This book offers an original theory of adjudication focused on the ethics of judging in courts of law, and proposes two main theses. One is the good faith thesis, which defends the possibility of lawful judicial decisions even when judges exercise discretion. The other is the permissible discretion thesis, which defends the compatibility of judicial discretion and legal indeterminacy with the legitimacy of adjudication in a constitutional democracy. Together these two theses oppose both conservative theories that would restrict the scope (...) of adjudication unduly, and leftist critical theories that would liberate judges from the rule of law. (shrink)

Oliver Wendell Holmes, Jr. is, arguably, the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. In it, Holmes detailed his radical break with legal formalism and created the foundation for the leading contemporary schools of American legal thought. He was the dominant source of inspiration for the school of legal realism, and his insistence on a practical approach to law and (...) legal analysis laid the basis for the realists' later concentration upon the pragmatic and empirical aspects of law and legal procedures. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix. (shrink)

*Tackles the Thomistic debate surrounding the inherent good and evil of human actions*.

The leading models of disability struggle to fully encompass all aspects of “disability.” This difficulty arises, the author argues, because the models fundamentally misunderstand the nature of disability. Current theoretical approaches to disability can be understood as “nounal,” in that they understand disability as a thing that is caused or embodied. In contrast, this paper presents an adverbial perspective on disability, which shows that disability is experienced as a personally irremediable impediment to daily-living tasks or goals-like-ours. The picture theory of (...) disability technically constitutes a species of relational approach because its analysis references the interplay between an individual and their environment; it differs from other relational accounts, however, by interpreting disability as a certain kind of negative experience—rather than a function of that relationship. This purely descriptive theory makes no normative claims about disability and operates as both a mechanism for the evaluation of the experience of disability and a heuristic device for the proper interpretation of disability. When disability is reframed in this way, the theory offers a particularist perspective which shows if, when, where, and how disability is experienced. (shrink)

The problem -- The text -- Inclinations -- Good -- Nature -- The will -- Ought -- Obligation -- Principles -- Action.

In lieu of an abstract, here is a brief excerpt of the content:Efficacious Grace and Free Will:Six Inadequate ArgumentsSteven J. JensenDuring the de auxiliis controversies, the idea of efficacious grace was used extensively as an attempt to explain the manner in which God infallibly achieves his will at the level of supernatural grace. One meaning of efficacious grace has often been considered inconsistent with the idea of free will. The inconsistency—if there is any—depends upon a particular meaning, according to which (...) efficacious grace has three important characteristics: it is an infallible physical pre-motion. (1) Efficacious grace is "physical" because it moves after the manner of an efficient cause rather than after the manner of a final cause (which would be called a "moral" motion).1 (2) The motion is prior (or a pre-motion) because it causally precedes the act of the will to which it gives rise. Finally, (3) the motion is infallible because that toward which it moves the will in every case must be achieved.Suppose, for instance, that God gives Jerry an efficacious grace to help Jane, who is in need. The grace is not merely the enticement of some good (a moral movement), but is the movement of an efficient cause, after the manner by which fire heats water. Furthermore, the grace is efficacious prior to Jerry's actual choice and does not depend upon his will for its efficacy. Finally, once Jerry is moved by this grace, he will of necessity (or infallibly) choose to help Jane.In what follows, references to efficacious grace will refer to this particular [End Page 115] understanding, with these three characteristics. Other conceptions of efficacious grace, such as that given by Jacques Maritain, are not relevant to this paper.2The combination of these three characteristics is sometimes thought to be inconsistent with a particular understanding of free will, according to which the will is the only created cause that determines itself to its final action. Since efficacious grace is a created cause (and not the divine will), since it is an efficient cause, since it is causally antecedent to the final act of the will, and since it determines the will to act, it is inconsistent with free will. Or so the argument goes, at any rate. Whatever the details of this argument, most people will concede that there is, at the very least, an intuitive inconsistency between free will and efficacious grace. To be moved infallibly by an efficient cause seems incompatible with the movement of the will, the agency of which is free, and which therefore is not moved determinately to some effect.3Those who wish to defend efficacious grace have advanced a contrary claim—that efficacious grace is consistent with human free will—which might be called the Consistency Thesis. Apparent inconsistencies are nothing more than apparent. In defense of the Consistency Thesis, a multiplicity of Thomistic arguments are offered by authors such as Reginald Garrigou-Lagrange, Steven Long, and Taylor O'Neill.This paper is concerned to show neither the truth nor the falsity of the Consistency Thesis. Rather, it considers six of the arguments defending the thesis and finds all of them wanting. Whatever their merits for other purposes (and often their merits are great), these arguments are inadequate to the task of defending the Consistency Thesis. They are often not bad arguments; they are simply insufficient. They are not enough to show a consistency between efficacious grace and free will. This goal, although modest, is significant, for when confronted with the six arguments readers can be left with the impression that the question is settled. [End Page 116]The Problem ClarifiedThe enemies of efficacious grace suggest the following implication: if the will is moved to act by an infallible physical pre-motion, then the will is determined. The Consistency Thesis may be defended by denying the implication. Even when moved by an infallible physical pre-motion such as efficacious grace (so the defense will argue), the will can remain undetermined. All the arguments discussed below (if they are indeed arguments in defense of the Consistency Thesis) take this approach, although the fourth argument does so only in a very indirect manner.The first argument claims... (shrink)

