The article aims to assess whether the procedural innovations introduced by the reform of the civil procedure law of the Republic of Lithuania have brought changes in judges’ behaviour, which the reform intended to achieve. The study analyses the driving reason behind the reform of the civil procedure law, its objectives, and the ways the five innovations brought about by the reform changed the behaviour of the judges. The analysis of the legal sources and the empirical study show that some (...) of the innovations introduced by the Civil Procedure Code have not yet been properly assimilated and that the code, which has been in force for twenty years, is still not fully operational and understood. (shrink)

This pioneer work in comparative political analysis manifests once more the growing influence of behavioral approaches on the study of politics. In this case the general topic is the voting pattern of justices on the highest courts of several Pacific nations and India. Various heuristic and explanatory models are employed to determine the influence of such variables as age, culture, and political orientation on the adjudicative behavior of these men over a determinate period. Although the articles by twelve different (...) authors are not all of the same analytic caliber as those contributed by the editors themselves, they collectively offer an insight into the possibilities as well as into the pitfalls of behavioral studies of the judiciary. As the editors note, such a work is necessarily hypothetical and exploratory, raising more questions than it answers. Philosophers will be interested mainly in the methodological problems of concept formation and explanation which this book raises and seeks to resolve. The article by Edward J. Weissman, "Mathematical Theory and Dynamic Models," is particularly valuable from that point of view. Moreover, by classifying and comparing the other contributions to this volume, Weissman's article furnishes a certain unity which the book as a whole sorely lacks. Geared primarily for those who are familiar with such techniques as smallest-space analysis and the use of recursive causal models, this work nevertheless can be read with profit by social philosophers, philosophers of law and those interested in general questions of methodology.--T. R. F. (shrink)

Both law and medicine rely on self-regulation and codes of professionalism to ensure duties are performed in a competent, ethical manner. Unlike physicians, however, judges are lawyers themselves, so judicial oversight is also self-regulation. As previous literature has highlighted, the hesitation to report a cognitively-compromised judge has resulted in an “opensecret” amongst lawyers who face numerous conflicts of interest.Through a case study involving a senior judge with severe cognitive impairment, this article considers the unique ethical dilemmas that cognitive specialists (...) may encounter when navigating duties to patient, society, and the medical profession, without clear legal guidance.Systemic self-regulatory inadequacies in the legal profession are addressed, as well as challenges that arise when trying to preserve the trust and dignity of an incapacitated patient who must fulfill special duties to society.Ultimately, because of their unique neurological expertise and impartial assessments, we submit that allowing cognitive specialists to submit their assessments to an internal judiciary board may act as an additional check and balance to ensure the fair and competent administration of justice. (shrink)

Jeremy Waldron is well known for his disdain of U.S. jurisprudential doc- trine that allows courts to invalidate democratically enacted legislation on the ground it violates certain fundamental constitutional (and quasi-moral) rights. He believes that where disagreement on the relevant substantive is- sues is widespread among citizens and officials alike, it is illegitimate for judges to impose their views on the majority by invalidating a piece of enacted law. Even if we assume, plausibly enough, there are objective moral constraints on (...) what restrictions on behavior may be enacted into law, judges have no privileged access to the objective truth and must, like everyone else, rely on their own subjective intuitions and views. Given that judges are hence no more likely than citizens or legislators to reach the correct decision about what morality requires, these disagreements should be democratically resolved. As he puts it, if disagreement about rights is to be sorted out by counting heads, it should be the heads of citizens who have ultimate sovereignty in a democracy, rather than those of unelected judges, that ought to count.In this essay, I consider Wilfrid Waluchow’s response to Waldron’s argument in his outstanding new book, A Common Law Theory of Judicial Re- view, in which he attempts to provide the practice of judicial review with something akin to the foundation that justifies allowing judges authority over the development of the common law. I will begin with a short explication of Waldron’s argument and then consider Waluchow’s objections to Waldron, as well as Waluchow’s living-tree conception of a common-law constitution with content that evolves through a common law approach to reasoning in constitutional disputes.Resumen:A Jeremy Waldron se le conoce por el desprecio que ha manifestado con relación a la doctrina constitucional estadounidense que permite a los tribunales invalidar legislación que ha sido promulgada de manera democrática, dado que según Waldron lo anterior constituye una violación a ciertos derechos constitucionales (y cuasi-morales). Él piensa que si existe un desacuerdo importante entre los ciudadanos y oficiales del derecho en relación con cierto tema sustantivo, es ilegítimo que los jueces impongan sus puntos de vista sobre los de la mayoría de la población al invalidar una ley promulgada. Incluso si suponemos, de manera lo suficientemente plausible, que existen limitantes morales objetivas sobre las restricciones que el derecho puede contemplar en relación con el comportamiento de los ciudadanos, los jueces no gozan de un privilegio especial con el que puedan acceder a estas verdades objetivas y deben, como todos los demás, basarse en sus propios puntos de vista e intuiciones subjetivas. Entonces, dado que los jueces al igual que los ciudadanos y legisladores no pueden llegar a mejores y correctas decisiones en relación con lo que exige la moralidad, estos desacuerdos se deben decidir de manera democrática. Como sostiene Waldron, si los desacuerdos sobre los derechos se deben decidir con un recuento de manos, deben ser las manos de los ciudadanos, los cuales tienen la soberanía última en una democracia, no así los jueces que no son electos.En este artículo, el autor analiza la respuesta de Wilfrid Waluchow a los argumentos de Waldron, los cuales se encuentran plasmados en el nuevo e interesante libro: A Common Law Theory of Judicial Review, donde Waluchow intenta justificar la práctica del judicial review a través de algo parecido a la justificación que otorga a los jueces autoridad para desarrollar el common law. El autor inicia con una breve explicación del argumento de Waldron y continúa con las objeciones de Waluchow a Waldron, entre las cuales destaca la concepción de Waluchow de la Constitución como árbol viviente. (shrink)

Even though potential impacts of political and legal environments of business on ethical behavior of firms (EBOF) have been conceptually recognized, not much evidence (i.e., empirical work) has been produced to clarify their role. In this paper, using Bayesian causal maps (BCMs) methodology, relationships between legal and political environments of business and EBOF are investigated. The unique design of our study allows us to analyze these relationships based on the stages of development in 92 countries around the world. The (...) EBOF models structured through BCMs are used to explain how EBOF in a given country group are shaped by how managers perceive political, legislative, and protective environments of business in these countries. The results suggest that irregular payments and bribes are the most influential factors affecting managers’ perceptions of business ethics in relatively more advanced economies, whereas intellectual property protection is the most influential factor affecting managers’ perceptions of business ethics in less-advanced economies. The results also suggest that regardless of where the business is conducted in the world, judicial independence is the driving force behind managers’ perceptions of business ethics. In addition, the results of this study provide further support for scholars who argue that business ethics is likely to vary among countries based on their socio-economic factors. In addition to its managerial implications, the study provides directions for policy makers to improve the ethical conduct of businesses in their respective countries. (shrink)

