In Wilkinson v. Kitzinger, the petitioner (Susan Wilkinson) sought a declaration of her marital status, following her marriage to Celia Kitzinger in British Columbia, Canada in August 2003. The High Court refused the application, finding that their valid Canadian marriage is, in United Kingdom law, a civil partnership. In this note, I focus on Sir Mark Potter’s adjudication of the human rights issues under Articles 8, 12 and 14 of the European Convention on Human Rights (E.C.H.R.), highlighting his restatement of (...) the ideology of the ‹traditional’ family as natural, normative and desirable. I argue that this case shows that the exclusion of same sex couples from marriage is a feminist issue, because denying same sex couples access to marriage works to sediment patriarchal ideas and re-inscribe gender roles within the family. (shrink)

This influential book makes sense of abstract debates about the nature of law and the rule of law by situating them in the real-world context of apartheid-era South Africa. The new edition examines the transformation in South Africa since the end of apartheid, and the shift in debates surrounding the rule of law post 9/11.

Two hard cases have generated controversy regarding the application of the principle of double effect in recent years. As regards the first, the case of the conjoined twins of Malta, there has been considerable convergence: most natural law ethicists seem to agree that separation of the twins was morally permissible. By contrast, the so-called “Phoenix case,” involving an abortion at a Catholic hospital for a woman with pulmonary arterial hypertension, has become a touchstone of disagreement between defenders of (...) the so-called “new” natural law theory, and more “traditional” Thomists. I argue in this essay that, contrary to widespread opinion, the two cases were alike in the following respect: in neither need the principal agents have intended the death of anyone. (shrink)

Transitive proxy voting (or "liquid democracy") is a novel form of collective decision making, often framed as an attractive hybrid of direct and representative democracy. Although the ideas behind liquid democracy have garnered widespread support, there have been relatively few attempts to model it formally. This paper makes three main contributions. First, it proposes a new social choice-theoretic model of liquid democracy, which is distinguished by taking a richer formal perspective on the process by which a voter chooses a proxy. (...) Second, it examines the model from an axiomatic perspective, proving (a) a proxy vote analogue of May's Theorem and (b) an impossibility result concerning monotonicity properties in a proxy vote setting. Third, it explores the topic of manipulation in transitive proxy votes. Two forms of manipulation specific to the proxy vote setting are defined, and it is shown that manipulation occurs in strictly more cases in proxy votes than in classical votes. (shrink)

The determination of death by neurological criteria—“brain death”—has long been legally established as death in all U.S. jurisdictions. Moreover, the consequences of determining brain death have been clear. Except for organ donation and in a few rare and narrow cases, clinicians withdraw physiological support shortly after determining brain death. Until recently, there has been almost zero action in U.S. legislatures, courts, or agencies either to eliminate or to change the legal status of brain death. Despite ongoing academic debates, the (...) law concerning brain death has remained stable for decades. However, since the Jahi McMath case in 2013, this legal certainty has been increasingly challenged. Over the past five years, more families have been emboldened to translate their concerns into legal claims challenging traditional brain death rules. While novel, these claims are not frivolous. Therefore, it is important to understand them so that we can address them most effectively. (shrink)

Much work on legal knowledge systems treats legal reasoning as arguments that lead from a description of the law and the facts of a case, to the legal conclusion for the case. The reasoning steps of the inference engine parallel the logical steps by means of which the legal conclusion is derived from the factual and legal premises. In short, the relation between the input and the output of a legal inference engine is a logical one. The truth of the (...) conclusion only depends on the premises, and is independent of the argument that leads to the conclusion.This paper opposes the logical approach, and defends a procedural approach to legal reasoning. Legal conclusions are not true or false independent of the reasoning process that ended in these conclusions. In critical cases this reasoning process consists of an adversarial procedure in which several parties are involved. The course of the argument determines whether the conclusion is true or false. The phenomenon of hard cases is used to demonstrate this essential procedural nature of legal reasoning. (shrink)