According to Michael Barnwell, Aquinas’s explanation of the first cause of moral evil is inadequate. Against Barnwell’s criticisms, this article defends Aquinas, according to whom the first cause of moral evil is the failure to consider the moral rule. According to Barnwell, the ignorance found within Aquinas’s explanation must remove moral responsibility; Barnwell also points out that the failure to consider the moral rule does not explain the sinfulness of the action. Underlying Barnwell’s criticisms are certain presuppositions and oversights. First, (...) he fails to distinguish between explaining how a sinful choice is possible (Aquinas’s concern) and what makes the choice to be sinful (part of Barnwell’s concern). Second, he supposes that an awareness of one’s own ignorance must include detailed awareness of the content of that ignorance. Finally, he supposes that an initial causal defect can be voluntary only when there is full knowledge concerning it. (shrink)

According to Michael Barnwell, Aquinas’s explanation of the first cause of moral evil is inadequate. Against Barnwell’s criticisms, this article defends Aquinas, according to whom the first cause of moral evil is the failure to consider the moral rule. According to Barnwell, the ignorance found within Aquinas’s explanation must remove moral responsibility; Barnwell also points out that the failure to consider the moral rule does not explain the sinfulness of the action. Underlying Barnwell’s criticisms are certain presuppositions and oversights. First, (...) he fails to distinguish between explaining how a sinful choice is possible and what makes the choice to be sinful. Second, he supposes that an awareness of one’s own ignorance must include detailed awareness of the content of that ignorance. Finally, he supposes that an initial causal defect can be voluntary only when there is full knowledge concerning it. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Elegia i.3 PROPERTIUS Translated by Steven J.Willett Just as she lay when Theseus’ keel was sliding seaward, the Cnossian maid languid on the desolate shore; just as Cepheus’ daughter reclined in her first slumber, Andromeda, now freed from jagged rocks; just as the Thracian bacchant, weary from incessant dancing, slumps on the grassy bank of the Apidanus; even so Cynthia seemed to breathe a soft repose, her head (...) pillowed on open unruly hands, when I came dragging footsteps wobbly with too much wine, the boys waving burnt-out torches in the late night. Against her I tried, not all my senses utterly derelict, to advance gently on the compliant couch; and, though seized by a double ardor—each was commanding me, love here and wine there, both implacable gods— to assault her by slipping my arm lightly beneath her body and with a hand advanced take kisses and arms, yet I lacked the courage to shatter my mistress’ repose, fearing the brawls whose savagery I’d tasted; so I remained standing there motionless with rapt eyes, like Argus at the strange sight of Io’s horns. And now I was untying the garlands from my forehead and placing them, Cynthia, around your temples; and now I was finding it pleasant to smooth your fallen tresses; then I was giving you stolen apples in hollow palms; but I was lavishing all these gifts on ungrateful sleep, gifts that often tumbled from your sloping lap; and every time you heaved a sigh stirring fitfully, arion 28.2 fall 2020 98 elegia 1.3 I froze, foolishly credulous of an empty sign, fearful that some dream was bringing you strange terrors, or some man was forcing you reluctantly to be his: until the moon drifting across the opposite windows, the meddling moon whose eyes incline to linger, drew her closely-lidded eyes open under its delicate beams. Then, her elbow propped on the soft couch, she asked: “Has another’s rejection finally brought you back to my bed, chucked out with the doors slammed in your face? Where have you squandered the long hours of my night, languid, alas for me, as the stars are waning? Oh, I pray that you may endure, you beast, such nights as you are always making poor me to suffer! Just now I was cheating sleep with purple yarn at the loom, and then, exhausted, with song on Orpheus’ lyre; and sometimes, quite desolate, I softly complained to myself of the long waits your outside loves often cost me. Till sleep with gentle wings brushed me down to oblivion. That was the last concern of all my tears.”... (shrink)