Testimony about the future dangerousness of a person has become a central staple of many judicial processes. In settings such as bail, sentencing, and parole decisions, in rulings about the civil confinement of the mentally ill, and in custody decisions in a context of domestic violence, the assessment of a person’s propensity towards physical or sexual violence is regarded as a deciding factor. These assessments can be based on two forms of expert testimony: actuarial or clinical. The purpose of (...) this paper is to examine the scientific and epistemological basis of both methods of prediction or risk assessment. My analysis will reveal that this kind of expert testimony is scientifically baseless. The problems I will discuss will generate a dilemma for factfinders: on the one hand, given the weak predictive abilities of the branches of science involved, they should not admit expert clinical or actuarial testimony as evidence; on the other hand, there is a very strong tradition and a vast jurisprudence that supports the continued use of this kind of expert testimony. It is a clear case of the not so uncommon conflict between science and legal tradition. (shrink)

Russian is presently in a transition stage between the old centrally administered command economy and a market economy. The result is uncertainty and instability. In such a situation there is both little room and little concern for business ethics. The objective conditions for this include distortions in the systems of supply and exchange, political instability, and judicial ineffectiveness. The subjective conditions include the breakdown of morality under the communist system, and the wide acceptance of “wild” capitalism as a necessary (...) stage in the development of a capitalist market system. (shrink)

Russian is presently in a transition stage between the old centrally administered command economy and a market economy. The result is uncertainty and instability. In such a situation there is both little room and little concern for business ethics. The objective conditions for this include distortions in the systems of supply and exchange, political instability, and judicial ineffectiveness. The subjective conditions include the breakdown of morality under the communist system, and the wide acceptance of “wild” capitalism as a necessary (...) stage in the development of a capitalist market system. (shrink)

Justice must both be done and be seen to be done. A legal principle designed to give effect to this fundamental proposition is that a judge must not sit to determine a dispute if he or she is biased, or if there exists a reasonable perception that he or she is biased. Across many common law jurisdictions – including the UK, Australia, Canada, New Zealand and many jurisdictions in the United States – the judge in question himself or herself is (...) required to undertake the assessment of whether bias, or an apprehension of bias, exists. Drawing on insights from behavioural psychology and a series of case studies from across these jurisdictions, this paper offers an extended analysis of this practice and identifies and evaluates alternative proposals. (shrink)

This book well deserves the 1965 Century Psychology Series Award. The author displays a remarkable grasp of the history of philosophy, contemporary philosophy of science, probability theory, and behavioral psychology. The first part consists of a review of the empiricist tradition including informative and judicious accounts of rationalists, empiricists, Kant, logical atomism, positivism, and recent trends in logical empiricism. The second part deals directly with psychology and the philosophy of science. It culminates in a detailed and sophisticated discussion of the (...) problems concerning reductionism. The third part treats recent contributions to probability theory and induction. Although Turner covers a great deal of material, he does so with skill and imagination. One will find here one of the best philosophic defenses available of the viability of behaviorism in psychology which directly meets many of the challenges recently raised by skeptical philosophers.—R. J. B. (shrink)

Language-related right in the legal proceedings is mostly associated with access to interpreting. Literature on the bilingual courtroom primarily centres on the role of interpreters in the intercultural communication. This paper, drawing on discourse analysis of a case study in a Chinese criminal court, investigates the atypical role played by an interpreter when she ceases to be an active participant in the bilingual interaction. It discusses how language ideology underlying the judicial practice could transform the role of the interpreter (...) and convert the bilingual arterial into a monolingual one. Situating the analysis in the wider social and legal context of Chinese criminal justice system, this paper attempts to explain and interpret the judicial behaviour to keep the interpreter silent and the impact on the language rights enjoyed by the minority-language-speaking defendants. (shrink)

The study distinguishes between three normative approaches that view diversity in the judiciary as a desirable ideal, outlines their expected empirical implications for judicial decision-making, and tests the implications against data from the Israeli Supreme Court. The “reflecting” approach suggests that diversifying the courts is important mainly as a means of strengthening the public’s confidence in them and does not impact judicial decisions. The “representing” approach asserts that judges serve as representatives of their social sectors. Thus, they tend (...) to rule in favor of their group’s interest only in cases that are relevant to their in-group. The “social background theory” is based on the premise that people of different backgrounds develop distinct worldviews. Hence, social attributes are expected to influence judicial decisions across a wide range of socio-legal issues. The empirical investigation centers on the role of gender and religiosity in judging on five carefully selected socio-legal issues: petitions against the Great Rabbinical Court’s rulings, constitutional disputes in all legal procedures, social welfare cases, and criminal appeals in sex offenses and in drug offenses. The results lend support to social background theory with regard to gender and are consistent with the representing approach with respect to religiosity. I further discuss the limitations and policy implications of the findings. (shrink)

The dominant social scientific approach to studying judicial behavior treats judges as strategic actors pursuing their political preferences under institutional constraint. The intellectual roots of this rational choice approach are in American law’s long but sporadic engagement with pragmatist ideas. This article challenges that approach: a fully pragmatist account of judicial action provides a better description of the intellectual and social work of judging, and better explains how judges reach a decision in difficult cases that most affect (...) the development of law and its relationship to society. The article argues that the foundational intellectual problem for appellate judges is how to define the legal questions presented in a case. Definitions of legal questions arise from the interplay of habitual and creative action in the local social context of an appeals court. Professional and local interpretive habits and legal forms ordinarily do a great deal to define the key questions, which are not strictly determined when a case comes before a court. Unscripted small group interactions at oral arguments also figure in question definition; oral arguments are most important in the rare but legally important cases where habitual practices alone are insufficient to delimit the legal question judges must answer. Supported by extensive interviews with federal appeals judges and clerks, the article illustrates judges’ creative, interactional efforts to define an answerable question in a major asylum case decided in the Seventh Circuit Court of Appeals. Building from this case, the article describes the factors that shape judicial question definition, and describes the conditions when creative judicial action is likely to be most prominent. (shrink)