The Toulmin model has been proved useful in law and argumentation theory. This model describes the basic process in justifying a claim, which comprises six elements, i.e., claim (C), data (D), warrant (W), backing (B), qualifier (Q), and rebuttal (R). Specifically, in justifying a claim, one must put forward ‘data’ and a ‘warrant’, whereas the latter is authorized by ‘backing’. The force of the ‘claim’ being justified is represented by the ‘qualifier’, and the condition under which the claim cannot be (...) justified is represented as the ‘rebuttal’. To further improve the model, (Goodnight, Informal Logic 15:41–52, 1993) points out that the selection of a backing needs justification, which he calls legitimation justification. However, how such justification is constituted has not yet been clarified. To identify legitimation justification, we separate it into two parts. One justifies a backing’s eligibility (legitimation justification 1 ; LJ 1 ); the other justifies its superiority over other eligible backings (legitimation justification 2 ; LJ 2 ). In this paper, we focus on LJ 1 and apply it to the legal justification (of judgements) in hard cases for illustration purposes. We submit that LJ 1 refers to the justification of the legal interpretation of a norm by its backing, which can be further separated into several orderable subjustifications. Taking the subjustification of a norm’s existence as an example, we show how it would be influenced by different positions in the philosophy of law. Taking the position of the theory of natural law, such subjustification is presented and evaluated. This paper aims not only to inform ongoing theoretical efforts to apply the Toulmin model in the legal field, but it also seeks to clarify the process in the justification of legal judgments in hard cases. It also offers background information for the possible construction of related AI systems. In our future work, LJ 2 and other subjustifications of LJ 1 will be discussed. (shrink)

Rights have two properties which prima facie appear to be inconsistent. The first is that they are conditional in the sense that one some occasions it is always justifiable for someone to act in a way which appears to be inconsistent with someone else's rights, such as when the defence of necessity applies. The second is that rights are indefeasible in the sense that they are not subject to being defeated our outweighed by utilitarian or policy considerations. If we view (...) rules and the rights which they establish as being subject to a ceteris paribus clause, the form of which generates out the exceptions, the conditionality of rights becomes reconcilable with their nondefeasibility. Such a view of rules and rights would entail that the goals of the law and their orderings be considered as a part of the law. When so viewed, propositions about goals and their orderings become legitimate premises for legal reasoning, furnishing solutions to hard cases in the law of torts, without resort to balancing of interests or judicial discretion. (shrink)

This article presents a sociological perspective that suggests that technology should be seen as a means for groups to retain or rearrange social relations. Claiming, first, that the sociotechnical systems approach in technology-and-society studies often tend to bring out harmony and cooperation as an ideal and, second, that central social construc tivists tend to interpret closure and stabilization processes in terms of consensus, this article, instead, argues that technology should be regarded as the outcome of conflicting interests and ideas. To (...) make the perspective plausible, a number of analytic concepts are put forth and illustrated, some case studies are reinterpreted in conflict language, and a few tentative research hypotheses are formulated. (shrink)

How can it be that the fiduciary relationship has trust at its core if trust is neither a necessary nor a sufficient condition for the existence of such a relationship? My aim in this article is to make some arguments that I think might assist in solving that puzzle. First, I argue that fiduciary relationships are likely to be characterized by relatively ‘thick’ interpersonal trust. Secondly, I argue that moral duties referring to trust play a role in the justification of (...) fiduciary duties, but that the role of trust in the underlying moral duties is contingent, yielding only a contingent connection between trust and fiduciary duties. Finally, I argue that a goal of fiduciary law should be enabling and supporting trusting relationships, but that this goal should be viewed within a broader liberal outlook according to which fiduciary law also enables and supports relationships on terms of detachment. (shrink)

Ronald Dworkin argues that disagreement in hard cases is ‘theoretical’ rather than empirical and of central importance to our understanding of law, showing ‘plain fact’ theories such as H. L. A. Hart’s sophisticated legal positivism to be false. The argument from theoretical disagreement targets positivism’s commitment to idea that the criteria a norm must meet to be valid in a given jurisdiction are constituted by a practice of convergent behavior by legal officials. The ATD suggests that in (...) class='Hi'>hard cases there is no such pattern of convergent behavior. Positivists are divided over the force of the ATD. Much of this disagreement over the force of the ATD can be understood as disagreement over just what it is that legal officials disagreeing ‘theoretically’ are disagreeing about. Once the scope of empirical and theoretical disagreements are more accurately plotted, we will see that the actual disagreements that occur in hard cases are not ones which threaten a deeper and pervasive pattern of convergent behavior, one which focuses not upon rules specifying criteria of legal validity, but instead upon broad processes for making, interpreting, and applying law. Such an account remains positivist, relying on the social fact that there is such a consensus, but allows for considerable disagreement among legal officials deciding cases within such procedures. (shrink)