The Human Condition is neither a well-defined nor well-described concept—nevertheless, it is generally agreed that human sexuality is a fundamental and constituent part of it. For most able-bodied persons, accessing and expressing one's sexuality is a (relatively) trouble-free process. However, many disabled persons experience difficulty in accessing their sexuality, while others experience such significant barriers that they are often precluded from sexual citizenship altogether. Recognising the barriers to the sexual citizenship of disabled persons, the concept of a Welfare-Funded Sex Doula (...) Program has been advanced — a program specifically aimed at meeting the various (and often complex) sexual needs of disabled people. Below we show how that program can be justified within at least two different moral frameworks, the capabilities approach and liberal utilitarianism, and consider and repudiate arguments against it. (shrink)

The American Journal of Bioethics, Volume 11, Issue 12, Page 57-59, December 2011.

Much of the discourse in the bioethics literature on what is often called “cesarean delivery on maternal request” has focused on balancing respect for patient autonomy with attention to the short- and long-term risks of this procedure to maternal and neonatal well-being. And while there has been some analysis of the social and economic costs inherent in performing cesareans, much of the clinical and ethical analysis has concluded that, given the degree of risk to the mother and neonate from a (...) primary or single repeat cesarean delivery, there is sufficient justification for pregnant women to request and obtain this procedure from obstetricians willing to meet such requests. However, these same analyses often caution that physicians should not offer these elective cesareans to all women, but only to those who initiate the request. This paper analyzes recommendations that do not promote universal access to these procedures and concludes that such a policy is ethically unjustifiable, as it treats women who do not inquire about such procedures differently. Depriving appropriate candidates—for example, healthy women who are good surgical candidates and desire only one or two children—of information about elective cesarean delivery is a form of undue influence on women's decision-making. (shrink)

In March 2015, the Dag Hammarskjöld Foundation convened a workshop in Uppsala, Sweden to address questions about antibiotic resistance, in partnership with the Global Strategy Lab, the Journal of Law, Medicine & Ethics, the Norwegian Institute of Public Health, and ReAct – Action on Antibiotic Resistance. Eleven concise articles were commissioned to explore whether ABR depended on global collective action, and if so, what tools could help states and non-state actors to achieve it. This article introduces that collection, which is (...) found in an online-only symposium at aslme.org. (shrink)