Legal formalism is the foil for many theories of law. Yet formalism remains controversial, meaning that its critics focus on claims that are not central. This paper sets out a view of formalism using a methodology that embraces one of formalism’s most distinct claims, that formalism is a scientific theory of law. This naturalistic view of formalism helps to distinguish two distinct types of formalism, “doctrinal formalism,” the view that judicial behaviour can be represented using rules, and “rule formalism,” (...) the view that judges follow external rules when they are deciding cases. Doctrinal formalism, understood in naturalistic terms, overcomes many of the criticisms that have been levelled at formalism and can also be used to rehabilitate the currently out‐of‐favour “declaratory theory of law.” Doctrinal formalism is also a longstanding view of law, reflecting both what the original formalists thought of law, and what many present‐day doctrinal lawyers seem to believe. The naturalistic methodology is used to show that the main dispute between doctrinal formalism and American legal realism can be explained by a difference of assumptions concerning whether the values of judges are relative to society, or relative to other judges. (shrink)

In his work, On Law and Justice, Alf Ross sought to explain law in scientific/empirical terms, in terms that would require no recourse to what he called “metaphysics” or “idealism.” The result is a sort of translation of legal rules and official actions into propositions of behavior, predictions of behavior, and shared ideology. The present work raises questions about the tensions within Ross's work(s), and discusses the places where Ross's analysis seems to fall short of its ambitions. In (...) the course of the discussion, the article considers issues relating to legal mistake, explanations of judicial behavior, and different types of normativity. (shrink)

In the present essay, I consider the relevance of evolutionary psychology (EP) for legal positivism, addressing the two main traditions in the legal positivist family: (1) the tradition I identify with the works of Hart and Kelsen and characterize as “normativist,” as it tries to describe law as a purely or, at least, as an essentially normative phenomenon, while remaining true to the ideal of scientific objectivity and value-neutrality; (2) the tradition I broadly refer to as “legal realism,” which equates (...) law with adjudication and “legal science” with the task of explaining judicial behaviour. (shrink)

Psychologists have recently begun to study the psychological dimensions of judging, but to date almost all of the research has been on lay experimental subjects. Implicit in the research, therefore, is that the judge's attributes as a human bring are more important than the judge's attribute's as lawyer and/or as judge in explaining judicial behavior. This may possibly be true, and it is relatively consistent with a Legal Realist understanding of judges and judging, but there remains a need (...) for research directed specifically to the question whether judges by virtue of legal training, self-selection to judging, or judicial experience think and reason and make decisions differently from lay people. More specifically, when judges engage in tasks typically reserved to judges - finding and interpreting the relevant law, most prominently - are their cognitive processes different from those of lay people engaged in analogous tasks, and from those of lay people engaged in different and more fact-focused tasks? Until we can answer these questions based on systematic research, we will not know whether there is a psychology of judging at all, as opposed simply to general psychology applied to some of the tasks in which judges, like all other decision makers, engage. (shrink)

This paper argues for the adoption of pluralist pragmatism about concepts of law. The first part of the paper introduces the argument by reference to the debate over conceptual prescriptivism in the contemporary literature on the methodology of legal theory. The second part of the paper offers a method for recognising pluralism in traditions of jurisprudential inquiry: it does so on the basis of the use of modes of objectification that can be said to underwrite the construction of concepts of (...) law. A number of examples of such modes are offered, with the focus thereafter being on two such modes: on the one hand, the explanatory paradigm of reason; and on the other hand, the explanatory paradigm of cause. A map of traditions of jurisprudential inquiry is sketched on the basis of these two modes. The third part of the paper goes on to show how combining the prescriptive resources that follow from the two traditions of jurisprudential inquiry classified in such a manner makes our response to certain practical context more robust. The four practical contexts are: the exercise of judicial behaviour; the structure of international law; legal education; and, legal scholarship. It is only by adopting the pluralist pragmatism espoused by the ethics of legal theory that we can avoid theoretical insularity (the belief that any one theoretical picture is capable of corresponding truthfully to the world) and theoretical imperialism (the belief that any one theoretical picture can be used as a foundation for a prescriptive agenda). (shrink)

Resumen: Una de las formas más comunes y menos estudiadas de parcialidad judicial subjetiva es la disminución de la credibilidad otorgada a un testigo debido a un prejuicio identitario implícito del agente judicial. En la epistemología social, este fenómeno ha sido estudiado bajo la rúbrica de la injusticia testimonial. En este ensayo mostramos que para determinar la ocurrencia de un caso de injusticia testimonial en el derecho se deben cumplir tres condiciones que son imposibles de verificar empíricamente y (...) que están basadas en presupuestos psicológicos que han sido puestos en duda en años recientes. Sin la posibilidad de verificar estas condiciones, estamos frente a un tipo de parcialidad judicial indetectable. En su lugar, ofrecemos una nueva forma de entender la injusticia testimonial en el derecho como un fenómeno más general que describe una tendencia comportamental prejuiciosa recurrente por parte de un agente judicial. Entendida de este modo, la injusticia testimonial es completamente verificable. -/- Abstract: One of the most common and least studied forms of subjective judicial partiality is the credibility deficit suffered by a witness due to an implicit identity prejudice in a judicial agent. Social epistemologists have studied this form of partiality under the rubric, “testimonial injustice.” In this essay we argue that to verify the occurrence of a singular instance of testimonial injustice in law three facts must be established, none of which can be established with any degree of confidence. Furthermore, all of them are based on psychological suppositions that have been recently discredited. Without the possibility of establishing these facts, we end up with an undetectable form of subjective judicial partiality. In its place, we offer a new way of understanding testimonial injustice in law as a general phenomenon that describes a recurrent pattern of prejudiced behavior in a judicial agent. Under this characterization, testimonial injustice becomes empirically verifiable. (shrink)

La théorie de la décision a inspiré des modèles du risque qui formalisent des choix de comportement dont la diversité tient à des facteurs individuels, sociaux et environnementaux. Comme le droit routier cherche à modifier les comportements, ces modèles ont inspiré des politiques publiques et des réformes juridiques ou judiciaires. Leurs effets sont limités par la diversité des déterminants des comportements et l’éclatement des groupes qui prennent des risques. Ces modèles n’en restent pas moins un guide pertinent pour l’action générale (...) de l’État, surtout si des actions spéciales la complètent. Celles-ci pourraient porter sur des cibles spécifiques avec des démarches appropriées, appuyées par l’éducation et la prévention.The decision-making theory has inspired risk models which formalize behaviour choices. Their diversity is due to individual, social and environmental factors. Since road safety laws aim at changing behaviours, these models have inspired policies as well as legal or judicial reforms. Their effects are limited by the variety of decision factors and the dispersal of risk-taking groups. Yet these models do remain a relevant guide for overall state action, particularly if it is enhanced by special actions. The latter could be aimed at special targets using adequate strategies backed by education and prevention. (shrink)

