According to a persistent assumption in legal philosophy, the social rule at the foundation of a legal system (the Rule of Recognition) serves both an epistemic and a duty-imposing function. Thus, some authors have claimed that it would be a formidable problem for legal philosophy to explain how such social rules can impose duties, and some have taken it upon themselves to show how social practices might just do that. However, I argue that this orthodox assumption (...) about the dual function of rule of recognition is ill-founded. Contrary to the orthodox view, we have no good reasons to ascribe more than an epistemic function to the rule of recognition. Accordingly, the norms deriving immediately from the rule of recognition are no different than those entailed by other epistemic, grammatical or syntactic norms. Consequently, accounts of the normativity of law need not explain how social practices like conventions or plans might impose duties on the officials of a legal system. (shrink)

The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer . Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence (...) of a mistaken payment is that the recipient is liable to be judicially ordered to repay a sum of money equal to the payment. Second, it matters that the law governing impaired transfers imposes only liabilities, and not duties, because, inter alia, explaining and justifying liabilities is different from explaining and justifying duties. In particular, certain well-known objections to attempts to explain impaired transfer law can be avoided once it is recognized that this law is concerned exclusively with liabilities. In summary, then, this essay argues that the distinction between duty-imposing and liability-imposing rules has important implications for understanding the foundations of the law governing impaired transfers. (shrink)

Late last year the English Court of Appeal confirmed a lower court's ruling that doctors could impose an operation to separate recently born conjoined twins, overriding the refusal of consent of their parents. The doctors believed the operation would probably save one of the babies at the cost of killing the other, while not operating would highly probably be followed by the death of both twins within months of their birth. The parents, said to be devout Roman Catholics, believed that (...) it was absolutely wrong to kill one of their babies, even to save the life of the other.Undoubtedly many people, the writer included, would agree with the English courts that the “least worst” option was to separate the twins and save one at the cost of killing the other. But surely many fewer people would have imposed their own resolution of this acute moral dilemma upon parents who conscientiously chose the other limb of the dilemma, refusing to kill one baby even in order to save the other. Were the English judges right, then, to take away the parents' normal right and duty to make health care decisions on behalf of their children and instead impose their own answer to what they admitted to be a terrible dilemma? Describing the two alternatives in terms of choosing between the lesser of two evils on the one hand, and the obligation not to kill on the other, Lord Justice Ward declared, according to The Times law report,1 that: “Parents who were placed on the horns of such a terrible dilemma simply had to choose the lesser of their inevitable loss [sic]”. But that surely is to beg the moral question in favour of the judges' preferred answer to this moral dilemma. The fact is that there are—as …. (shrink)

