ABSTRACT Some commentators recognise a distinction between policy and principle and regard private law as exclusively a matter of principle. Variants of this approach are found in Dworkin and corrective justice and ‘rights’ theorists. For these commentators, the distinction is fundamental to the character of private law, and to its development through the common law. Other commentators, in particular proponents of policy-oriented accounts, including the economic analysis of law, deny that there is any basis for such (...) a distinction. I discuss in outline some of the attractions and difficulties of these approaches, and I set out a version of the principle/policy distinction in terms of the ‘standpoint limitation’, which I argue determines the character of private law. I consider how the standpoint limitation gives rise to the characteristic structural features of private law, focussing on contract and negligence in tort. I also show how, on one approach to the common law, the standpoint limitation is implicit in ordinary common law reasoning. (shrink)

The concern of this essay is to reveal the way in which an architecture of Humean and Cartesian thought, taken for granted by both analytical and critical approaches to legal theory, has stood in the way of demonstrating that facts can be justifications of judicial decisions without recourse to an additional layer of moral or political justification. The inability to demonstrate the normativity of legal facts or state affairs has been the single most serious defect in traditions of pragmatic (...) thought about law (e.g. in legal realism and its contemporary descendants such as critical legal studies, feminist and critical race theory, socio-legal studies etc.). The analysis in this essay provides an argument for abandoning many taken for granted oppositions which inhibit pragmatic and realist approaches to law. These include the stark oppositions between: hermeneutic and causal explanation in law; reasons for decisions and reasons why decisions were reached; normative factors and pure fact etc. The author's chief concern is to demonstrate the possibility of uniting the logic of judicial reasoning with the logic of factual context, and to demonstrate that justification in law is not to be identified with the justification of ethical propositions. (shrink)

"In this paper I shall attempt to sketch a defense of the plain man's view that the job of the judge, qua judge is to apply the law." What seems to have lead to the other view is the pervasive role of policy and principle in the justification of judicial decisions. This is no argument, however, for the existence of discretion: "For while it must be admitted that judges are entitled to appeal to certain general policies and (...) principles, this by no means implies that they are entitled to exercise discretionary judgment in the formulation of such standards." With Dworkin, distinguishes weak and strong discretion: the former means merely final or controversial; the latter implying that judges are at some point free to reach decisions not controlled by authoritative standards. Agrees with Dworkin that non-rule standards are part of law. "Both Dworkin and I are in agreement that law is a system of entitlements, although, as we shall see, we differ as to what is their basis." "At any rate, we share the view that a litigant before a court of law is not in the position of one begging a favor from a potential benefactor, but rather in that of one demanding a particular decision as a matter of right, as something to which the law entitles him. Such a demand has two aspects: a claim that a right exists which the law recognizes; a claim that this right takes precedence over any competing legal rights or obligations involved. Let us refer to these two sorts of claims respectively as ones involving decisions as to recognition, and weight.:" Argues that we cannot distinguish between legal moral principles and non-legal moral principles without a rule of recognition. The same is true for the problem of establishing weight between various principles - here we have to consider how well a principle coheres with the institutional practice of a legal system. "[I]t is the distinctive feature of the institutionalized role of the judiciary, in contrast to the legislative, that it may not directly base decisions on substantive considerations of the value of competing social policies." "The theoretical possibility of the law being indeterminate with regard to what it requires...does not imply any correspondign indeterminacy with regard to what is required of the judge.". (shrink)

In recent years restitution scholars have expended considerable energy in attempting to reveal the logical structure of the law of proprietary remedies. That project advances on the assumption that the strange rhetoric that pervades this area of law can be stripped away to reveal restitutionary principles. However, the doctrines in question have proved resistant to such endeavors. An appreciation of why this is so requires recognition of the very real anxiety generated by the judicial readjustment of property rights that (...) takes place in this area of law. The use of metaphors, fictions and evidential presumptions that characterizes the law tracing, subrogation and the provision of proprietary relief for wrongs serves to assuage this anxiety by manufacturing the appearance that these remedies are perfectly conventional instances of the enforcement of pre-existing property or consensual transfers of property. However, these property rites have a logic of their own - a logic that influences and constrains the development of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the abstruse rhetoric found in this area and reveal the restitutionary substructure of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the substructure of the law of proprietary remedies. In Birks' work this process has merely resulted in old metaphors being replaced with new ones. Ultimately, we must accept that if re are to rationalize this area we must be prepared to engage directly with the policy issues that arise in this context. (shrink)

This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights (...) thesis is instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it. (shrink)