Charity Law and the Liberal State considers questions relating to state action and public discourse that are raised by the law of charity. Informed by liberal philosophical commitments and of interest to both charity lawyers and political philosophers, it addresses themes and topics such as: the justifiability of the state's non-neutral promotion of charitable purposes; the role of altruism in charity law; charity law, the tax system and the demands of distributive justice; the proper treatment of religious and political purposes (...) in charity law; and the appropriate response of the liberal state to discrimination in the pursuit of charitable purposes. (shrink)

The law and policy applicable to the not-for-profit sector is of growing importance around the world. In this book, legal experts address fundamental questions about not-for-profit law from a range of theoretical and comparative perspectives. The essays provide scholarly analysis of not-for-profit law, organised around four themes: Politics, in the broader sense of living as a community, and the narrower sense of political power; Charity, how it is defined and changes in its meaning over time; Taxation, including the rationale for (...) government support of the sector through the tax system; Regulation, which is of increasing significance as governments establish increasingly complex forms of regulation of not-for-profit activity. The fundamental aim of the book is to deepen our understanding of not-for-profit law and of the rationales and modes of government support for the not-for-profit sector. (shrink)

John Locke is generally seen as an unequivocal defender of private property. However, taken normatively, certain aspects of his argument leave room for interesting loopholes with relevance to some of today’s social and political crises. This paper focuses largely on the spoilage proviso—in which Locke warns against appropriating more than one can make use of—and its possible application to abandoned buildings and the potential for legitimate productive use to be made of them by people other than the legal owner. Using (...) two case studies in which squatters have actively reversed the dereliction of abandoned buildings, this article aims to build a defence of certain types of squatting based on the limitations Locke has placed on the appropriation and the retention of property. (shrink)

Trust may be an important organizing idea when thinking about law. However, if trust is to be deployed usefully as an organizing idea when thinking about law, work must be done to understand what trust is, what it does and what effect it has. This article explores one aspect of interpersonal trust that may be relevant when thinking about law. The article considers how one person might manifest trust to another. In so doing, the article considers types of action that (...) are ill- and well-suited to manifesting trust. It then considers why it might be important to manifest trust. Finally, the article suggests some lines of future inquiry by pointing to how the phenomenology of trust might be significant when assessing the sorts of claims about trust that lawyers typically make. (shrink)

In the case of Jean-Marie Guyau, declared humanist and sociologist, there is the debt of a French thinker to English thought, ...

The fundaments of Dworkin's third theory of law include two claims: (1) judges in legal systems like that of the US lack lawmaking discretion in hard cases; and (2) the content of the law in such legal systems is determined by moral norms that show existing legal practice in its morally best light. In this essay, I argue that these claims are in tension with each other and with the uncontroversial fact, acknowledged by Dworkin, that the highest court (...) with jurisdiction over an issue of law has final authority to determine the content of the law with respect to that issue. In addition, I suggest that Dworkin's third theory is more fruitfully construed partly as an analysis of a normatively thick concept of law and partly as a descriptively functional explanation of the content of the law. (shrink)

This article presents some arguments against the persistence of the common law freedom to discriminate, in the disposition of property by gift or trust, whether inter vivos or testamentary, on a range of grounds like sex, race and religion. Broadly, two claims are defended. The first is that the elimination of discriminatory gifts and trusts is possible, within the bounds set by orthodox methods of common law reasoning, at least in jurisdictions where a non-discrimination norm operates at the constitutional level. (...) The second is that eliminating discriminatory gifts and trusts is desirable even from a liberal perspective that regards personal autonomy as a great value, once the function of the law of gifts and trusts as a set of power-conferring rules is brought into view. (shrink)