Tampering with the judicial system has long been regarded as an unethical and illegal standard of corporate behavior. Advances in behavioral research have recently, however, skirted the letter of the law by applying consumer research techniques to the sampling universe from which prospective jurors are selected. This practice has resulted in an unfair and measurable advantage which offsets any balance of ethics and justice.This article adopts a protagonistic perspective to demonstrate research illustrating jury evaluation techniques. Because the legal (...) system, which is based on jurisprudence, does not have the ability or resources to monitor or regulate these practices, the question must be addressed within the domain of business ethics. ... Where does the balance of ethical justice lie? Is the sole objective to win and protect the bottom line of the corporate income statement, or does a code of business ethics apply? (shrink)

The urgent need for solutions to critical environmental challenges is well attested, but often environmental problems are understood as fundamentally collective action problems. However, to solve to these problems, there is also a need to change individual behavior. Hence, there is a pressing need to inculcate in individuals the environmental virtues — virtues of character that relate to our environmental place in the world. We propose a way of meeting this need, by the judicious, safe, and controlled administration of (...) “classic” psychedelic drugs as a way to catalyze the development of environmental virtues – a form of moral bio-enhancement. Recent evidence shows that psychedelics can be given safely in controlled environments, and can induce vivid experiences of unity and connectedness. These experiences, in turn, can durably increase feelings of nature-relatedness and pro-environmental behaviors. Therefore, we argue that responsible psychedelic use can reliably catalyze the development of a key environmental virtue known as living in place. This is a “master environmental virtue” that subsumes the qualities of respect for nature, proper humility, and aesthetic wonder and awe. Our account advances the environmental virtues debate by introducing a relevant practical proposal, and advances the psychedelic moral enhancement debate by providing a much-needed conceptual framework. (shrink)

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need to be (...) put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

How might the social sciences best be employed in the study of law, especially in light of today's legal climate of anti-foundationalism? Realistic Socio-Legal Theory addresses this question thoroughly and precisely. Drawing upon philosophical pragmatism to construct an epistemological and methodological foundation, this book formulates a framework for a realistic approach to socio-legal theory. Brian Z. Tamanaha contrasts the strengths of his realistic approach with those of the major schools of socio-legal theory through application to many key issues in the (...) field. He explores the problematic state of socio-legal studies, the relationship between behavior and meaning, the notion of legal ideology, the nature of the concept of law, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. Tamanaha's discussion is always clear and concise as he articulates a social theory of law that draws equally from legal theory and socio-legal studies. His book has much to offer those interested in the gathering and organization of knowledge about law and legal phenomena. (shrink)

We live in a liberal, pluralistic, largely secular society where, in theory, there is fundamental protection for freedom of conscience generally and freedom of religion in particular. There is, however, both in statute and common law, increasing pressure on religious believers and conscientious objectors (outside wartime) to act in ways that violate their sincere, deeply held beliefs. This is particularly so in health care, where conscientious objection is coming under extreme pressure. I argue that freedom of religion and conscience need (...) to be put on a sounder footing both legislatively and by the courts, particularly in health care. I examine a number of important legal cases in the UK and US, where freedom of religion and conscience have come into conflict with government mandates or equality and anti-discrimination law. In these and other cases we find one of two results: either the conscientious objector loses out against competing rights, or the conscientious objector succeeds, but due to what I consider unsound judicial reasoning. In particular, cases involving cooperation in what the objector considers morally impermissible according to their beliefs have been wrongly understood by some American courts. I argue that a reasonable theory of cooperation incorporated into judicial thinking would enable more acceptable results that gave sufficient protection to conscientious objectors without risking a judicial backlash against objectors who wanted to take their freedoms too far. -/- I also venture into broader, more controversial waters concerning what I call freedom of dissociation – the fundamental right to withdraw from associating with people, groups, and activities. It is no more than the converse of freedom of association, which all free societies recognise as a basic right. How far should freedom of dissociation go? What might society be like if freedom of dissociation were given more protection in law than it currently has? It would certainly give freedom of religion and conscience a substantial foundation, but it could also lead to discriminatory behaviour to which many people would object. I explore some of these issues, before going back to the narrower area of freedom of conscience and religion in health care, making some proposals about how the law could strengthen these basic pillars of a liberal, free society. (shrink)

In the late eighteenth century, Adam Smith significantly shaped the modern world by claiming that when people individually pursue their own interests, they are together led towards achieving the common good. But can a population of selfish people achieve the economic common good in the absence of moral constraints on their behavior? If not, then what are the moral conditions of market interaction which lead to economically efficient outcomes of trade? Answers to these questions profoundly affect basic concepts and (...) principles of economic theory, legal theory, moral philosophy, political theory, and even judicial decisions at the appellate level. Walter Schultz illustrates the deficiencies of theories which purport to show that markets alone can provide the basis for efficiency. He demonstrates that efficient outcomes of market interaction cannot be achieved without moral normative constraints and then goes on to specify a set of normative conditions which make these positive outcomes possible. (shrink)

In this paper we look at business ethics from a deontological perspective. We address the theory of ethical decision-making and deontological ethics for business executives and explore the concept of “moral duty” as transcending mere gain and profit maximization. Two real-world cases that focus on accounting fraud as the ethical conception. Through these cases, we show that while accounting fraud – from a consequentialist perspective – may appear to provide a quick solution to a pressing problem, longer term effects of (...) fraud and misconduct make ethical implications more apparent. Widely used compensation schemes also may have the tendency to fuel unethical behavior. We argue that an ethical reinvigoration of the business world can only be accomplished by encouraging the business realm to impose upon itself some measure of self-regulating along the lines of deontological ethics. Principles of deontology should guide executive decision-making particularly when executives are tempted to operate outside of codified legislation or are bound to act under judicial-free conditions. (shrink)

:In this article, we consider contexts or domains in which moral bioenhancement interventions possibly or most likely will be implemented. By looking closely at similar or related existing practices and their relevant ethical frameworks, we hope to identify ethical considerations that are relevant for evaluating potential moral bioenhancement interventions. We examine, first, debates on the proper scope of moral education; second, proposals for identifying early risk factors for antisocial behaviour; and third, the difficult balancing of individual freedom and third party (...) concerns in psychiatry. In imagining moral bioenhancement in practice, we observe that unlike other forms of enhancement, moral enhancement fundamentally asks how the interests and preferences of the individual and the interests of others should be weighed. Highly diverse domains such as education, mental health, and the judicial domain might be involved, and moral bioenhancement might challenge existing institutional settings. Given these highly varied contexts and domains, it appears unlikely that there will be a distinct set of practices that will be referred to as “moral bioenhancement.”. (shrink)