Photo by Jonathan Ford on Unsplash ABSTRACT Since 2008, an average of twenty million people per year have been displaced by weather events. Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. This paper analyzes the idea of expanding a duty to rescue to climate migration. We (...) address who should have the duty and to whom the duty should extend. The paper discusses ways to define and apply the duty to rescue as well as its limitations, arguing that it may take the form of an ethical duty to prepare. INTRODUCTION Climate migration creates a special setting for a duty to rescue. A duty to rescue is a moral rather than legal duty and imposes on a bystander to take an active role in preventing serious harm to someone else. Examples of circumstances range from person-to-person intimate rescue to saving those in poverty, even in distant parts of the world.[1] Since 2008, an average of twenty million people per year have been displaced by weather events.[2] Circumstances like being thrust from homes under the threat of fire, mudslide, and flooding vary greatly from long-term changes like land becoming too arid for crops or temperatures increasing annually gradually pushing up the number of heat-related deaths, with the area slowly becoming uninhabitable. Imminence in fleeing affects resettling and need for rescue with important implications for how the duty to rescue might apply. This paper reevaluates the ethical framing of the duty to rescue and, while it is arguably a stretch, applies it to climate migration. Climate migration has become common and is expected to increase due to rises in sea level, increases in weather events that make areas uninhabitable, and changes to land that preclude farming or other necessary land uses. We argue that a duty to rescue may help highlight who has moral obligations to whom. Because the problem is so large in scope, we suggest a change in the ethical limits to humans' duty to rescue other humans who are in distress. We imagine an expansion or extension of the duty to rescue to meet some of the basic needs created by climate migration. Yet how it should expand, and how much depend on ethical framing and practical limitations. l. Expanding the Geographical Boundaries Two commonly recognized emergencies, Hurricane Katrina in the case of weather events and the current COVID-19 pandemic, provide a historical and current backdrop to evaluate ethical obligations as more disasters displace people. A significant reassessment of the ethical scope of an obligation to rescue in the case of weather events will be limited by the ability to render aid to those in distress in the case of a planet-wide weather catastrophe. The problems may overwhelm the ability to rescue or the reasonableness of attempting rescue. The extent of the moral obligation borne by humans to other humans in the case of a weather event has been largely defined by its locality and limited geographic influence. Whether we are imagining the scope of ethical obligation in the case of hurricane, flood, tornado, drought, or wildfire events, the perceived ethical obligation is significantly defined by the limited impact of these weather events on people outside the zone of the weather event's direct impact, yet close to that zone. A hurricane affecting New Orleans will not have immediate impact on the residents of California or even those on the northeast coast of the United States until a later time. Wildfires in the Pacific Northwest do not impair the ability of those in the rest of the country to come forward with assistance. But as climate migration crosses international borders, and climate events occur simultaneously in many regions, a more expansive duty to rescue may provide the ethical impulse to help those who live afar or migrate long distances. In this respect, the need for help in the event of widespread climate migration due to global warming is more like a pandemic than a weather event. Its broad impact area diminishes the capability of nearly the entire balance of the human population to help due to those populations' awareness that they will, in short order, have the same need for the same resources, from the same cause. Those living near current flood zones may find their historically safe havens are also a flood zone. Those previously best positioned to rescue may find themselves also needing to relocate. Thus, we may observe the need for new rescuers. ll. The Rule of Rescue The Rule of Rescue as defined by Al Jonsen describes the moral impetus or knee jerk reaction to save identifiable people facing death.[3] A duty to rescue has since been expanded beyond imminent death and beyond the near and identifiable. But there are limitations. For example, by most accounts, the ethical duty tends not to require extreme bodily risk or financial depletion. In comparing Good Samaritans to humanitarians, Scott M. James argues the duty to rescue arises from unique dependence, but the ethical obligation to help strangers through humanitarian aid is of a different nature.[4] The wrongness of failing to help is arguably more egregious when one is in a unique position to help. Like in the tragedy of the commons, where there is no unique positioning, when the global community is called upon to help, each individual in it may feel less obliged to do so. Climate migration falls in between—it requires helping strangers, yet it may move forward without anyone seeing themselves as uniquely positioned to help until those strangers become part of communities, at which time, there may be more moral justification to help a community member in need. Generally, arguments about Good Samaritans hinge on extraordinary acts, praiseworthy because they are acts of compassion, not obligation. Now all US states have Good Samaritan laws[5] which protect helpers from liability for help gone wrong or for a failure to succeed once engaged in an act of rescue. Extraordinary help as a moral good is thus somewhat encouraged through legal protection, but not imposed. Conversely, jobs like firefighting, search and rescue, and emergency medical care tend to oblige employees to take on risks that would be extraordinary if undertaken by the average bystander, yet they are rendered ordinary rescue as part of the job. Three states, Minnesota, Rhode Island, and Vermont have a broad duty to rescue, adding legal considerations to an otherwise moral conundrum. The laws do not require bystanders to take on risk for the sake of rescuing strangers.[6] The moral duty will require looking beyond law, but it is unclear how the moral duty to rescue should be distributed in the case of climate migration. A bare minimum would prevent taking advantage of newcomers, paying sub-minimum wage, and discriminating against them. Yet such a minimum is hardly rescue. lll. An Ethical Rather than Legal Duty The difficulty in defining the duty to rescue as a legal obligation is that it is difficult to determine the extent of risk a rescuer ought to be required to take. The nature of this ethical duty is also arguably tied to the experiences of both the rescuer and the rescued. There are subjective aspects like what someone perceives as a danger that make it difficult to write enforceable laws requiring rescue. It is one thing to expect a rescuer to step into several inches of relatively warm water to lift a person lying face down in a pond and enable them to breathe. It is something altogether different to expect that rescuer to dive into frigid water and attempt to extricate someone trapped in a submerged automobile. As the legal philosopher H.L.A. Hart observed, it is always easier to define application of the core intention of any rule, whether law or ethical norm. It is more difficult to create legal certainty about how the law applies to what he described as “penumbra circumstances”. In the case of a hurricane, it is easier to define what surplus resources are available in areas geographically remote from the impact of the storm and demand, as a moral obligation, that those nearby but outside the area provide assistance. It is more difficult to obligate people, organizations, or governments to supply a quantity of medication or some number of ventilators to an adjacent community when they expect to imminently need them for their own community. In the early stages of climate migration, the ethics of extreme weather event assistance, a common application of the duty to rescue, will be useful and appropriate. The rising sea levels first experienced by island nations in the South Pacific[7] will not render those living in other coastal communities, those with greater available “high ground”, unable to supply resources to those in need. But when sea level rise and climate change affect more communities simultaneously, albeit in varying degree, the task of defining what response is ethically obligatory becomes increasingly complicated. Pinpointing the obligations of those communities which are resource rich to those communities which are resource deprived, and of those partly affected to those more severely affected may become necessary. The limitations of the traditional duty to rescue could expand to meet the needs. lV. Contribution to the Problem Many argue that the duty to rescue may depend on any appropriate claim of those needing rescue. One issue is whether preferential claims among those who can identify the source of the harm should call for a greater duty or whether everyone in need should be approached as like candidates for rescue, shaping the duty as equal across those on the receiving end. As climate change does have human-made causes, there are strong arguments to impose a greater ethical duty on any entity that caused the climate-related problems leading to the mass exodus. While the global north is often implicated in pollution that causes migration, industries like energy, transportation, and agriculture are tied to climate change and associated with significant greenhouse gas emissions.[8] Practices like directing agriculture to less sustainable single crop growth generally made land less farmable. Yet it is difficult to place blame and identify specific causal relationships as most migration is due to many factors. A movement toward greater accountability can be reframed as a greater duty to rescue, a duty to engage in the extraordinary. The fossil fuel industry, for example, should have a larger obligation than the average person. Similarly, some may argue anyone unjustly enriching themselves while contributing to climate change or people who over-consume have an elevated duty to rescue.[9] Climate change lawsuits demonstrate an eagerness to hold governments and corporations accountable, despite difficulty proving causation. V. The Most Vulnerable One ethical dimension of climate migration that remains unexplored is how a duty to rescue applies to vulnerable populations who stand to be left behind or unable to migrate without assistance. Researchers from the Global North working across the Global South are increasingly observing the phenomenon of ethics dumping, where the research ethics of some countries are imposed on research subjects in other countries.[10] In that vein, rescuers should be careful not to impose unwelcome cultural standards or exploit people who are in the process of migrating. There is a gap in discussions reflecting voices that have been left out. The duty to rescue is incomplete without an attempt to understand the ethical experiences of those being rescued. The actual people affected by climate migration who are the least likely to have the means to migrate, or to do so without extreme hardship, should have a voice informing the global community including those in a position to carry out rescue. People who have the means and are young and healthy may easily make decisions to avoid the catastrophic consequences that climate migration brings. However, what about those who are left behind? For example, especially recognizing cultural differences, the homeless community, disabled community, refugees, the elderly community, and women[11] and children may suffer differently and call for more attention. In some parts of the world, human rights are severely constrained. An ethical duty to rescue, with many considerations and variables, may be more justified in the case of those most in need. As climate migration continues and increases significantly, it may be reasonable to ask the local and global community to focus on those least well positioned to migrate successfully. In this context, the use of phenomenology to understand the lived experiences of those migrating, sometimes termed “ethical experiences”, may help flesh out how a duty to rescue takes shape. The discussion of duty and obligation requires an articulation of the ethical experiences (how the local community in need of rescue views the proposed rescue). Then, the obligation to interpret the duty as ‘one shall not’ or ‘one must’ can be focused on the migrants’ needs rather than the rescuers’ feelings of obligation.