required. That is one of the views for which I have argued. The elements of justice that are morally required, and to which an individual has a right, are three. 1. Reciprocity.-A person, whether in or outside of a society, is justified in insisting, unless a voluntary agreement supersedes, that there be a balance between the value of (...) what he gives and the value of what he gets. 2. Conditional equality.-If a society distributes a good or acts in such a way as to affect distribution, one is justified in insisting that he be presumed to be equal to everyone else. 3. Certain elements of welfare. -A person is justified in insisting that a social collective on which he is dependent support deficiencies in his welfare that are attributable to his being a victim of the economic life of the collective. (shrink)
Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to (1) flesh out this “Redundancy” Thesis (RT) (...) and (2) identify and criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce (respectively) to duties (the Correlativity Thesis) or to permissions (the Permissibility Thesis). I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)
Several philosophers, including most prominently Theodore Benditt, have recently urged that the discourse of rights, widely thought to be a central, if not foundational feature of moral and political thought, is in reality a mere “redundant” appendage---a discourse that holds no distinctive place in moral or legal reasoning owing to the fact that it is thoroughly derivative because collapsible into other forms of moral or legal language. In this paper I attempt to flesh out this “Redundancy” Thesis and identify (...) and criticize at least two general arguments that might be thought to give rise to it: the claims that rights reduce to duties or to permissions. I try to show how and why these arguments fail and why they do not therefore support RT. (shrink)