When people speak of ‘the law of the jungle’, they usually mean unions restrained and ruthless competition, with everyone out solely for his own advantage. But the phrase was coined by Rudyard Kipling, in The Second Jungle Book, and he meant something very different. His law of the jungle is a law that wolves in a pack are supposed to obey. His poem says that ‘the strength of the Pack is the Wolf, and the strength of the Wolf is the (...) Pack’, and it states the basic principles of social co-operation. Its provisions are a judicious mixture of individualism and collectivism, prescribing graduated and qualified rights for fathers of families, mothers with cubs, and young wolves, which constitute an elementary system of welfare services. Of course, Kipling meant his poem to give moral instruction to human children, but he probably thought it was at least roughly correct as a description of the social behaviour of wolves and other wild animals. Was he right, or is the natural world the scene of unrestrained competition, of an individualistic struggle for existence? (shrink)

Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These issues are tackled in (...) a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory. `This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library... there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly...an excellent review of the legal theory literature.... It should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side.' Law and Politics Book Review `by any criterion and excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses' Oxford Journal of Legal Studies `This is the most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory' Neil MacCormick `a rich insight into almost every question legal theory has vexed itself over the past twenty-five years' Stanley Fish. (shrink)

Legal reasoning requires identification through search of authoritative legal texts that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and probabilistic search behavior generates a Pagerank-style ranking of the texts that in turn gives rise to a natural geometry of (...) the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text. The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development. (shrink)

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding (...) and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’. -/- . (shrink)

Catholic legal and doctrinal tradition defined two main cases for the canonization of saints: until very recently, sainthood was related either to martyrdom or to the heroic practice of virtues, ascertained through a well-defined judicial procedure. In 2017, Pope Francis renewed this ancient tradition by introducing a third case, consisting in the “offering of life”, namely the sacrifice of one’s life in the name of charity, intended as Christian love for the others. The “offering of life” is placed at (...) the center of an ongoing process of mediation between papal authority, the judicial praxis of the causes for canonization, and ecclesiastic law. The introduction of this new type of sainthood can be explained in light of the growing difficulty to apply the two traditional grids of behavior established by the Church in the evaluation of the life of new kinds of persons who enjoy a widespread fame of sanctity, but are not conform to the strict jurisprudential criteria of martrydrom and heroicity. Therefore, the debate surrounding the “offering of life” entails a dialectics between the necessity of a rationalized set of models, providing precise—and thus evaluable—“narrative programs” and defining a circumscribed number of canonizable human types, and the unprecedented multiplication of instances of sanctity in the contemporary world. (shrink)

Antibiotic resistance (AR) is a major threat to public health and healthcare worldwide. In this article, we analyse and discuss the claim that taking actions to minimize AR is everyone's responsibility, focusing on individual moral responsibility. This should not be merely interpreted as a function of knowledge of AR and the proper use of antibiotics. Instead, we suggest a circumstantial account of individual responsibility for AR, where individuals do or do not engage in judicious antibiotic behaviour with different degrees of (...) voluntariness. Furthermore, we suggest a notion of responsibility as a virtue, in which individuals have the opportunity to develop a sensitivity towards the AR theme and, consequently, are capable of engaging, actively and voluntarily, in judicious antibiotic behaviour. The development of such sensitivity depends on the creation of adequate circumstances, that is individual capacities and availability of resources. (shrink)

In many real-life applications of logic it is useful to interpret a particular sentence as true together with its negation. If we are talking about classical logic, this situation would force all other sentences to be equally interpreted as true. Paraconsistent logics are exactly those logics that escape this explosive effect of the presence of inconsistencies and allow for sensible reasoning still to take effect. To provide reasonably intuitive semantics for paraconsistent logics has traditionally proven to be a challenge. Possible-translations (...) semantics can meet that challenge by allowing for each interpretation to be composed of multiple scenarios. Using that idea, a logic with a complex semantic behavior can be understood as an appropriate combination of ingredient logics with simpler semantic behaviors into which the original logic is given a collection of translations preserving its soundness. Completeness is then achieved through the judicious choice of the admissible translating mappings. The present note provides interpretation by way of possible-translations semantics for a group of fundamental paraconsistent logics extending the positive fragment of classical propositional logic. The logics PI, Cmin, mbC, bC, mCi and Ci, among others, are all initially presented through their non-truth-functional bivaluation semantics and sequent versions and then split by way of possible-translations semantics based on 3-valued ingredients. (shrink)

In Jurismania, Paul Campos asserts that our legal system is beginning to exhibit symptoms of serious mental illness. Trials and appeals that stretch out for years and cost millions, 100 page appellate court opinions, 1,000 page statutes before which even lawyers tremble with fear, and a public that grows more litigious every day all testify to a judicial overkill that borders on obsessive-compulsive disorder. Campos locates the source of such madness, paradoxically, in our worship of reason and the resulting (...) belief that all problems are amenable to legal solutions. In insightful discussions of a wide range of cases, from NCAA regulations of student-athletes to the Simpson trial, from our most intractable social disputes over abortion and physician-assisted suicide to the war on drugs and the increasingly fastidious attempts to regulate behavior in public spaces, Campos shows that the mania for more law exacerbates the very problems it seeks to remedy. In his final chapter, the author calls instead for a humbling recognition of the limits of reason and a much more modest role for our legal system. Clearly written and laced with a delicious wit, Jurismania gives us a CAT-scan of the American legal mind at work. It reveals not only that the patient is even worse off than we imagined, but also clarifies the many reasons why. (shrink)

There is a growing need to increase our understanding of ethical decision making in U.S. based organizations. The authors examine the complexity of creating uniform ethical standards even when the meaning of ethical behavior is being debated. The nature of these controversies are considered, and three important dimensions for ethical decision making are discussed: leaders with integrity and a strong sense of social responsibility, organization cultures that foster dialogue and dissent, and organizations that are willing to reflect on and (...) learn from their actions. Leaders with integrity demonstrate consistency between vision and action that promotes trust, regularly concern themselves with developing moral standards, and are proactive agents of change in an increasingly complex world. Organizational cultures that support dialogue suspend judgments and increase their capacity to think together towards new levels of understanding. Ethical concepts evolve in these organizational cultures, and actions are informed and responsible. Organizations that reflect on their actions engage in double loop learning so that the time taken to reflect on the past and present leads to a more judicious and ethical future. In essence, the authors point to organizational guidelines for ethical decision making that lead to an increase in members' capacity to think and act ethically. (shrink)