[12] A revised theory of the duty to rescue taking into account the asymmetrical experiences of communities involved could ensure that the needs of people whose living situations, gender, ethnicity, age, or race impact their ability to even begin the migration process are considered. In this discussion, the rescuing is directed toward communities /collectives of persons migrating, whether at once or across a period of time. Often, the climate migrant may not be in a state to articulate the nature of this event when it happens, given its subjective proximity. Yet, when communities are given the space and opportunity to articulate their shared values, the ethical action of rescue derives its meaningfulness from the community rather than the rescuers. In other words, allowing climate migrants to explain their feelings can add complexity to what some see as a binary receiver-giver (of rescue) dynamic. This is necessary because the concept of vulnerable populations is fraught with problematic assumptions. There have been various definitions and criteria to determine what would constitute vulnerable populations.[13] For example, the United Nations Framework Convention on Climate Change[14] identifies and assesses vulnerable populations. These criteria may be helpful. However, they do not provide the full picture. Rather than identifying categorical criteria of vulnerable populations, engaging with people who are experiencing climate migration and listening to their current experiences and concerns helps determine need. Knowing what people need may prevent the kneejerk reaction to label people who are quite resilient yet have appropriate needs “vulnerable”. Proceeding with caution is important because the duty to rescue has hierarchical underpinnings of "us" and "them." Often when people swoop in to save, there are good and bad consequences of the intervention. We should proceed with caution because often the helper misses the actual needs of those in need. The only way to combat this would be to make sure that people are empowered to inform those agencies that are able to help. In addition to more practical approaches, large scale oral histories could allow those who have migrated already to share their experiences. It would be important to capture the lived experiences of people who are already experiencing the consequences of climate migration or of other migration like that due to political or economic extreme events. These experiences could shape our analysis of whether people in fact wish for rescue. If so, further conversations can determine best actions as well as give important insight into what resources might be necessary to empower people now and in the future. Vl. A Duty to Rescue as a Duty to Prepare If we view Good Samaritans as going above and beyond, then a duty to rescue, something ethically compelled, must bring rescue out of the framework of charity and place it in the context of humanity and obligations. Such a view would also support expanding the geographical reach of the otherwise more proximate duty. The duty may be stronger and take shape in a more workable way if it applies to preparing places expecting to see an influx of people due to climate migration and to helping those most in need. The duty may arise out of expectations of what type of community the place welcoming those migrating due to climate should be—does it want to offer good housing, schooling, and medical care as well as economic opportunity to new people? And if so, at what cost, or with which risks? If the newcomers are viewed as community members rather than strangers, a model of acceptance may lead to better preparation. Some considerations like whether the actions will reasonably help the persons in need of rescue[15] will shape the application of a duty to rescue in the context of climate migration. Similarly, ensuring that people have the chance to articulate their values may help communities support the newcomers. New relationships should not be defined as migrant and rescuer. Voluntariness in participation and not forcing any action deemed rescue would help ensure the human rights of those migrating. In the United States, President Biden issued an executive order addressing impending climate migration steeped in a duty to prepare by making plans for resettlement and to address the impact of climate migration.[16] Vll. At What Risk? As we investigate the ethical obligations to meet even basic needs, we must also ask what level of risk is ethically compelled. There is an extraordinary need to integrate newcomers successfully, but it is difficult to stretch an ethical duty to rescue to require all the prerequisites for successful climate migration. Even defining success would create deep ethical arguments. As observed in almost all migrations, extraordinary charitable acts may be the key to success, while an ethical duty to rescue must try to require the important government and community-based basics and ensuring respect for human rights. That is, the migrating people should be rescued from circumstances that contradict basic human rights. Rather than comparing communities to bystanders, mere places where people will arrive and need to hash out how to find housing, jobs, education, and opportunity, a duty of preparation may be the key to rescue those disenfranchised by migration. There are cultural, personal, physical, psycho-social, and geopolitical issues surrounding how to best help those needing to permanently relocate. Ethics arguments will certainly range from “do nothing”, which may fail people, to “do everything”, which could waste taxpayer money in futile over-preparation while failing to actually help. Communities must avoid planning exclusively for one scenario only to have it not take place. Striking the balance, a duty to rescue as it could apply to climate migration should set goals of societal integration, and providing the basics like education, housing, food, health care, and job opportunity, the precursors to flourishing. Recommending the extraordinary, morally preferred but perhaps not compulsory, when charitable actors are participating, or when wrongdoers are compensating, may be more workable than seeing the duty to rescue as compelling people or local governments to take on significant financial and personal risk for newcomers. While humanitarian ethics supports helping everyone, it is likely that people who resettle in advance of a need to flee will find themselves with more choices and opportunities. Help is warranted for those with more dire needs. Preparing for them may do just that. Vlll. Rescue Prior to Migration and Rescue in the Process of Resettlement The duty to enable the migration in the first-place hints to the inadequacy of a duty to prepare. The traditional duty to rescue perhaps steps in if rescue looks like those geographically just out of harm's way rescuing those in danger. That resembles the traditional moral requirement, or duty to rescue according to the Rule of Rescue. Humanitarian aid typically provided by many institutions makes sense and is in place, although financial support for additional humanitarian aid is always needed. Despite having moved to purportedly more capable communities, migrant communities may be able to develop more egalitarian orders of living. Rather than continually being identified as having been rescued, it is important to make sure people keep or make social ties during and after migration. Immigrants often face social isolation.[17] Small shifts in gestural language also have the potential to welcome people and show they are valued. For instance, some migrants may not like questions like “Where are you from?” and “What brings you here?” as they emphasize differences over fitting in. CONCLUSION The ethical duty to rescue should be expanded to better match those in need of relocation with a welcome environment and the resources needed to achieve success and fully integrate socially and culturally. Expanding a dialogue that includes the voices of people who have recently migrated whether due to violence, poverty, or climate, could properly frame the extent of the duty. If we are to apply the duty of rescue to climate migration, rescuers should avoid labeling people vulnerable, dependent, or needy, although there is reason to focus on those whose needs are the most dire. A soft duty to rescue people during the course of climate migration can come in the form of preparation. People will need help finding housing, education, access to food, and employment. Ultimately, to help them help themselves may be the best goal. While the obligations should be borne differently by people, whether due to a special responsibility, or a special relationship that creates a clearer duty, the global community must prepare for its role in rescuing those displaced by climate events. By helping those displaced at the start of the climate migration process according to a more commonly held notion of the duty to rescue, and by preparing to incorporate newcomers successfully according to an expanded duty to rescue, effectively a duty to prepare, countries that take on climate refugees may find themselves rewarded by the cultural diversity and workplace talents that people bring. A duty to those at a distance is a reasonable expansion of the duty to rescue. But what one ought to do in the global community varies somewhat from the traditional Rule of Rescue. - [1] Singer, P. (1972). Famine, Affluence, and Morality. Philosophy and Public Affairs, 1(3): 229-43. [2] Irfan, U. (2022, March 16). Why We Still Don’t Yet Know How Bad Climate Migration Will Get. Vox. https://www.vox.com/2022/3/16/22960468/ipcc-climate-change-migration-migrant-refugee, citing the International Panel on Climate Change (IPCC) (2022). Sixth Assessment Report, Climate Change 2022, Impacts, Adaptation, and Vulnerability. https://www.ipcc.ch/report/ar6/wg2/ [3] McKie, J., Richardson, J. (2003) The Rule of Rescue. Social Science & Medicine, 56(12): 2407-2419. https://doi.org/10.1016/S0277-9536(02)00244-7. [4] James, S.M. (2007). Good Samaritans, Good Humanitarians. Journal of Applied Philosophy, 24(3):238-254. [5] Overview of Good Samaritan laws. https://worldpopulationreview.com/state-rankings/good-samaritan-law-states [6] Fifield, J. (2017, Sept. 19). Why It’s Hard to Punish ‘Bad Samaritans’. Stateline Blog, Pew Charitable Trusts, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/09/19/why-its-hard-to-punish -bad-samaritans [7] Cassella, C. (2019). There’s a Climate Threat Facing Pacific Islands That’s More Dire Than Losing Land, Science Alert, https://www.sciencealert.com/pacific-islanders-are-in-a-climate-crisis-as-rising-sea-levels-threaten -water; Hassan, H. R., and Cliff, V. (2019). For Small Island Nations, Climate Change is not a Threat. It’s Already Here, World Economic Forum, https://www.weforum.org/agenda/2019/09/island-nations-maldives-climate-change/ [8] For example, Lyons, K. (2019). Australia Coal use is Existential threat to Pacific Islanders, The Guardian. https://www.theguardian.com/world/2019/aug/12/australia-coal-use-is-existential-threat-to-pacific-is lands-says-fiji-pm [9] Cripps, E. (2013). Climate Change and the Moral Agent: Individual Duties in an Interdependent World. Oxford: Oxford University Press. [10] Schroeder, D., Chatfield, K., Singh, M., Chennells, R., and Herissone-Kelly, P.. Ethics Dumping and the Need for a Global Code of Conduct. In Cham. (Ed.)(2019). Equitable Research Partnerships. SpringerBriefs in Research and Innovation Governance. Springer. 2019. https://doi.org/10.1007/978-3-030-15745-6_1 [11] Giudice L.C., Llamas-Clark E.F., DeNicola N., Pandipati, S., Zlatnik, M.G., Decena, D.C.D., Woodruff, T.J., Conry, J.A. (2021). Climate Change, Women’s Health, and the Role of Obstetricians and Gynecologists in Leadership, International J Gynecol Obstet, 155(3), 345-356. 10.1002/ijgo.13958 [12] See Ferrarello, S. and Zapien, N. (2020). Ethical Experience: A Phenomenology, Bloomsbury. (for understanding phenomenological determinants of ethical action). [13] McLeman, R.A., Hunter, L.M., (2010). Migration in the context of vulnerability and adaptation to climate change: insights from analogues. Wiley Interdiscip Rev Clim Change, 1(3): 450-461. [14] Least Developed Countries Expert Group. (2018). Considerations Regarding Vulnerable Groups, Communities and Ecosystems in the Context of the National Adaptation Plans: United Nations Framework Convention on Climate Change. [15] Jecker, N.S. 2013. "The Problem with Rescue Medicine." J Med Philos, 38(1):64-81. [16] White House Report. (February 9, 2021), Executive Order (E.O.) 14013, “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” (calls on the National Security Advisor to prepare a report on climate change and its impact on migration. “This report marks the first time the U.S. Government is officially reporting on the link between climate change and migration.” https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling -the-climate-crisis-at-home-and-abroad/ [17] Torres, J.M., Casey, J.A. (2017) The centrality of social ties to climate migration and mental health. BMC Public Health, 17: 600. https://doi.org/10.1186/s12889-017-4508-0. (shrink)