Most proposals for new international agreements aim to address important global challenges. If the goal is to solve problems, then the value of these agreements depends on their ability to influence the world — to shape norms, constrain behavior, facilitate cooperation, and mobilize action. A recent review of empirical studies has suggested that many international agreements fail to achieve their aspirations. The review indicates that the form in which states make commitments to each other — through an international legal agreement (...) or through other means — may not be as important as commonly thought. It is the content of the commitments and how these are supported by mechanisms to encourage implementation that matter the most. When developing proposals for new international agreements, like the one that has recently been proposed to address antibiotic resistance, attention to implementation mechanisms should therefore be equal to if not greater than the attention paid to its form. (shrink)

Naturalism - the thesis that all facts are natural facts, that is the facts that can be recognised and explained by a natural science - plays a central role in contemporary analytical philosophy. Yet many philosophers reject the claims of naturalism. The essays in this anthology explore the difficulties of naturalism by revealing the ambiguities surrounding it, as well as the tensions that exist among its critics.

Christopher Wellman and some allied scholars argue that a ‘samaritan theory’ can justify state coercion. They also suppose that states may provide robust, social egalitarian welfare provisions for a variety of reasons that would arise within samaritan states. However, the most promising reasons—samaritanism itself, natural socialism, relational equality, and anti-crime paternalism—cannot support robust provision without discarding the strong presumption favoring individual liberty which must motivate the samaritan theory. Consequently, a samaritan state cannot be a robust social welfare state.

Cutting a cake, dividing up the property in an estate, determining the borders in an international dispute - such problems of fair division are ubiquitous. Fair Division treats all these problems and many more through a rigorous analysis of a variety of procedures for allocating goods, or deciding who wins on what issues, when there are disputes. Starting with an analysis of the well-known cake-cutting procedure, 'I cut, you choose', the authors show how it has been adapted in a number (...) of fields and then analyze fair-division procedures applicable to situations in which there are more than two parties, or there is more than one good to be divided. In particular they focus on procedures which provide 'envy-free' allocations, in which everybody thinks he or she has received the largest portion and hence does not envy anybody else. They also discuss the fairness of different auction and election procedures. (shrink)

The sexual citizenship of disabled persons is an ethically contentious issue with important and broad-reaching ramifications. Awareness of the issue has risen considerably due to the increasingly public responses from charitable organisations which have recently sought to respond to the needs of disabled persons—yet this important debate still struggles for traction in academia. In response, this paper continues the debate raised in this journal between Appel and Di Nucci, concurring with Appel’s proposals that sexual pleasure is a fundamental human right (...) and that access to sexual citizenship for the severely disabled should be publicly funded. To that endeavour, this paper refutes Di Nucci’s criticism of Appel’s sex rights for the disabled and shows how Di Nucci’s alternative solution is iniquitous. To advance the debate, I argue that a welfare-funded ‘sex doula' programme would be uniquely positioned to respond to the sexual citizenship issues of disabled persons. (shrink)

Christopher Tollefsen, relying on the new natural law theory, has suggested that in the Phoenix abortion case, the action might be characterized simply as removing the baby rather than killing the baby. Tollefsen and other proponents of the new natural law theory fail to give proper weight to the observable facts of the world around us, and thereby tend to ignore the importance of observable causes in shaping the character of our intentions and our actions. An appreciation of the role (...) of causes reveals that our intentions cannot so readily land on one description of an action and exclude other descriptions. For the Phoenix case, the description “harming the baby” cannot fall outside the doctors’ intention. National Catholic Bioethics Quarterly 14.2 : 273–293. (shrink)

John Finnis claims that in order to judge actions we must approach them from the perspective of the acting person, so that the moral evaluation of actions appears to become private. This paper examines Elizabeth Anscombe’s claim that interior intentions can be discovered through exterior actions. Because deliberation is shaped by the causal features of the world, these causal structures can, when viewed from the outside, serve as a window into the private life of the mind. Therefore, we can usually (...) determine someone’s intention through his observable actions, so that the moral character of actions can become public by way of signs. Causal connections are both effects of intention and causes of intention. Neither of these relations by itself serves as an adequate sign of intention, but the combination of these two (causal structures both as effects and as causes of intention) can serve as signs of intention. (shrink)

Ethics and the good life -- Reason and the emotions -- Conscience and choice -- Loving and choosing -- Doing right and desiring right -- Virtue and the emotions -- Justice -- Injustice -- Intrinsically evil actions -- Virtue and truth -- Practical wisdom -- Ethics and knowledge -- Ethics and happiness.