This paper aims to show how adoption of a pragmatist interpretation permits a satisfactory resolution of the quantum measurement problem. The classic measurement problem dissolves once one recognizes that it is not the function of the quantum state to describe or represent the behavior of a quantum system. The residual problem of when, and to what, to apply the Born Rule may then be resolved by judicious appeal to decoherence. This can give sense to talk of measurements of photons (...) and other particles even though quantum field theory does not describe particles. (shrink)

This twelfth volume of Correspondence contains authoritative and fully annotated texts of all known letters sent both to and from Bentham between July 1824 and June 1828. The 301 letters, most of which have never before been published, have been collected from archives, public and private, in Britain, the United States of America, Switzerland, France, Japan, and elsewhere, as well as from the major collections of Bentham Papers at University College London Library and the British Library.In mid-1824 Bentham was still (...) preoccupied with the Greek struggle for independence against Turkey, though his active involvement waned as he became disenchanted with the behaviour of the deputies sent to London by the Greek National Assembly. His international reputation was reflected in his continuing contact with Simón Bolívar and Bernardino Rivadavia in South America, and with John Quincy Adams, John Neal, Henry Wheaton, and others in the United States, and his forging of new contacts in Guatemala, India, and Egypt. In the autumn of 1825 he visited France, where he stayed with Jean Baptiste Say and La Fayette, and was fêted by the French liberals.Bentham made considerable progress drafting material for his pannomion, or complete code of laws, and in particular for his Constitutional and Procedure Codes, while John Stuart Mill edited the massive Rationale of Judicial Evidence. Bentham became increasingly active in the cause of law reform, and exchanged a series of letters on the subject with Robert Peel, the Home Secretary, and Henry Brougham. He maintained his friendships with John and Sarah Austin, George and Harriet Grote, James and John Stuart Mill, John Bowring, Joseph Hume, Francis Burdett, Francis Place, and Joseph Parkes, re-established contact with the third Marquis of Lansdowne, son of his old friend the first Marquis, and made new acquaintances in James Humphreys, Sutton Sharpe, and Albany Fonblanque. (shrink)

Thoughts and theoretical reflections about “governance” in Islamic society, whether theorizing about the desired structure of government or describing the characteristics of an ideal ruler, is one of the most important topics studied in the field of political thought and philosophy in Islam, to which great names such as Farabi, etc. are connected. In this context, this research, through a comparative approach, seeks to examine and analyze the views of Farabi and Sohrawardi about the ideal ruler from the perspective of (...) a judicial approach. Based on such an approach, a philosopher like Farabi considers the different ways of connecting to the active intellect as the separation of the theoretical intellect from matter and the connection to the active intellect, and a divine sage like Sohrawardi also speaks of the separation of the theoretical intellect and the separation of the power of imagination, which is manifested in a prophet. In the eyes of both thinkers, human reason has the ability to overcome material existence. This type of excellence is a condition for achieving complete metaphysical knowledge and theoretical perfection. The ultimate happiness is the achievement of the active intellect. “The Absolute First Leader” and “Quṭb (Imam or pole)” have both achieved this position. Introduction The ideal government and ruler, in the system of Islamic philosophy, are based on the approach of philosophers to wisdom and their opinions and ruling foundations. The philosophers’ approach to wisdom and intellect in the system of Islamic philosophy has changed and developed from Farabi to Sohrawardi and later. Based on this change in the method and approach to wisdom of the sages, philosophical issues and topics including the issue of government and the ideal ruler, have also undergone changes and transformations. Despite the significant evolution of Islamic philosophy in the two Peripatetic and Illuminative systems, it seems that the ideal ruler in Sohrawardi’s philosophy, which he refers to as “the pole/Imam (quṭb),” is compatible with the first leader of al-Farabi’s utopia. The problem of this research is to investigate the characteristic features of “Qutb” and “First Leader/Philosopher” in the Peripatetic and Illuminative systems of philosophy based on Sohrawardi and Farabi’s approach to wisdom and its types. “Qutb” in Sohrawardi’s thought In the wisdom of enlightenment, the perfect human being and the “Qutb” to whom the position of caliph belongs, is perfect in intuitive and argumentative wisdom, and in other words, he is both adept in reflection and adept in discussion. In Sohrawardi’s thought, the rulers must know wisdom as well be practical wayfarers, that is, they must possess a combination of theoretical and practical wisdom. On the one hand, Sohrawardi’s theory is influenced and consistent with Plato’s theory, both of which emphasize the “ruling sage,” and on the other hand, it is influenced by the Iranian tradition and the benefit of the ideal kings from wisdom and intellect, and “Khurra-yi Kiani”1 and the approval of God, which is in the interpretation Religious and close to Sufism and Shiism, it is interpreted as Qutb and divine sage. A Qutb or an Imam is one who is connected with the active intellect, receives grace from the higher realm, and spreads goodness, prosperity, knowledge, justice, and virtue among religions with a divine plan. “The First Leader” in Farabi’s thought The First Leader is someone who does not need the guidance of another human being; rather, all sciences and knowledge are obtained by him in esse and he is able to infer appropriate actions and behavior from general reasoning. He can also best guide others to perform these meritorious deeds; the same actions and actions that bring a person to happiness. These abilities are realized in people of great and outstanding nature by connecting to the active intellect. Such a person, in fact, in the eyes of the ancients, is a king and ruler and worthy of revelation. The rule of such a person is the first rule and his leadership is the first leadership, and the rule of others that is through his rule will be the subordinate rule, and people under the rule of this leader and leader are virtuous people, the chosen ones, and the fortunate ones. Conclusion In examining and comparing the two viewpoints, it should be said that a philosopher like Farabi considers the different ways of connecting to the active intellect to be the separation of the theoretical intellect from matter and the connection to the active intellect, and a Godly sage like Sohrawardi also speaks of the separation of the theoretical intellect and the power of imagination, which manifests itself in a prophet, where we witness detachment from matter and the ability to remove the soul from the body. In the eyes of both thinkers, human reason has the ability to overcome material existence. This type of excellence is a condition for achieving complete metaphysical knowledge and theoretical perfection. The ultimate happiness is the achievement of the active intellect.”First Leader”and “Qutb” have both achieved this position. Based on this, the complete transcendence of material existence is possible for certain people. (shrink)