We address the way verb-based and rule-content knowledge are combined in understanding institutional deontics. Study 1 showed that the institutional regulations used in our studies were readily categorised into one of two content groups: rights or duties. Participants perceived rights as benefiting the addressees identified by the rule, whereas they perceived duties as benefiting the collective that imposed the rule. Studies 2, 3, and 4 showed that rule content had clear effects on perceptions of violations and (...) relevance of cases for explaining the rule, even when controlling for deontic verb, phrasing of the action permitted by a right, or the formality of the deontic verb. These effects are incompatible with a simple pragmatic disambiguation approach to pragmatic modulation, as they often induce permissibility judgments that contradict the core semantic meanings of the deontic verbs. Other ways of reconciling verb meaning with rule content should be considered in a fuller the.. (shrink)

One of the principal lessons of The Concept of Law is that legal systems are not only comprised of rules, but founded on them as well. As Hart painstakingly showed, we cannot account for the way in which we talk and think about the law - that is, as an institution which persists over time despite turnover of officials, imposes duties and confers powers, enjoys supremacy over other kinds of practices, resolves doubts and disagreements about what is to be done (...) in a community and so on - without supposing that it is at bottom regulated by what he called the secondary rules of recognition, change and adjudication. Given this incontrovertible demonstration that every legal system must contain rules constituting its foundation, it might seem puzzling that many philosophers have contested Hart's view. In particular, they have objected to his claim that every legal system contains a rule of recognition. More surprisingly, these critiques span different jurisprudential schools. Positivists such as Joseph Raz, as well as natural lawyers such as Ronald Dworkin and John Finnis, have been among Hart's most vocal critics. In this essay, I would like to examine the opposition to the rule of recognition. What is objectionable about Hart's doctrine? Why deny that every legal system necessarily contains a rule setting out the criteria of legal validity? And are these objections convincing? Does the rule of recognition actually exist? This essay has five parts. In Part One, I try to state Hart's doctrine of the rule of recognition with some precision. As we will see, this task is not simple, insofar as Hart's position on this crucial topic is often frustratingly unclear. I also explore in this part whether the United States Constitution, or any of its provisions, can be considered the Hartian rule of recognition for the United States legal system. In Part Two, I attempt to detail the many roles that the rule of recognition plays within Hart's theory of law. In addition to the function that Hart explicitly assigned to it, namely, the resolution of normative uncertainty within a community, I argue that the rule of recognition, and the secondary rules more generally, also account for the law's dexterity, efficiency, normativity, continuity, persistence, supremacy, independence, identity, validity, content and existence. In Part Three, I examine three important challenges to Hart's doctrine of the rule of recognition. They are: 1) Hart's rule of recognition is under- and over-inclusive; 2) Hart cannot explain how social practices are capable of generating rules that confer powers and impose duties and hence cannot account for the normativity of law; 3) Hart cannot explain how disagreements about the criteria of legal validity that occur within actual legal systems, such as in American law, are possible. In Parts Four and Five, I address these various objections. I argue that although Hart's particular account of the rule of recognition is flawed and should be rejected, a related notion can be fashioned and should be substituted in its place. The idea, roughly, is to treat the rule of recognition as a shared plan which sets out the constitutional order of a legal system. As I try to show, understanding the rule of recognition in this new way allows the legal positivist to overcome the challenges lodged against Hart's version while still retaining the power of the original idea. (shrink)

Physicians' duties to their patients traditionally have been construed narrowly in time and scope to focus on the specific episode of care or clinical encounter. Physicians generally have had no ethical or legal duty to notify patients about new medical information discovered after a visit, notwithstanding the health care benefits to patients that might flow from receiving the information. The rule was based on the relatively high burdens that notification would impose on physicians compared with the likelihood of (...) benefits to patients. This established view, however, no longer may be appropriate in light of new physician-patient relationships and the reduced burden of patient notification using new types of health information technology. This article explores the duty to inform patients and former patients about relevant, medical developments subsequent to their episode of care. It concludes by recommending the recognition in ethics and law of a limited, ongoing duty to notify patients of significant information relevant to their health. (shrink)

This article explores how Anglo-American financial firms since the 1980s have operated and acted in an increasingly deregulated, risky, and uncertain arena. I look at these firms and their actions with a particular focus on “temporality” and requisite “emotion-rules,” where variations in emotion-rules correspond with organizational definitions of uncertainty. Firms impose specific emotion-rules, depending on national policies, official duties, and interpretations of each risk. In finance, caveat emptor (i.e., buyer or lender distrust) is an emotion-rule set in screening policies (...) and data collection for credit risks and risks of fraud by personnel, and it gives rise to actual emotions. I argue that three time-orientations are significant in creating emotion-rules. If a past, present, or a long-term future is deployed to construct a future, that creates and frames an institution’s attempts to manage uncertainty. Looking exclusively at Anglo-American corporate finance policies and strategies (often deemed the international “one best way”), six modes of certainty constructions are presented. Each is assessed against the dispositions and emotional strategies required in highly-skilled careers, in specific organizational settings. The relative influence of individual perspectives, institutional rules and general typologies of social action is assessed and found to comprise one past view, three present views, and one future-oriented perspective towards the future. Implications are outlined for emotion-rules relevant to financial careers and office. (shrink)