Public health ethics is a subfield of bioethics that focuses on population health. This study aims to conform the principles of biomedical ethics to Islamic values in the context of public health. It culturally helps to optimize health care delivery. The approach is based on the method of immanent critique. The principle of the common good in Islam has a rational justification to draw public interests and ward off harms. The rule of “no harm”, with an emphasis on the (...) preferability of preventing harm to increase benefits, is consistent with the principle of utility, intending to produce a maximum balance of benefit over harm in the context of public health. Thus, on the one hand, the government is obliged to prevent harm and improve public benefits and, on the other hand, as a steward of health and with reference to the article “limitation of the ownership dominance”, it has the right to protect public health with the least justifiable harm. Islam attention to human dignity, individual justice and good will in the rule of goodness implies that Islam, beyond distributive justice, knows that human flourishing and the cultivation of moral virtues are a requisite for the realization of social justice. The present study discusses about the adjustment of the principles of PHE to the principles of the Islamic jurisprudence and, at the same time, it explains why the optimal PH in Muslim societies requires research in order to define accurate indicators of benefit and harm based on the teachings of revelation and reason. (shrink)

The present situation of the HIV/aids epidemic is very grim in China. The probability of China becoming a country with a high prevalence of HIV/aids cannot be excluded because there have been factors which promote the wide spread of HIV if we fail to take timely action to prevent it at the opportune moment. However, China's HIV prevention policy is inadequate. Health professionals and programmers believed that they could take a conventional public health approach to cope with the HIV (...) epidemic. They simply ignored the fact that HIV infection is an epidemic so special that their approach is not effective to deter the epidemic. Many health professionals and programmers bypassed ethical issues that had emerged in the prevention of the HIV epidemic. Even some health educators, sexologists and officials believe that `AIDS is the punishment for promiscuity', and this belief has led to discrimination and stigmatization of AIDS patients, HIV positive people, their family members and high risk groups. Although homosexuality is not illegal, the police can always find any reason to detain homosexuals. A difficult ethical issue is about the laws prohibiting prostitution and drug use in China which force prostitutes and intravenous drug users underground, giving them no chance to access information, education and the services needed to protect them. The dilemma facing China is whether to stay with a restrictive policy for the reason of ideology cleansing or to turn to a more supportive policy. It is necessary to have some change in the ethical framework to evaluate the action in HIV prevention. Tolerance should be the first ethical principle. (shrink)

The present situation of the HIV/AIDS epidemic is very grim in China. The probability of China becoming a country with a high prevalence of HIV/AIDS cannot be excluded because there have been factors which promote the wide spread of HIV if we fail to take timely action to prevent it at the opportune moment. However, China's HIV prevention policy is inadequate. Health professionals and programmers believed that they could take a conventional public health approach to cope with the HIV (...) epidemic. They simply ignored the fact that HIV infection is an epidemic so special that their approach is not effective to deter the epidemic. Many health professionals and programmers bypassed ethical issues that had emerged in the prevention of the HIV epidemic. Even some health educators, sexologists and officials believe that `AIDS is the punishment for promiscuity', and this belief has led to discrimination and stigmatization of AIDS patients, HIV positive people, their family members and high risk groups. Although homosexuality is not illegal, the police can always find any reason to detain homosexuals. A difficult ethical issue is about the laws prohibiting prostitution and drug use in China which force prostitutes and intravenous drug users underground, giving them no chance to access information, education and the services needed to protect them. The dilemma facing China is whether to stay with a restrictive policy for the reason of ideology cleansing or to turn to a more supportive policy. It is necessary to have some change in the ethical framework to evaluate the action in HIV prevention. Tolerance should be the first ethical principle. (shrink)

In bioethics, the predominant categorization of various types of influence has been a tripartite classification of rational persuasion (meaning influence by reason and argument), coercion (meaning influence by irresistible threats—or on a few accounts, offers), and manipulation (meaning everything in between). The standard ethical analysis in bioethics has been that rational persuasion is always permissible, and coercion is almost always impermissible save a few cases such as imminent threat to self or others. However, many forms of influence fall into the (...) broad middle terrain—and this terrain is in desperate need of conceptual refining and ethical analysis in light of recent interest in using principles from behavioral science to influence health decisions and behaviors. This paper aims to address the neglected space between rational persuasion and coercion in bioethics. First, I argue for conceptual revisions that include removing the “manipulation” label and relabeling this space “nonargumentative]influence,” with two subtypes: “reason-bypassing” and “reason-countering.” Second, I argue that bioethicists have made the mistake of relying heavily on the conceptual categories themselves for normative work and instead should assess the ethical permissibility of a particular instance of influence by asking several key ethical questions, which I elucidate, that relate to (1) the impact of the form of influence on autonomy and (2) the relationship between the influencer and the influenced. Finally, I apply my analysis to two examples of nonargumentative influence in health care and health policy: (1) governmental agencies such as the Food and Drug Administration (FDA) trying to influence the public to be healthier using nonargumentative measures such as vivid images on cigarette packages to make more salient the negative effects of smoking, and (2) a physician framing a surgery in terms of survival rates instead of mortality rates to influence her patient to consent to the surgery. (shrink)