In this essay reviewing Brian Leiter’s recent book Naturalizing Jurisprudence, I focus on two positions that distinguish Leiter’s reading of the American legal realists from those offered in the past. The first is his claim that the realists thought the law is only locally indeterminate – primarily in cases that are appealed. The second is his claim that they did not offer a prediction theory of law, but were instead committed to a standard positivist theory. Leiter’s reading is vulnerable, because (...) he fails to discuss in detail those passages from the realists that inspired past interpretations. My goal is to see how Leiter’s reading fares when these passages are considered. I argue that Leiter is right that the realists’ indeterminacy thesis has only a local scope. Those passages that appear to claim that the law is globally indeterminate actually address three other topics: judicial supremacy, judges’ roles as finders of fact, and the moral obligation to adjudicate as the law commands. With respect to the prediction theory, however, I conclude that Leiter’s position cannot be defended. Indeed the realists offered two “prediction” theories of law. According to the first, which is best described as a decision theory, the law concerning an event is whatever concrete judgment a court will issue when the event is litigated. According to the second, the law is reduced, not to concrete judgments, but to regularities of judicial (and other official) behavior in a jurisdiction. I end this essay with the suggestion that the realists’ advocacy of the second prediction theory indirectly vindicates Leiter’s reading of the realists as prescient jurisprudential naturalists. (shrink)

The problem this paper addresses is network based, systematic tax extortion. Four key extortion system elements are considered which expose corruption links between political, administrative and judicial bodies. Based on action‐learning theory, a number of intervention methods for resisting and reforming systematic tax extortion are considered. The strengths and limitations of the methods are considered in the context of a number of case studies. Since the problem of tax extortion is more network based and systematic than it is isolated (...) and individual, any successful method of intervention must target network processes rather than isolated individual behaviours. What appears particularly promising is a social movement‐based combination and sequence of methods that includes dialogue among reformers about system‐level problems, win‐win alliances with instrumental allies, and win‐lose methods against selected opponents to extortion reform. (shrink)

The problem this paper addresses is network based, systematic tax extortion. Four key extortion system elements are considered which expose corruption links between political, administrative and judicial bodies. Based on action‐learning theory, a number of intervention methods for resisting and reforming systematic tax extortion are considered. The strengths and limitations of the methods are considered in the context of a number of case studies. Since the problem of tax extortion is more network based and systematic than it is isolated (...) and individual, any successful method of intervention must target network processes rather than isolated individual behaviours. What appears particularly promising is a social movement‐based combination and sequence of methods that includes dialogue among reformers about system‐level problems, win‐win alliances with instrumental allies, and win‐lose methods against selected opponents to extortion reform. (shrink)

Models of idealistic societies pervade the history of political thought from ancient times to the present. How can these models contribute to our thinking about political life in our non-ideal world? Not, as many political theorists have hoped, by performing a normative function -- by giving us reasons to accept particular political principles for the purpose of regulating our thought and behavior. Even still, idealistic models can sharpen our thinking about politics by performing a conceptual function -- by helping (...) us clarify and interpret the concepts we use to describe and evaluate political behavior and institutions. These insights point to a more incisive and judicious approach to political inquiry, in which explanatory and normative modes of thought are tightly intertwined. (The manuscript is under review. I have uploaded the table of contents, chapters 1 and 2, and the bibliography. Chapter summaries are available from my website.). (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Operating Through HatredAndrew G. Shuman“You’re not cutting my ***ing neck. The cancer is in my ***ing mouth.”While many patient encounters are memorable, Mr. K’s introduction to the head and [End Page 20] neck surgical oncology clinic is indelibly imprinted into the minds of all of the clinicians present on that certain autumn morning. This was, quite simply, a man who resonated hate. He was rude and disruptive. He insisted (...) on an expedited workup “without any waiting.” He questioned the ethnicity and nationality of his care providers. He told me, in no uncertain terms, that he did not appreciate my Jewish heritage—the swastika tattooed on his bicep underscored the point. He bragged about his recent incarceration for armed robbery. While my colleagues and I were tempted to simply refuse to assume his care, Mr. K had a bad problem—his recurrent tongue cancer required a major operation in order to offer him any hope for cure.Mr. K initially received an abbreviated course of radiation at an outside institution, which was limited by his non–compliance. While one might debate the wisdom of this decision in retrospect—in general, surgery is preferred for his type of tumor—the die was already cast. A heroic attempt at surgical salvage was now his only curative option. He previously sought care elsewhere... only to be fired by this original surgeon when Mr. K physically threatened him in the outpatient office during preoperative consultation. [It was the doctor’s fault for insulting him in the first place, Mr. K maintained... and no charges were filed.] We were, indeed, his last resort. Other than his recurrent cancer, Mr. K was robust; he was in his sixth decade, physically fit, and on the whole, fairly healthy. In the classic surgical lexicon, he was a reasonable surgical candidate. But was it reasonable to operate on such a person?I remember thinking, at the time, about our obligation to care for such an individual. Of course, being a medical professional carries with it many obligations, including a judicious assumption of personal risk. And, working in a tertiary care center begets the responsibility to assist referring clinicians in the management of difficult cases. Although professional obligations certainly have their limits, defining their bounds is decidedly more difficult. Paramount is creating an atmosphere of mutual trust and acceptance. Naturally, this was easier said than done in regard to Mr. K.Perhaps against our better judgment, we agreed to operate under the condition that he abide by strict behavioral ground rules, on our terms. We agreed upon the extent of the necessary operation (which indeed involved cutting his ***ing neck, much to his chagrin and reluctant acceptance). Mr. K promised to follow instructions for postoperative care. He assured us that he would not swear or yell (again). And, in the presence of hospital security, who reinforced our institutional policies regarding patient behavior, he guaranteed that he would not be verbally or physically violent or inappropriate, and would not make disparaging comments to other patients or staff. It seemed, at least, that we had an understanding.Needless to say, these rules were broken shortly after he awoke from surgery. I vividly remember being summoned from the OR when he threatened to murder his impressionable and terrified nurse a few days later, who would not acquiesce to his unreasonable demands. From that point onward, hospital security was deployed to his room regularly, and anything resembling a potential weapon was safeguarded. Any semblance of a mutual doctor–patient bond was shattered. At this point, everyone’s goal was simply to get Mr. K home.My visceral reactions to his behavior, while intense, were not unexpected, and fell in line with those of the entire team of clinicians caring for him. His antics brought his healthcare team together in collective unity (and condemnation). However, my surgical colleagues and I also felt somewhat guilty and responsible. While surgeons can choose to assume some degree of inherent personal danger in caring for a violent and angry patient, we also put the safety and soundness of the entire perioperative team in jeopardy, without necessarily seeking their input. But once we had decided to... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Picking Up the Pieces of a Shattered Culture:Abandoning Sartre for AquinasR. E. HouserI expect to die in my bed, my successor will die in prison, and his successor will die a martyr in the public square. Then his successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the Church has done so often in human history.—Francis Cardinal George (2010)Here I propose to (...) present a feature of the ethics of Thomas Aquinas, his ethical doctrine of virtue, concentrating on the four cardinal virtues—justice, prudence or good practical judgment, courage, and temperance. Plato first selected them as the four premier virtues, but they go back at least to Homer, for whom wily Odysseus exemplified prudence, warlike Achilles courage, old Nestor justice, Penelope and Telemachus, Odysseus' wife and son, temperance. And I offer them as central to living the morally good life required to "rebuild civilization" in an America that so fair and judicious a man as Cardinal George could call a "ruined society." To see the need for Thomas's solution, we must begin with the problem. Now, all societies depend upon the deep and fundamental ideas of the most important thinkers, prophets and sages, saints, and yes, even philosophers. Their ideas "trickle down" to influence regular folk, like you and me, those who whose hard work actually makes a society thrive, or die. And when those fundamental ideas change, the moral principles of those who embrace those ideas change, and consequently their actions change, and as a result the wider society in which they live changes, for better or worse. Such effects can now be felt across America [End Page 135] by all; but most of us are unaware of the primary intellectual agents of these changes, since they operate at the level of fundamental ideas, not politics or business or day-to-day life. And often their originators have died before the ideas reach full cultural force. So, ignorance of history makes it difficult to deal with present problems caused by those ideas.My first conclusion will be that a major cause of the current coarsening of our culture is the group of ideas of the French philosopher Jean Paul Sartre, even though most Americans have never heard of him, and most of those who recognize his name have not read his works carefully enough to see the connection. Why Sartre? In the honors program at my university, I had a bright young lady of Muslim heritage who had gone to a lycée, one of France's elite classical secondary schools. "Did you read the classics?" "Yes." Expecting Montaigne or Pascal, I asked, "Who?" Her answer: "Sartre." So let us begin with the theory and practice of Sartre and his long-time lover Simone Beauvoir, whose book The Second Sex was an intellectual spark for the women's liberation movement. Then we turn to some real-life examples of Sartrean influence on ourselves and American culture. Finally, for the best remedy for non-Christian and Christian alike, I recommend Aquinas's doctrine of virtue, when taken in its full scope.Sartre's Ethics of Absolute FreedomIn 1946, the year I was born, Sartre gave a lecture to a meeting of French librarians, which became his most popular book, Existentialism is a Humanism. There he laid out the core of his thought about God, humans, and their ethical behavior. Here I arrange his main ideas in an order that facilitates comparison with Aquinas, beginning with his view of human ontology and proceeding to its impact on the four cardinal virtues.Human OntologySartre turned his back on the traditional metaphysical view that every creature is an individual substance defined by a nature or essence it has in common with all other things of that type. In his "first principle of existentialism," Sartre skips over other animate things, plants and animals, and compares humans to inanimate objects:Let us consider... a book or a paper-cutter: here is an object made by an artisan whose inspiration came from a concept.... One cannot postulate a man who makes a paper-cutter but does not know what it is... (shrink)