Sovereign is he who provides the exception.…The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition.In spring 2020, in response to the COVID-19 crisis, world leaders imposed severe restrictions on citizens’ civil, political, and economic liberties. These restrictions went beyond less controversial and less demanding social distancing measures seen in past epidemics. (...) Many states and countries imposed universal lockdowns. Lockdowns, as we define them here, require people to stay home; in some countries and places, citizens must have ad hoc licenses to... (shrink)

I summarize a conception of morality as containing a set of rules which hold ceteris paribus and which impose pro-tanto obligations. I explain two ways in which moral rules are ceteris-paribus, according to whether an exception is duty-voiding or duty-overriding. I defend the claim that moral rules are ceteris-paribus against two qualms suggested by Luke Robinson’s discussion of moral rules and against the worry that such rules are uninformative. I show that Robinson’s argument that moral rules cannot ground (...) pro-tanto obligations is unsound, because it confuses an absolute reason for an obligation with a reason for an absolute obligation, and because it overlooks the possibility that priority rules may be rules for ordering pro-tanto obligations rather than rules for eliminating contenders for the status of absolute obligation. (shrink)

Legal standards of disclosure in a variety of jurisdictions require physicians to inform patients about the likely consequences of treatment, as a condition for obtaining the patient’s consent. Such a duty to inform is special insofar as extensive disclosure of risks and potential benefits is not usually a condition for obtaining consent in non-medical transactions. -/- What could morally justify the physician’s special legal duty to inform? I argue that existing justifications have tried but failed to ground such (...) special duties directly in basic and general rights, such as autonomy rights. As an alternative to such direct justifications, I develop an indirect justification of physicians’ special duties from an argument in Kant’s political philosophy. Kant argues that pre- legal rights to freedom are the source of a duty to form a state. The state has the authority to conclusively determine what counts as “consent” in various kinds of transactions. The Kantian account can subsequently indirectly justify at least one legal standard imposing a duty to inform, the reasonable person standard, but rules out one interpretation of a competitor, the subjective standard. (shrink)

Colemanand Shapiro have recently advanced a second at- tempt to reconcile Hart’s practice theory of rules and the idea of the normativity of law; i.e., the idea that legal rules qua social rules give reasons for actions and, in some circumstances create and impose duties and obligations. Their argumentative strategy is to resort to elements in Bratman’s work on shared agency and planning, though they introduce important and substantive modifications to Bratman’s own explanation. Bratman describes his own theory as a (...) modest theory of the will where the notion of planning plays a fundamental role. Both Shapiro’s and Coleman’s application of Bratman’s planning theory of agency to an authority structure such as law is impressive, but a number of objections can be levelled, with the intention of grasping both the nature of authority structures and the normativity of law. Although I have referred to Shapiro’s and Coleman’s applica- tions as being similar to one another, the differences are sub- stantive and important. I will scrutinise both Shapiro’s and Coleman’s explanations of ‘shared agency’ and discuss the objections that can be raised against each application. (shrink)

I argue that our traditional conception of the duties imposed by human rights is unable to acknowledge the nature of many contemporary human rights violations. The traditional conception is based on a broadly deontological view according to which human rights impose primarily negative and perfect duties, and these duties are held to be specific prohibitions on certain kinds of actions . I argue that given this conception of the nature of the duties imposed by human rights, not only claims to (...) aid, but in addition, claims against many of the most serious and prevalent contemporary active harms will not count as genuine human rights claims. These harms increasingly result from extremely complex causal chains involving the behaviour of a huge number of agents, few or none of whom can be singled out as responsible for a serious harm to any specific victim. Institutional structures can have just as central a role to play in specifying and allocating responsibility for fulfilling many of the negative duties imposed by human rights as the positive duties. These structures can therefore be equally important in the realisation of both kinds of rights. Before the necessary institutional reforms have taken place, both kinds of rights are equally genuine, and ground the imperative of justice to reform existing social institutions. (shrink)

A controversy in political philosophy and applied ethics concerns the validity of duty‐imposing powers, that is, rights entitling one person to impose new duties on others without their consent. Many philosophers have criticized as unplausible any such moral right, in particular that of appropriating private property unilaterally. Some, finding duty‐imposing powers weird, unfamiliar or baseless, have argued that principles of justified acquisition should be rejected; others have required them to satisfy exacting criteria. I investigate the many (...) ways in which we regularly impose duties on one another without prior consent. I show that doing so is not weird, and I offer criteria which demarcate the reasonable from the worrisome aspects of duty‐imposing powers. (shrink)

Some legal theorists deny that states can conceivably act extra-legally, in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen, and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and, ultimately, contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Traditionally legal theorists, whenever engaged in controversy, have agreed on one point: legal norms are par excellence rules which impose obligations. The author examines this assumption, which from another perspective (that of constitutional law, for instance) appears less obvious. In fact, constitutional rules are commoniy empowering norms, norms which do not create duties but powers. To this objection many theorists would reply that empowering rules are incomplete and that they are to be understood as parts of duty‐creating rules. A (...) different position from this traditional stance is that defended in Kelsen's later writings, according to which the fundamental type of norm is the empowering norm. The author discusses Kelsen's three theories on the “ideal form” or structure of the legal norm, with special attention to the third of these, the empowerment theory. (shrink)

What does it take for a corporation to act in a socially responsible manner? It would seem that respecting the fiscal duties imposed by the state should be high on the list. Compared to standard accounts of corporate social responsibility, this requirement seems relatively weak. The present paper argues that such a minimalist CSR turns out to be quite demanding. More specifically, I argue that for one particular sector, namely the tax planning industry, it would be utopian to expect its (...) members to adopt even such a minimalist CSR. Given the business model of the tax planning industry and the motivations that flow from it, state intervention and enforceable rules are required to ensure socially responsible corporate conduct in this industry. (shrink)

This is an attempt to understand the ethics of leonard nelson as dealing with some of the same problems arising from kant's moral philosophy as have concerned the rule utilitarians in anglo-American philosophy. In particular, They share the attempt to provide a rationale for specific duties in terms of ends to be achieved, And they try to correct what they see as excessive rigidity and formalism in the kantian imperatives.