Studying via the Internet using information tools is a common activity for students in higher education. With students accessing their subject material via the Internet, studies have shown that students have difficulty understanding the complete purpose of an assessment which leads to poor information search practices. The selection of relevant information for particular learning assessments is the topic of this paper as it describes a case study that focuses on the information tool use of a small group of participants and (...) is a continuation of similar research studies. The study and discussed research findings point to the benefit of students use of a visualisation tool to provide relevant learning cues and to transition to improved engagement with online assessment. (shrink)

There is an old and powerful argument for the claim that divine foreknowledge is incompatible with the freedom to do otherwise. A recent response to this argument, sometimes called the “dependence response,” centers around the claim that God’s relevant past beliefs depend on the relevant agent’s current or future behavior in a certain way. This paper offers a new argument for the dependence response, one that revolves around different cases of time travel. Somewhat serendipitously, the argument also paves the (...) way for a new reply to a compelling objection to the dependence response, the challenge from prepunishment. But perhaps not so serendipitously, the argument also renders the dependence response incompatible with certain views of providence. (shrink)

Purpose This study aims to explore the complexities of methodological, ethical and emotional challenges of studying sensitive and vulnerable communities online from the perspective of simultaneously being a researcher and a research subject. The point of departure for these explorations consists of the author’s past and ongoing studies of the role and use of a closed grief support group on Facebook for bereaved parents – a community of which the author is a member. The aim is not to provide ready (...) solutions for “how to do ethics,” but rather to contribute to the collective and ongoing work initiated by the Association of Internet Researchers, among others, and to recognize the necessity of ethical pluralism, cross-cultural awareness and an interdisciplinary approach. Design/methodology/approach This is an explorative study, drawing on an ethnographic case study. The case serves as a point of departure for discussing the complexities of methodological, ethical and emotional challenges of studying sensitive and vulnerable communities online from the perspective of simultaneously being a researcher and a research subject. Findings Being a researcher and a research subject rolled into one, as it were, presents both opportunities and challenges. To conduct responsible research from both these perspectives pose high demands on the researchers’ ethical as well as emotional capacities and responsibilities. Hopes and expectancies of the community under study might put the researcher into a dilemma, ethical aspects of anonymity and informed consent might have to be reconsidered as well as emotional challenges of engaging in and with sensitive research, all of which makes for a complex balancing act. Ethics and methods are inextricably intertwined, so are the emotional challenges of conducting sensitive research intermingled. Studying vulnerable individuals and closed communities online highlights the necessity for case and context sensitive research and for flexibility, adaptivity and mindfulness of the researcher. It also highlights the importance of discussing and questioning theoretical, methodological and ethical developments for studying everyday life practices online. Originality/value The challenges encountered in this case study contribute to the experientially grounded approach to research ethics emphasized in AoIR’s ethics guidelines. This case offers an opportunity to explore and discuss complex issues arising from the researcher’s insider position in a closed group devoted to the sensitive topic of supporting bereaved parents. Further, it highlights the necessity for research to be case and context sensitive as well as for the researcher and the research design to be flexible and adaptive. Research on vulnerable communities also heightens the demands of ethical responsibility of the researcher and the research process. (shrink)

This book addresses the problem of fully explaining Socrates’ motives for philosophic interlocution in Plato’s dialogues. Why, for instance, does Socrates talk to many philosophically immature and seemingly incapable interlocutors? Are his motives in these cases moral, prudential, erotic, pedagogic, or intellectual? In any one case, can Socrates’ reasons for engaging an unlikely interlocutor be explained fully on the grounds of intellectual self-interest? Or does his activity, including his self-presentation and staging of his death, require additional motives for adequate (...) explanation? Finally, how, if at all, does our conception of Socrates’ motives help illuminate our understanding of the life of reason as Plato presents it? By inviting a multitude of authors to contribute their thoughts on these question—all of whom share a commitment to close reading, but by no means agree on the meaning of Plato’s dialogues—this book provides the reader with an excellent map of the terrain of these problems and aims to help the student of Plato clarify the tensions involved, showing especially how each major stance on Socrates entails problematic assumptions that prompt further critical reflection. (shrink)