The virtue of higher discernment (gnome) is able to discern when a particular rule must be set aside for some higher principle. Aquinas compares the failure of a particular principle to the production of monsters or defective animals. Most of those who treat of the exceptions to rules ignore this analogy, yet it provides important insights into the virtue of gnome and exceptions to rules. A defective animal is a monster only in relation to the particular cause of the power (...) of reproduction; in relation to a higher cause it is proper and well ordered. Similarly, an exception to a general rule is a kind of monster in relation to that rule, but inrelation to a higher principle it is a well-ordered act. (shrink)

The virtue of higher discernment (gnome) is able to discern when a particular rule must be set aside for some higher principle. Aquinas compares the failure of a particular principle to the production of monsters or defective animals. Most of those who treat of the exceptions to rules ignore this analogy, yet it provides important insights into the virtue of gnome and exceptions to rules. A defective animal is a monster only in relation to the particular cause of the power (...) of reproduction; in relation to a higher cause it is proper and well ordered. Similarly, an exception to a general rule is a kind of monster in relation to that rule, but inrelation to a higher principle it is a well-ordered act. (shrink)

Michael Barnwell has helpfully clarified his criticisms of Aquinas’s explanation of proto-sins. In this response, I further clarify my own defense of Aquinas. Although the sinner lacks one rule, he has at hand another: he is aware that if he chooses, then he must have the rule of his action. This rule is conditional, that is, he is not obliged—categorically—to have the rule at hand; rather, he is obliged to have the rule only if he chooses. An additional clarification concerns (...) the manner in which the sinner is aware that he lacks the rule. More precisely, he is aware that he might not have the rule. In a proto-sin, then, the sinner is aware that if he chooses an action, then that action should be ordered to the end, and he is also aware that the good he desires while acting might not be ordered to the end. (shrink)

New natural law advocates are somewhat notorious for their loose action theory, having a track record of counterintuitive claims. In response to criticisms, advocates have entrenched, further defending their questionable action theory. This paper first rehearses the basic criticism against the new natural law action theory. It then examines four recent attempts to revive this action theory and finds these attempts wanting. Within these attempts, certain patterns arise. Given a certain means A to a goal C, a search is made (...) to determine whether any middle means B is implied by A. The standards of this search vary wildly, however. By some standards, a middle means can be found; by others, every middle means can be easily swept aside. The same author will sometimes use both kinds of standards, depending upon the situation. One great weakness of the action theory, then, is a lack of consistency in applying a universal standard. (shrink)

The enigma of an evil will -- The order of actions to the ultimate end -- The satisfaction of desire -- Venial sin -- The first moral act -- The shared good -- Sins of passion -- Weakness of will -- Sins from an evil will -- Sins of ignorance -- Omissions -- The first cause of moral evil -- Compatibilism or libertarianism -- Free decision -- Choose life.

Sensation -- Skepticism -- Internal senses -- The emotions -- Mechanism -- Materialism and dualism -- Hylomorphism -- The problem of universal knowledge -- Reason -- Immortality -- Freedom -- The will -- Free decision -- Purpose.