The paper criticises a number of accounts of freedom, including those which analyse freedom in terms of affording individuals ever widening opportunities, those which mistake liberties for rights and those which identify freedoms with duties imposed on others. All these inflated notions of freedom are liable to produce a shrinkage of of freedom in its basic sense of referring to areas of life in which there are rules preventing others from interfering with individuals or groups in doing things which are (...) feasible for them. (shrink)

I argue that the duty of confidentiality is relative, not absolute; and that it is primarily a matter for the professional judgment of the reflective health practitioner to determine in the particular case whether competing public interests (or other compelling reasons) override that duty. I have supported that account with an analysis of medical practice as a recourse role and with an account of law that emphasises not only its duty‐imposing character but also, and crucially, an (...) embedded liberty to depart from the plain requirements of a primary legal rule where in the conscientious judgment of the addressee of that law, there is ‘damn good reason’ to do so. This account of the moral nullification of law at the outer limits appears to be descriptively accurate over a wide range of law and normatively appealing not only to democratic citizens but also to professionals such as doctors and lawyers whose role involves testing the law on moral grounds and who should be ready to do so, if but only if, they believe in the good faith exercise of professional judgment that the outcome mandated by the literal application of the legal rule is inconsistent with the moral mission of their role. The argument is illustrated with cases from American and English courts which, perhaps, render plausible the otherwise paradoxical notion that the law itself admits of departures from the legal rules. (shrink)

Modern contract law is characterized by a certain kind of unity and multiplicity. On the one hand, it establishes fundamental principles that apply to all contracts in general. But at the same time, it specifies further principles and rules for particular kinds of contracts or transaction-types that mark out their distinctive features, incidents and effects. Clearly, a viable theory of contract law should be able to provide a suitable account of both aspects. The central critical contention of The Choice Theory (...) of Contracts is that all prior approaches, in particular rights-based theories, have failed to do so. Indeed, Dagan and Heller argue that only a theory that explains the settled rules of contract law as teleologically oriented toward facilitating individuals’ pursuit of their different substantive goods, and thus as primarily power-conferring in this particularly robust sense, can provide the needed account. Such a theory, they believe, would be not only interpretatively accurate with respect to the actual law but also fully acceptable as a liberal view of contract. This Article challenges the core contentions of choice theory, suggesting why it may be unable to meet its own goal of explaining how contract law coherently specifies and integrates the general and specific dimensions of enforceable agreements. The Article looks into basic contract doctrines in order to specify a general conception of the contractual relation that can meet this desideratum and it sketches how, beginning with that conception, contract law unfolds a rich multiplicity of transaction-types. The resulting view is liberal but rights-based rather than teleological, and it proposes an alternative understanding of how the rules of contract law are power-conferring as well as duty-imposing. (shrink)

This paper focuses on the issue of justice as a challenge facing business and society. I advance a simple deductive argument based on two premises. The first emerges out of theories of justice and holds that fairness, as a foundational basis for justice, demands impartiality or the avoidance of bias. The second emerges out of fiduciary law and holds that the duty of loyalty owed by managers to serve the interests of investors is fundamentally partial or biased. The conclusion (...) is the troubling fact that the fiduciary duty of loyalty owed by managers to serve the interests of investors appears to be incompatible with the demands of justice. Having presented this, I describe the impartiality tools of Rawls’ veil of ignorance and Adam Smith’s impartial spectator and discuss how these might be applied in this context. I speculate that while Smith’s impartial spectator is absolutely incommensurable with managers’ fiduciary duty of loyalty, Rawls’ veil of ignorance might be used to imagine a synthesis between this duty of loyalty and the impartiality demands of justice – in theory at least. And finally, as a parting shot, I wonder whether the real “Leadership Challenge that Matters” isn’t the gap between theory and reality. (shrink)

The article criticizes arguments by Henry Shue, Cass Sunstein, and Stephen Holmes that rights entail enforceable positive duties.

What are our responsibilities in the face of injustice? How far should we go to fight it? Many would argue that as long as a state is nearly just, citizens have a moral duty to obey the law. Proponents of civil disobedience generally hold that, given this moral duty, a person needs a solid justification to break the law. But activists from Henry David Thoreau and Mohandas Gandhi to the Movement for Black Lives have long recognized that there (...) are times when, rather than having a duty to obey the law, we have a duty to disobey it. -/- Taking seriously the history of this activism, A Duty to Resist wrestles with the problem of political obligation in real world societies that harbor injustice. Candice Delmas argues that the duty of justice, the principle of fairness, the Samaritan duty, and political association impose responsibility to resist under conditions of injustice. We must expand political obligation to include a duty to resist unjust laws and social conditions even in legitimate states. -/- For Delmas, this duty to resist demands principled disobedience, and such disobedience need not always be civil. At times, covert, violent, evasive, or offensive acts of lawbreaking can be justified, even required. Delmas defends the viability and necessity of illegal assistance to undocumented migrants, leaks of classified information, distributed denial-of-service (DDoS) attacks, sabotage, armed self-defense, guerrilla art, and other modes of resistance. There are limits: principle alone does not justify law breaking. But uncivil disobedience can sometimes be not only permissible but required in the effort to resist injustice. (shrink)

Scholars who favor shareholder primacy usually claim either that managers should not fulfill corporate duties of beneficence or that, if they are required to fulfill them, they do so by going against their obligations to shareholders. Distinguishing between structurally different types of duties of beneficence and recognizing the full force of the normative demands imposed on managers reveal that this view needs to be qualified. Although it is correct to think that managers, when acting on behalf of shareholders, are not (...) required to fulfill wide duties of charity, they are nevertheless required to fulfill a variety of narrow duties of beneficence. What is more, the obligation to fulfill these duties arises precisely because they are acting on behalf of shareholders. As such, this article 1) refines our understanding of the duties of corporate beneficence and 2) helps to identify which duties of beneficence are imposed on managers when they are acting on behalf of shareholders. (shrink)

In World Poverty and Human Rights, Thomas Pogge argues that the global rich have a duty to eradicate severe poverty in the world. The novelty of Pogges approach is to present this demand as stemming from basic commands which are negative rather than positive in nature: the global rich have an obligation to eradicate the radical poverty of the global poor not because of a norm of beneficence asking them to help those in need when they can at little (...) cost to themselves, but because of their having violated a principle of justice not to unduly harm others by imposing on them a coercive global order that makes their access to the objects of their human right to subsistence insecure. In this paper, I claim that although Pogge is right in arguing that negative duties are crucial in an account of global justice, he is wrong in saying that they are the only ones that are crucial. Harming the global poor by causing their poverty provides a sufficient but not a necessary condition for the global rich to have a duty of justice to assist them. After engaging in a critical analysis of Pogges argument, I conclude by suggesting the need for a robust conception of cosmopolitan solidarity that includes positive duties of assistance which are not mere duties of charity, but enforceable ones of justice. (shrink)

The defense of necessity, also known as the “choice of evils,” reflects popular moral intuitions and common sense: sometimes, breaking the rules is the right—indeed, the only—thing to do in order to avoid a greater evil. Citing a classic example, mountain climbers may break into a cabin to wait out a deadly snow storm and appropriate the owner’s provisions because their property violations are a lesser evil compared to the loss of life. At the same time, this defense contradicts the (...) fundamental principles of criminal responsibility in that it authorizes violation of rights of innocent bystanders. By allowing the mountain climbers to override the property rights of the cabin owner, the defense effectively forbids the cabin owner to use force in response—a different rule would perpetuate violence. This outcome is at odds with the basic criminal law doctrines. There is no general duty to rescue in Anglo-American law. Yet, by forbidding the cabin owner to use force, the defense of necessity essentially imposes on him the duty to forego his interests in favor of those of the mountain climbers. The paper explores the origins and boundaries of the defense of necessity. It argues that the existing public and private theories of necessity are unsatisfactory and concludes that a viable theory of necessity should be able to explain why it is sometimes permissible to override individual rights of citizens without their consent or fault. (shrink)