Normative pluralism is the view that practical reason consists in an irreducible plurality of normative domains, that these domains sometimes issue conflicting recommendations and that, when this happens, there is never any one thing that one ought simpliciter to do. Here I argue against this view, noting that normative pluralism must be either unrestricted or restricted. Unrestricted pluralism maintains that all coherent standards are reason-generating normative domains, whereas restricted pluralism maintains that only some are. Unrestricted pluralism, depending on how it (...) is cashed out, is either nihilism about practical reason or else it is subjectivism. Neither view is consistent with normative pluralism; hence, pluralism must be restricted. Restricted pluralism, however, faces two problems. The first stems from the question: “Why is it that some standards are normative domains while others are not?” The question seems to demand an answer, but it is hard to give any answer without appealing to considerations that imply facts about what we ought simpliciter to do. Second, restricted pluralism has difficulty accounting for our intuitions about cases in which one option is optimal in all domains, but not better than each alternative in any one domain. The unique option that is optimal in every domain seems better than its competitors, though it isn’t better within any domain. This is different than the widely discussed argument from notable-nominal comparisons. So I conclude that we have good reason to reject restricted pluralism, the only form of normative pluralism really worthy of that name. (shrink)

Explores the interactions of fiduciary law and personal and political trust in private, public and international law.

ABSTRACT The objective of the study was to identify future lawyers’ and physicians’ views on testing children for Huntington’s disease (HD) against parents’ wishes. After receiving general information about HD, patient autonomy and confidentiality, law students and advanced medical students were shown an interview with a mother suffering from HD who is opposed to informing and testing her two children (aged 10 and 16) for HD. Students then filled out questionnaires concerning their agreement with testing. No significant differences were found (...) between medical and law students or between students from different courses concerning the adolescent son. Three quarters of students thought that he should be told about his mother’s disease, and 91% thought the adolescent son should have the opportunity of genetic testing for HD for himself. However, significant differences were found concerning the 10‐year old son, with 44% of law students and 30% of medical students in favour of testing the child for HD. Students raised some important ethical issues in their elective comments. In conclusion, we found highly positive attitudes towards informing a 16‐year old of his mother’s HD and offering to test him. These attitudes were not in tune with guidelines. Students did not consider several practical and ethical issues of genetic testing of children and adolescents. Specific education should ensure that attitudes are based on sufficiently detailed knowledge about all aspects of genetic testing of children to discourage pressures on persons at risk of HD. (shrink)

Suppose Molinism is true and God placed Adam in the garden because God knew Adam would freely eat of the fruit. Suppose further that, had it not been true that Adam would freely eat of the fruit, were he placed in the garden, God would have placed someone else there instead. When Adam freely eats of the fruit, is he free to do otherwise? This paper argues that there is a strong case for both a positive and a negative answer. (...) Assuming such cases are possible under Molinism, we are left with a puzzling question: if Molinism is true, what can you do? (shrink)

The precautionary principle in public decision making concerns situations where following an assessment of the available scientific information, there are reasonable grounds for concern for the possibility of adverse effects on the environment or human health, but scientific uncertainty persists. In such cases provisional risk management measures may be adopted, without having to wait until the reality and seriousness of those adverse effects become fully apparent. This is the definition of the precautionary principle as operationalized under EU law. The (...) precautionary principle is a deliberative principle. Its application involves deliberation on a range of normative dimensions which need to be taken into account while making the principle operational in the public policy context. Under EU law, any risk management measures to be adopted while implementing the precautionary principle, have to be proportionate to ensure the chosen high level of protection in the European Community. This articlewill illustrate the established practice concerning the release of genetically modified organisms into the environment and how the principle is implemented under hard law. The article also provides an outlook on what this may imply for the relative new case of nanotechnology and the use of precautionary principle within the context of soft law (use of codes of conduct). (shrink)