Martin Rhonheimer’s The Perspective of Morality: Philosophical Foundations of Thomistic Virtue Ethics offers a bold summary of Thomistic virtue ethics, laid upon some not-so-Thomistic foundations, culminating in questionable, perhaps even dangerous, conclusions concerning actions evil in themselves. As anintroduction to ethical thought, the book covers a wide range of topics, including happiness, freedom, the nature of human actions, the moral virtues, conscience, the principles of practical reason, consequentialism, Kantian ethics, and much more. For some of these topics Rhonheimer provides a (...) helpful summary of the ethics of Aquinas, sprinkled with thoughtful reflections for the modern age. For other topics Rhonheimer introduces questionable interpretations and developments of Aquinas, written with obscurity and lack of precision. This article provides some suggested alternatives to Rhonheimer’s account, especially with regard to the origin of the first practical principles. (shrink)

Abstract“Psychological essentialism” refers to our tendency to view the natural world as emerging from the result of deep, hidden, and internal forces called “essences.” People tend to believe that genes underlie a person’s identity. People encounter information about genetics on a regular basis, as through media such as a New York Times piece “Infidelity Lurks in Your Genes” or a 23andMe commercial showing people acquiring new ethnic identities as the result of their genotyping. How do people make sense of new (...) scientific findings that are inherently complex if they don’t have years of specialized training and education at their disposal? Given the substantial overlap between a lay understanding of genetics and lay intuitions about essences, we argue that, when most people are thinking about genes, they are not really thinking about genes in the complex ways that good scientists are. Combating people’s essentialist biases can be a formidable challenge. Although we have identified some promising results of trying to reduce people’s genetic essentialist tendencies, there is still much to learn about how these essentialist biases can be countered. It is important to help people understand genetic information so they are able make well‐informed decisions about their lives. (shrink)

In a study of the kin investment of aunts and uncles we show that the laterality effect expected as a result of paternity uncertainty is statistically reliable but somewhat smaller than the sex effect. Matrilateral aunts invest significantly more than patrilateral aunts, and the same is true for uncles. Regardless of laterality, however, aunts invest significantly more than uncles. Multivariate controls show that the matrilateral bias is fully independent of any age or distance confounds that might result from sex differences (...) in age at marriage or dispersal. We discuss our results in relation to recent findings on the kin investment of grandparents (Euler and Weitzel 1996). In addition, we propose a simple method for estimating the level of paternity uncertainty from kin investment data; application of this method to our data on aunts and uncles suggests that between 13% and 20% of children are not the offspring of their putative father. Our parallel analyses of Euler and Weitzel’s (1996) data on grandparental investment suggest a similar estimate, that paternity uncertainty lies between 9% and 17%. (shrink)

Antimicrobial resistance is one of the greatest public health crises of our time. The natural biological process that causes microbes to become resistant to antimicrobial drugs presents a complex social challenge requiring more effective and sustainable management of the global antimicrobial commons—the common pool of effective antimicrobials. This special issue of Health Care Analysis explores the potential of two legal approaches—one long-term and one short-term—for managing the antimicrobial commons. The first article explores the lessons for antimicrobial resistance that can be (...) learned from recent climate change agreements, and the second article explores how existing international laws can be adapted to better support global action in the short-term. (shrink)

This report outlines the findings from a Delphi study designed to establish consensus on the definitions of cognitive style and learning style amongst an international style researcher community. The study yields long-needed definitions for each construct that reflect high levels of agreement. In a field that has been criticised for a bewildering array of definitions and a proliferation of terms and concepts, this study represents an important step to address confusion in the meaning of the two terms. New researchers interested (...) in styles are encouraged to draw on these definitions when developing new research agendas aimed at deepening our understanding of style as a core construct in educational psychology. (shrink)

The identity conception of truth holds that a thinkable is true just in case it is a fact. As such, it sets itself against correspondence theories of truth, while respecting the substantive role played by truth in respect of enquiry. In this article, I motivate and develop that view, and, in so doing, promote a particular conception of sense. This allows me to defend the view from two substantial criticisms. First, that the identity conception of truth is incoherent in respect (...) of its treatment of objects in the realm of reference, and, second, that it is committed to a view of the world in which ordinary objects have no place. (shrink)