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for (...) an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech. Habermas' theory takes as its point of departure the speech act theory developed through contemporary analytic philosophy and linguistics. The central theme of speech act theory is that speech is action; communication coordinates individual behavior through achieving rational understanding. An important corollary is the proposition that communication is intersubjective; speech acts involve both speakers and listeners. In addition, the theory of communicative action makes a distinction between communicative action-oriented to the coordination of behavior through rational agreement-and strategic behavior-the use of speech to manipulate, coerce, or deceive. I argue that a theory of free speech can incorporate this distinction to mark the boundaries of the right to free speech: freedom of speech is freedom to engage in communicative action, not strategic action. Another component of Habermas' theory is the ideal speech situation, in which rational agreement may be reached because distorting factors are excluded; this ideal situation serves as the basis of a principle of equality of communicative opportunity that can give the freedom of speech its fundamental content. Habermas' theory of communicative action provides the basis for my reinterpretation of the first amendment freedom of speech as the freedom of communicative action. This Article has two aims. My first aim is to develop a theory of the meaning of the first amendment from the theory of communicative action. In pursuit of this first goal, the Article assumes a perspective that is internal to the practice of American constitutional law. I argue that Habermas' theory has substantial power to explain and justify first amendment doctrine. Indeed, it is my view that a theory of freedom of speech based on the theory of communicative action, more so than any other theory, provides the best justification for the first amendment while simultaneously providing the best fit with the existing case law. In addition to the development of a theory of the first amendment, this Article has a second aim: From the point of view of the practice of social theory, the current Article is a "thought experiment" designed to test and elaborate Habermas' theory of communicative action. I explore various objections to and ambiguities in the theory of communicative action by taking up the attitude of a participant in the practice of legal interpretation who adopts the theory of communicative action as a practical principle for institutionalization of discourse in the public sphere. It is my hope that this thought experiment will have value in the enterprise of understanding, clarifying, and extending the theory of communicative action. For example, this Article responds to the suggestion that the theory of communicative action should be reformulated as a theory of institutionalized discourse "in the public sphere of a participatory democracy." Part II of this Article begins with a hermeneutic approach to the problem of interpreting the first amendment. Part III explores and criticizes existing theories of the freedom of expression. The theory of communicative action is explicated in Part IV; the implications of that theory for the freedom of speech are explored in Part V. Finally, Part VI applies the results to specific problems in first amendment doctrine, and Part VII draws some conclusions about the implications of this exercise for both first amendment doctrine and the theory of communicative action. (shrink)

This essay disentangles the complex relations between economic logic and legal logic. It distinguishes economic logic as a social process from economic logic as economic reasoning; economic reasoning to explain behavior from economic reasoning to evaluate behavioral outcomes; and legal reasoning in judicial contexts from legal reasoning in other contexts such as legislation and legal enforcement or compliance. It then argues first that economic logic as the logic of social processes deepens our understanding of how law develops and (...) how it influences behavior. But the essay argues second that economic logic plays at best a limited role in the logic of legal reasoning for two reasons. Much legal reasoning seeks to identify the goals we should and do pursue while economic logic takes such goals as given. Further, the instrumental role of economic logic will vary with the institutional context in which legal reasoning occurs. (shrink)