This paper investigates force shift, a phenomenon in which the canonical discourse conventions, or force, associated with a clause type can be overridden to yield polar questions with the help of additional force-indicating devices. Previous studies attribute force shift to the presence of a complex question force component operating on semantic content. Based on utterance particles and particle clusters in Cantonese, we analyze force shift as resulting from compositional operations on force-bearing expressions. We propose that a simplex force, such as (...) assertion or question, denotes unanchored sentence acts, while a force-shifting particle like Cantonese _ho2_ is an anchoring function anchoring a sentence act to the speaker while querying whether or not the addressee can perform the sentence act. The proposed semantics makes predictions about _ho2_’s interactions with addressee-changing operations and imperatives, as well as about a larger family of force shift phenomena. (shrink)

Despite the long history of beliefs about the therapeutic properties of work for people with mental ill health, rarely has therapeutic work itself been a focus for historical analysis. In this article, the development of a therapeutic work ethic (1813—1979) is presented, drawing particular attention to the changing character and quality of beliefs about therapeutic work throughout time. From hospital factories to radical ‘antipsychiatric’ communities, the article reveals the myriad forms of activities that have variously been considered fit work for (...) people with mental health problems. While popular stereotypes of basket-weaving paint a hapless portrait of institutional work, a more nuanced reading of therapeutic work and its political and philosophical commitments is advanced. The article concludes by arguing that the non-linear and inherently contested development of therapeutic work is less the effect of paradigmatic shifts within the therapeutic professions, but rather evidence of a broader human struggle with work. (shrink)

In Beck, focus intervention is used as an argument for reducing Hamblin’s semantics for questions to Rooth’s focus semantics. Drawing on novel empirical evidence from Mandarin and English, we argue that this reduction is unwarranted. Maintaining both Hamblin’s original semantics and Rooth’s focus semantics not only allows for a more adequate account for focus intervention in questions, but also correctly predicts that focus intervention is a very general phenomenon caused by interaction of alternatives in different dimensions.

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 paper asks whether geographically localised, or ‘hyperlocal’, uses of Twitter succeed in creating peer-to-peer neighbourhood networks or simply act as broadcast media at a reduced scale. Literature drawn from the smart cities discourse and from a UK research project into hyperlocal media, respectively, take on these two opposing interpretations. Evidence gathered in the case study presented here is consistent with the latter, and on this basis we criticise the notion that hyperlocal social media can be seen as a community (...) in itself. We demonstrate this by creating a network map of Twitter followers of a popular hyperlocal blog in Brockley, southeast London. We describe various attributes of this network including its average degree and clustering coefficient to suggest that a small and highly connected cluster of visible local entities such as businesses form a clique at the centre of this network, with individual residents following these but not one another. We then plot the locations of these entities and demonstrate that sub-communities in the network are formed due to close geographical proximity between smaller sets of businesses. These observations are illustrated with qualitative evidence from interviews with users who suggest instead that rather than being connected to one another they benefit from what has been described as ‘neighbourhood storytelling’. Despite the limitations of working with Twitter data, we propose that this multi-modal approach offers a valuable way to investigate the experience of using social media as a communication tool in urban neighbourhoods. (shrink)

Fire safety expertise was in great demand following the Grenfell Tower fire in London in June 2017. The government established a review of building regulations and an expert panel to inform its responses to Grenfell, and many other relevant organisations also formed their own expert panels. However, expert knowledge in fire safety is a highly contested domain, with knowledge claims based on differing sources. Fire fighters can claim expertise based on their experience of fighting fires, scientists and science-based engineers can (...) claim expertise from experimentation, and those who create and enact regulations can claim expertise in what can termed ’codespeak’—the language of regulation. Although distanced from fundamental empirical experience of fire, codespeak is powerful because of its relative clarity and certainty, and legal status. Building users also bring their own form of ‘local’ expertise—they have first-hand experience of the practicalities of the solutions wrought by the other experts. Policy-makers thus face many competing forms of expert advice on fire safety, and their ability to judge what is most relevant in any particular case rests on the existence of a sufficient range and depth of in-house government expertise. (shrink)