Clinicians and health researchers frequently encounter opportunities to rescue people. Rescue cases can generate a moral duty to aid those in peril. As such, bioethicists have leveraged a duty to rescue for a variety of purposes. Yet, despite its broad application, the duty to rescue is under-analyzed. In this paper, we assess the state of theorizing about the duty to rescue. There are large gaps in bioethicists’ understanding of the force, scope, and justification of the two (...) most cited duties to rescue—the individual duty of easy rescue and the institutional rule of rescue. We argue that the duty of easy rescue faces unresolved challenges regarding its force and scope, and the rule of rescue is indefensible. If the duty to rescue is to help solve ethical problems, these theoretical gaps must be addressed. We identify two further conceptions of the duty to rescue that have received less attention—an institutional duty of easy rescue and the professional duty to rescue. Both provide guidance in addressing force and scope concerns and, thereby, traction in answering the outstanding problems with the duty to rescue. We conclude by proposing and propose research priorities for developing accounts of duties to rescue in bioethics. (shrink)

This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by (...) the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose. (shrink)

This article addresses the question of whether the arguments for a duty to die given by John Hardwig, the most prominent philosophical advocate of such a duty, are sound. Hardwig believes that the duty to die is relatively widespread among those with burdensome illnesses, dependencies, or medical conditions. I argue that although there are rare circumstances in which individuals have a duty to die, the situations Hardwig describes are not among these.After reconstructing Hardwig's argument for such (...) a duty, highlighting his central premise that ill, dependent, or aged individuals can impose unfair burdens upon others by continuing to live, I clarify precisely what Hardwig intends by his thesis that many of us have a duty to die. I then show that an important disanalogy exists between an uncontroversial example in which an individual has a duty to die and the situations in which Hardwig proposes individuals have a duty to die. More specifically, in situations where a duty to die exists, an individual's having a duty to die logically implies that those she burdens have a right to kill that individual in self-defense. I then suggest that the burdens that ill, dependent, or aged individuals impose on their families, loved ones, or caregivers do not constitute the kind of threat that warrants the latter killing the former in self-defense. Hence, the duty to die is much rarer than Hardwig supposes. (shrink)

Both trolleys and war leave innocent victims to suffer death and injury. Trolley problems accounting for the injured, and not only the dead, tease out intuitions about liability that enhance our understanding of the obligation to provide compensation and medical care to civilian victims of war. Like many trolley victims, civilians in war may suffer justifiable, excusable, or negligent harms that demand compensation. Chief among these is collateral harm befalling civilians. Collateral harm is endemic to war and comprises permissible but (...) unavoidable death or injury following necessary and proportionate military operations. Although state armies sometimes offer condolence payments for civilian death, injury, and property loss, they deny liability. Instead, they use compensation to enhance counterinsurgency efforts and assuage feelings of agent regret. As part of the medical rules of eligibility, Coalition forces in Iraq and Afghanistan also provided medical care to victims of collateral harm. However, they denied care to similarly sick or injured civilians. While compensation is often justified to cure the harm civilians suffer, the differential use of medical resources is not. Rather, medical care remains subject to the principle of beneficence and medical need. The duty to provide civilian healthcare in war, particularly in wars of humanitarian intervention, is far-reaching and imposes significant costs that military and medical ethics are yet to recognize. (shrink)

This paper evaluates an argument for immigration restrictions that appeals to the costs that immigration imposes on the citizens of a recipient state. According to this argument, citizens have associative duties to protect each other’s interests, immigration can damage these interests in certain cases, and the associative duties between compatriots justify immigration restrictions in these cases. Call this: the partiality argument for immigration restrictions. I argue that the partiality argument is unsound. Immigration restrictions violate negative duties to refrain from interfering (...) with people’s liberties and these duties silence compatriots’ associative duties to one another. Furthermore, I argue that compatriots lack associative duties to one another in virtue of the fact that the relationships between compatriots reliably cause injustice to outsiders. (shrink)

Desde la separación estricta de ética y derecho, la Rechtslehre kantiana sostiene que es la ética la que exige al sujeto que haga suya la máxima de actuar conforme al derecho. En la misma línea defiende J. F. Kervégan que los sujetos habríamos de reconocer como un deber ético el respeto a las normas jurídicas, sin que esto quiera decir que el derecho dependa de la ética, pues en estricto derecho no podría tenerse a la intención de conciencia como móvil (...) de la acción justa. Lo que el derecho regula y juzga son las acciones exteriores, y también el móvil tiene que es el poder coercitivo, que el derecho, a diferencia de la ética, tiene la facultad de imponer a la sociedad a fin de que cada miembro de ella en su acción externa evite por su propio interés perjudicar la libertad de cualquier otro. Por esta unicidad del móvil sostiene Kant que derecho y facultad de coaccionar significan una y la misma cosa. El formalismo de su planteamiento impide a Kant entrar en la complejidad del entramado de derechos y deberes, de bienes y cargas, que hace de la justicia distributiva el verdadero objeto del arte jurídico. Y por su externalización estricta del derecho reduce al jurista a la observancia de los textos, ignora el procedimiento de la controversia judicial, excluye la equidad como ajena al derecho, y convierte al derecho en el gendarme de la moral . En cuanto a la intención interior, una cosa es que las leyes no puedan motivar el albedrío por la conciencia de la obligación, y otra que si derecho y coacción significaran lo mismo no habría diferencia entre cumplir la ley para evitar el castigo o eludir el castigo burlando la ley -opción ésta que a muchos resultaría más provechosa, dado que el poder del Estado es incapaz de vigilar en cada momento a cada sujeto, y que los vigilantes mismos necesitan ser vigilados, ad infinitum. Tras una breve alusión a los conocidos argumentos de Platón, Hobbes y Montesquieu sobre la obediencia voluntaria como el otro móvil del derecho, no menos necesario que la coerción, se recuerda que también el profesor Kervégan ha defendido en otro contexto que un orden jurídico cualquiera tiene dos componentes irreductibles entre sí: el sistema de normas que define lo que debe ser y la decisión que conforma el ser al deber-ser. Finalmente, en el derecho interestatal no puede Kant invocar la facultad de coaccionar, que deja de significar lo mismo que "derecho" porque, al no haber ninguna fuerza superior a la soberanía de los Estados, el pacto durará hasta que alguno de ellos lo incumpla por su libre y soberana decisión. From a firm distinction between ethics and right, the Kantian Rechtslehre holds that the demand to adopt the maxim to act according to the right is an ethical demand. Also J.F. Kervégan defends that individuals should recognize the ethical obligation to respect juridical rules, but this does not mean that right depends on ethics, because, in strict right, internal disposition or intention could not be considered as motive for the rightful action. Law regulates and judges the external actions and also the motive has to be external as it is external the coercion that right -but not ethics- can impose on society so that each member of it, for his own interest, does not damage in his external agency any other member's freedom. Because of this only one motive, Kant declares that right and coercion's capacity signify the same thing. His formalist position stops him to go into the complex network of rights and duties, of advantages and burdens, which makes distributive justice the true subject of juridical art. Moreover, because of the strict externals of the law Kant is unaware of the juridical controversy, reduces the jurist to the observance of texts, ejects the equity as not right's own, and risks to transform the right in the gendarme of morals . With regard to intention, one thing is that in strict law the internal disposition can not be deemed as the motive, and other thing is that if law and coercion's capacity signify the same thing, there is no difference between obeing the law to avoide the punishment, or avoiding the punishment in breaking the law; then, the last option would be profitable for too many people, since the coercion power is not able to survey in every moment each individual, and the watchmen themselves need to be watched over and so on. After a short mention of the well known Plato, Hobbes and Montesquieu's arguments about the voluntary obedience as the other motive of the strict right, not less necessary than coercion, we remember that J. F. Kervégan also defended in another context that any juridical order has two irreducible le système des normes générales qui définissent ce qui doit être, et la décision qui conforme l'être au devoir-être. Finally, in the interstates right, Kant can not maintain that right and capacity of coercion mean the same thing, because there is not any force over the sovereignty of the States, and therefore the contract will last till one of them breaks it by its free and sovereign decision. (shrink)