This review article offers a European perspective on the pluralistic, principles-based model of intellectual property (IP) advanced by Robert Merges in his book Justifying Intellectual Property. After introducing Merges’s model and theory of IP with reference to IP theories generally, other pluralistic legal models, and patterns of judicial reasoning in the patent and copyright fields, the article argues that European jurisprudence offers broad support for Merges’s operational model of IP, while also challenging certain aspects of his wider analysis. (...) They include his ‘one size fits all’ foundational theory of IP, his account of key IP rules and practices, and his choice and conception of IP’s midlevel principles. Through this critique the article draws attention to the utilitarian bias of Merges’s model; a bias which undermines its pluralistic claims, in part by undermining Merges’s own foundational theory of IP. The result is to underline the limits of a regime unconcerned with its own normative basis, and the need for more rather than less discussion of IP theory, including more work of the type that Merges’s book undertakes. (shrink)

This paper develops a virtue-account of legal reasoning which significantly differs from standard, principle-based, theories. A virtue approach to legal reasoning highlights the relevance of the particulars to sound legal decision-making, brings to light the perceptual and affective dimensions of legal judgment, and vindicates the relevance of description and specification to good legal reasoning. After examining the central features of the theory, the paper proposes a taxonomy of the main character traits that legal decision-makers need to (...) possess to successfully engage in legal reasoning. The paper concludes by discussing an array of strategies in legal education, institutional design, and legal culture that can be put in place to work virtue in legal decision-making. (shrink)

As Kant claimed in the Groundwork, and as the idea has been developed by Korsgaard 1997, Bratman 1987, and Broome 2002. This formulation is agnostic on whether reasons for ends derive from our desiring those ends, or from the relation of those ends to things of independent value. However, desire-based theorists may deny, against Hubin 1999, that their theory is a combination of a principle of instrumental transmission and the principle that reasons for ends are provided by desires. (...) Instead, they may say, there is just one principle, a principle of, if you will, instrumental transmutation: if one desires the end, then one has reason to take the means. See the discussion of General Production, in section 8, for a doubt about this. (shrink)

Perhaps the best approach to the Chinese conception of reason is to focus on the concept li, commonly translated as “principle,” “pattern,” or sometimes “reason.” While these translations in context are perhaps the best, having an explication of the uses of li is desirable and instructive for understanding some main problems of Chinese philosophy. Because there is no literary English equivalent, one cannot assume that li has a single, easily comprehensible use in Chinese discourse. This assumption is especially problematic (...) when it comes to appreciating the basic concerns of Confucian ethics. A closer examination of the uses of li and “principle” reveals a complexity that cannot be captured by a simple formula. Apart from the question whether li and “principle” are functionally equivalent, one may also ask whether li in Confucian ethics can be properly considered a context‐independent notion in the way that “principle” can. For a contemporary Confucian moral philosopher, Confucian ethics is more plausibly viewed as a form of virtue ethics. Absent an explanation of the uses of li, the translation of li as “principle” unavoidably leads to such misleading questions as: “What are the principles of Chinese or Confucian ethics?” “If such principles exist, do they serve as premises for the derivation of moral rules?” “Are Confucian principles universal or relative?” While these questions are fundamental in Western moral theory, their importance for Confucian ethics depends on a prior consideration of the status of principles in Confucian ethics. (shrink)

The judiciary is a key policy actor that is involved in deciding health rights and policy by intervening in the policy process through a variety of judicial mechanisms, yet the appropriate extent of its involvement remains contentious. Taking the competence objection seriously requires understanding it as an epistemic problem about how courts assess empirical and scientific evidence in order to competently adjudicate controversial health claims. This paper examines recent advances in social epistemology to develop insights for (...) the epistemic competence of the judiciary from a system‐oriented approach. I outline three epistemic features that set the judiciary and the judicial decision‐making process apart from other types of decision‐makers in health policy: the distribution of epistemic power, the epistemic authority of a justified believer, and the principle of disinterestedness. Finally, I relate these insights back to the judicial decision‐making process with a specific focus on recent court decisions in health rights and health policy in Chile. (shrink)