Lawyers write, blog and are otherwise producers of words; they structure public life through legal discourse and integrate all issues that reinforce legal reasoning. Even if one is inclined not to justify the power of their words in the context of a democratic theory, one is hardly able to challenge its public acceptance. But semiotic analyses harden the question whether these emperors wear nothing but robes. That attitude intensifies where medicine becomes increasingly relevant for legal discourse, as becomes clear where (...) for instance US political viewpoints bring bioethical issues to the Courts. One major theme in today’s medicine pertains to identity in its psychological, philosophical and social dimensions. Identity thus becomes a groundbreaking semiotic issue in law and medicine; both discourses are particular important to the otherness of the other. A US criminal law case interests here (Harrington v. State of Iowa, 2003; cited as: 659N.W.2d 509). The case is decided with “information about what the person has stored in his brain”. A chain of signs is involved: from “brain-function” to “brain-storage” via “brain-scan” to “brain-fingerprint”, for which the case became famous. A long series of signs and meanings belong here to intertwined discourses. Central is a particular sign in each discourse: “brain” means brain scan, and “fingerprint” means law! The two display trading mechanisms, which determine the otherness of the other and the self! The chain of signs in the Harrington case shows inter-disciplinarity in law and inter-discursivity among law and medicine. The trading itself underlines the semiotic dimensions in cyberspace, in particular the semiotics of the virtual (Hayles, Kurzweil) and their effects on legal discourse. (shrink)

In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 clearly (...) is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

Many people are uncomfortable with the idea that pleasure from certain sources is genuinely beneficial. These sources can be sorted into two classes: ones that involve others’ pain; and ones that involve what seems to be damage rather than benefit to the person involved. Here’s an example of the latter: a woman who claims that she enjoys her work performing in hard-core pornographic films. Some find it hard to take such a claim at face value – they instinctively (...) assume that the woman is insincere or self-deceived.1 The reason seems a strongly paternalistic one: because the activity is assumed to be bad, it’s thought that only someone who was in some way damaged could genuinely like it. A statement from Brian Hill, the director of a documentary about such women, illustrates this: ‘I felt certain that she couldn’t enjoy what she does, that there must be some reason why she’s undergoing this kind of experience. But there was nothing: no messed-up childhood, no sense of pain or humiliation.’ Forced to conclude that the woman in question really does enjoy her work, Hill changes his view to imply that the pleasure gained cannot be truly beneficial: ‘When I hear a young woman talking about doing videos of fisting and asphyxiation, I have to wonder what it’s doing to her – even if she says that she’s having fun.’. (shrink)

This volume presents cutting edge research by many of the leading researchers in the field of religious epistemology, a field that has seen major development in recent years. This book attempts to answer the questions of: how reasonable is belief in God? Can a good evidential case be made either for the existence of God, or against the existence of God? Does the existence of enormous suffering, or religious disagreement, provide significant evidence against the existence of God? How might we (...) best come to know God? What's required for religious belief to qualify as rational? All of the papers included in this volume aim to be accessible to the interested layperson. (shrink)

Wittgenstein and Kripke disagree about the status of the proposition: the Standard Metre is one metre long. Wittgenstein believes it is necessary. Kripke argues that it is contingent. Kripke's argument depends crucially on a certain sort of thought‐experiment with which we are invited to test our intuitions about what is and isn’t necessary. In this paper I argue that, while Kripke's conclusion is strictly correct, nevertheless similar Kripke‐style thought experiments indicate that the metric system of measurement is after all relative (...) in something like the way Wittgenstein seems to think. Central to this paper is a thought‐experiment I call The Smedlium Case. (shrink)

This discussion offers a theoretical framework towards the discovery and amalgamation of conceptions within hard labor law and soft law initiatives which may spring from deliberately designed public-private initiatives as well as spontaneous market-driven responses. A case in defense of soft law is made for Malaysia on the basis of political realism. Agents of soft law initiatives are evaluated with a focus on public and private codes. I argue that for Malaysia, the stage is being set for divergent regulatory (...) approaches to labor, with differing consequences and outcomes. Some of these outcomes, as will be illustrated, may not be consciously designed but are likely to occur spontaneously. The focus of the discussion will be on the changing nature of labor norms in individual employment law, the advent of human rights reasoning and the interdependence of the organic forces in a particular jurisdiction that drive the labor agenda. The discussion concludes with an argument in praise of soft law as a viable agent for driving change in hard labor law, whilst maintaining its soft law character, thus contributing to the varieties of hybrid labor regulation. (shrink)