Clinicians and researchers can often rescue patients or research participants from serious harms. Indeed, they often have a duty to do so—a duty to rescue. Duties to rescue are frequently discussed in the medical ethics literature, but according to Tina Rulli and Joseph Millum they are under-theorised and more problematic than is normally acknowledged. Rulli and Millum outline two widely discussed conceptions of rescue duties: a so-called duty of easy rescue, applying to all moral agents (including healthcare (...) professionals), and the rule of rescue, applying specifically to institutions. They raise concerns about both. (shrink)

This monograph presents Azzouni’s new approach to the rule-following paradox. His solution leaves intact an isolated individual’s capacity to follow rules, and it simultaneously avoids replacing the truth conditions for meaning-talk with mere assertability conditions for that talk. Kripke’s influential version of Wittgenstein’s rule-following paradox—and Wittgenstein’s views more generally—on the contrary, make rule-following practices and assertions about those practices subject to community norms without which they lose their cogency. Azzouni summarizes and develops Kripke’s original version of Wittgenstein’s (...) rule-following paradox to make salient the linchpin assumptions of the paradox. By doing so, Azzouni reveals how compelling Kripke’s earlier work on the paradox was. Objections raised over the years by Fodor, Forbes Ginsborg, Goldfarb, Tait, Wright, and many others, are all shown to fail. No straight solution can be made to work. Azzouni illustrates this in detail by showing that a popular family of straight solutions due to Lewis and refined by Williams, “reference magnetism,” fail as well. And yet an overlooked sceptical solution is still available in logical space. Azzouni describes a series of “disposition-meaning” private languages that he shows can be successfully used by a population of speakers to communicate with one another despite their ideolectical character. The same sorts of languages enable solitary “Robinson Crusoes” to survive and flourish in their island habitats. These languages—sufficiently refined—have the same properties normal human languages have; and this is the key to solving the rule-following paradox without sacrificing the individual’s authority over her self-imposed rules or her ability to follow those rules. Azzouni concludes this unusual monograph by uncovering a striking resemblance between the rule-following paradox and Hume’s problem of induction: he shows the rule-following paradox to be a corollary of Hume’s problem that arises when the problem of induction is applied to an individual’s own abilities to follow rules. (shrink)

Many political theorists argue that immigration restrictions are unjust and defend broadly open borders. In this paper, I examine the implications of this view for individual conduct. In particular, I argue that the citizens of states that enforce unjust immigration restrictions have duties to disobey certain immigration laws. States conscript their citizens to help enforce immigration law by imposing legal duties on these citizens to monitor, report, and refrain from interacting with unauthorized migrants. If an ideal of open borders (...) is true, these laws are unjust. Furthermore, if citizens comply with their legal duties, they contribute to violating the rights of migrants. We are obligated to refrain from contributing to rights-violations. So, citizens are obligated to disobey immigration laws. I defend the moral requirement to disobey immigration laws against the objection that disobedience to the law is excessively risky and the objection that citizens have political obligations to obey the law. (shrink)

The agency objection to applying distributive justice globally is that principles of distributive justice need to apply to the behaviour of a special kind of institutional agent of distributive justice because of the special powers of that agent. No such agent exists capable of configuring cooperative arrangements between all persons globally, and so distributive justice does not apply globally. One response to institutional views of this kind is that they do not rule out Natural Duties of Justice that fall (...) on all of us to bring about institutional agencies capable of global distributive justice. In this article I argue that this move presupposes a particular, teleological, conception of justice whilst institutional accounts most plausibly rest on a non-teleological one. I provide an argument for favouring the non-teleological conception. I also show why alternative ways of arguing for global Natural Duties of Justice do not get around this controversy. The debate is at the level of presuppositions about justice, and relying on a partisan conception is question begging. (shrink)

The grip and forcefulness of the demands that love imposes upon us resemble the forcefulness and grip of moral obligation. In cases of both kinds, we feel that we are not free to do as we please. It is a mistake, however, to presume that the requirements of love and duty are of the same kind or have the same source.

Clinicians have good moral and professional reasons to contribute to pragmatic clinical trials (PCTs). We argue that clinicians have a defeasible duty to participate in this research that takes place in usual care settings and does not involve substantive deviation from their ordinary care practices. However, a variety of countervailing reasons may excuse clinicians from this duty in particular cases. Yet because there is a moral default in favor of participating, clinicians who wish to opt out of this (...) research must justify their refusal. Reasons to refuse include that the trial is badly designed in some way, that the trial activities will violate the clinician’s conscience, or that the trial will impose excessive burdens on the clinician. (shrink)

American criminal law reflects the absence of any general duty of Good Samaritanism. Nonetheless, there are some circumstances in which it imposes affirmative duties to aid others. In those circumstances, however, the duty to aid is canceled whenever aiding subjects the actor to a certain level of risk or sacrifice, a level that can be less than the risk or sacrifice faced by the beneficiary if not aided. In this article, I demonstrate that this approach to limiting affirmative (...) duties to aid encounters the same problem of moral arbitrariness as does a moral catastrophe override of deontological side-constraints. (shrink)

Private law is generally formulated in terms of rightduty relation at all but on a or liability” relation. A primary-liability claim is not a claim arising from the breach of a strict-liability duty. The recognition of primary-liability claims does not involve skepticism about duties or rules or legal relations and it is consistent with the analysis of private law in terms of corrective justice.