It is often argued that courts avoid foreign laws because they prefer local law. It would make sense if they did—after all, foreign law can be hard to understand and complicated to employ, and it is also... foreign. Aiming to investigate this assumption through a qualitative analysis of all available cases on one question and comparing the findings with the approach towards local matrimonial property cases in Israel, this Article finds something rather different. At least as regards (...) Israeli judges discussing matrimonial property, it appears that sometimes judges do not prefer the lex fori but something else. The Article discusses one case that reveals what could be described as a judicial mutiny, where judges chose to apply neither foreign law nor local law per se. In the case of matrimonial property, a particular legal norm seems particularly close to the judges’ hearts. So much so that despite legislative intervention designed to change the judicially-shaped law, the courts continue to apply their own, judicially created law. (shrink)

Can researchers, interested in novel ways to assess HIV seroprevalence among populations which are otherwise hidden, collect condoms that have been discarded on the ground in a public sex environment and test them for HIV? Researchers, who use other types of abandoned samples, such as discarded syringes, hair or saliva samples, or excess biological samples, confront similar issues. This review evaluates whether such abandoned tissues can be studied based on U.S. Code of Federal Regulations and literature on related issues including: (...) research involving banked tissues, blinded seroprevalence studies, and property claims that individuals might make on the samples.It also addresses broader questions of potential for stigma and risk to individuals and communities. The article concludes that the research should be permitted legally because either it does not involve human subjects, or it satisfies the requirements for waiver of consent; and that the research should also be permitted because the ethical principal of avoiding harm to individuals is fully satisfied based on a careful reading of the lessons of the tissue bank, biological property rights, and blinded seroprevalence study debates, as well as a consideration of other potential harms that might be involved. (shrink)

Can researchers, interested in novel ways to assess HIV seroprevalence among populations which are otherwise hidden, collect condoms that have been discarded on the ground in a public sex environment and test them for HIV? Does the Code of Federal Regulations address this question, and if not, what areas of research ethics might provide guidance to an IRB considering such a study? These questions arose as part of a preliminary study to test the feasibility of collecting discarded condoms from a (...) public sex environment in Massachusetts, and testing contained semen for HIV. Although the methodology of this study is somewhat unusual, the questions raised are not. Researchers, who wish to use other types of abandoned samples such as discarded syringes, hair or saliva samples, or even excess biological samples, commonly confront similar issues, and the analysis utilized here could guide design and review of other studies. (shrink)

This paper presents an argument against the widespread view that ‘hard choices’ are hard because of the incomparability of the alternatives. The argument has two parts. First, I argue that any plausible theory of practical reason must be ‘comparativist’ in form, that is, it must hold that a comparative relation between the alternatives with respect to what matters in the choice determines a justified choice in that situation. If comparativist views of practical reason are correct, however, the incomparabilist (...) view of hard choices should be rejected. Incomparabilism about hard choices leads us to an implausible error theory about the phenomenology of hard choices, threatens an unattractive view of human agency, and leaves us in perplexity about what we are doing when we choose in hard choices. The second part of the argument explores the main competitor to comparativist views of practical reason, noncomparativist view, according tow which a choice is justified so long as it is not worse than any of the alternatives. This view is often assumed by rational choice theorists but has its best philosophical defense in work by Joseph Raz. On Raz’s view, incomparabilism about hard choices avoids the problems faced if comparativism is correct, but it faces different difficulties. I argue that Raz’s noncomparativist view mistakenly assimilates practical reason to more restricted normative domains such as the law. (shrink)

This paper suggests the adoption of a ‘capability approach’ to key concepts in healthcare. Recent developments in theoretical approaches to concepts such as ‘health’ and ‘disease’ are discussed, and a trend identified of thinking of health as a matter of having the capability to cope with life’s demands. This approach is contrasted with the WHO definition of health and Boorse’s biostatistical account. We outline the ‘capability approach’, which has become standard in development ethics and economics, and show how existing work (...) in those areas can profitably be adapted to healthcare. Cases are used to illustrate the value of adopting a capability approach. (shrink)