Reason and Rationality in Health and Human Services Delivery is the first book to discuss the topic of decisionmaking and services from a multidisciplinary approach. It uses theory and social considerations, not just technology, as a basis for improved services. Health and human service students and professionals will learn how to form rational and reasonable decisions that take their clients'cultural backgrounds into consideration when identifying an illness or appropriating any kind of intervention. With a particular emphasis on theories, models, organizational (...) settings, technologies, and practitioner training methods that lead to culturally sensitive decisions, Reason and Rationality will help you deliver efficient and improved medical and social services to clients from all ethnic backgrounds. Recognizing reason as the centerpiece of most of Western philosophy, this text reveals how our idea of truth, fact, and order are wrongly thought to be universal; yet, Western principles are continually used in the decision-making process for health and social services. Focusing on the policy implications of decisionmaking in medical and social service settings, this text works to incorporate a broad range of factors into the reasoning process, such as cultural traditions and beliefs, that will result in better treatment for patients. Giving you suggestions and strategies for upgrading reasoning and decision-making processes and applying them to every area of service, Reason and Rationality discusses different themes that will help you improve services to patients, such as: the rationale currently used to justify decision-making strategies concerning medical and human services using computer technology to make clinical assessments revising administrative structure, management theories, and organizational strategies so that decision-making processes enhance the overall quality of service delivery how the practitioner/patient relationship is important in choosing the proper treatment soliciting community-based input to assess the public's health and human service needs in order to lessen political involvement in decision-making stages In addition, Reason and Rationality provides information and examples that show why you should consider the "life-world"--the values, beliefs, and commitments of a culture's history-- as the key to understanding the powers of reasoning that specify parameters of health and illness. (shrink)

This book fills a gap in the literature on the Precautionary Principle by placing the principle within the wider context of precautionary reasoning and uses philosophical arguments and case studies to demonstrate when it does—and does not—apply. The book invites the reader to take a step back from the controversy surrounding the Precautionary Principle and consider the overarching rationales for responding to threats to the environment or public health. It provides practical guidance and probing insight for (...) the intended audience, including scholars, students, journalists, and policymakers. (shrink)

Background Even though we are now well into the 21st century and notwithstanding all the abuse to individuals involved in clinical studies that has been documented throughout History, fundamental ethical principles continue to be violated in one way or another. Discussion Here are some of the main factors that contribute to the abuse of subjects participating in clinical trials: paternalism, improper use of informed consent, lack of strict ethical supervision, pressure exerted by health institutions to increase the production of scientific (...) material, and the absence of legislation regarding ethics in terms of health care and research. Are researchers ready to respect fundamental ethical principles in light of the ample window of information provided by individual genomes, while defending the rights of the subjects participating in clinical studies as a major priority? Summary As one of the possible solutions to this problem, education regarding fundamental ethical principles is suggested for participants in research studies as an initial method of cognitive training in ethics, together with the promotion of ethical behavior in order to encourage the adoption of reasonable policies in the field of values, attitudes and behavior. (shrink)

This article addresses the use of foreign law in constitutional adjudication. We draw on the ideas of wide reflective equilibrium and public reason in order to defend an engagement model of comparative adjudication. According to this model, the judicial use of foreign law is justified if it proceeds by testing and mutually adjusting the principles and rulings of our constitutional doctrines against reasonable alternatives, as represented by the principles and rulings of other reasonable doctrines. By this, a court points (...) to a wide reflective equilibrium, justifying its own interpretations with reasonable arguments, i.e. arguments that are acceptable from the perspectives defined by other constitutional doctrines, as endorsed by other courts. The point of a judicial engagement of this sort is to work out an overlap between different, reasonable, doctrines in the judicial forum, as part of a liberal forum of public reason. Here, the exercise of public reason filters out the premises of comprehensive doctrines so as to leave us in the region of an overlapping consensus: a region of mid-level principles that can be shared, notwithstanding the fact of legal pluralism. (shrink)

In his response to the question about the conditions of the possibility of dependable cognition Kant first points to the faculties of the cognitive powers and subsequently lists the criteria and normative foundations of knowledge—a system of forms, concepts and principles. Kant primarily seeks the possibilities of experience-independent cognition, the logical criteria governing the possibility of cognition as such. The paper outlines the creation of the systemic union of the primal concepts and principles of pure reason, which is necessary for (...) the creation of knowledge. In other words, it follows the constitution phases of the cognition system: apperception, experience, self-consciousness and the principles of reason. The principles of reason ultimately give systemic unity to humancognitive powers—and, in effect, the human world of experience and cognition. It is this systemic unity which makes cognition science—or, in other words, pure reason—as it constitutes a specific system and is able to create science understood as the systemic unity of specific fields. (shrink)

Moral dilemmas and ethical inquiry -- Unavoidable topics in ethical theory -- Nurses and clients -- Recurring ethical issues in interprofessional relationships -- Ethical dilemmas among nurses -- Personal responsibility for institutional and public policy -- Cost containment, justice, and rationing.

Scholars in philosophy, law, economics and other fields have widely debated how science, environmental precaution, and economic interests should be balanced in urgent contemporary problems, such as climate change. One controversial focus of these discussions is the precautionary principle, according to which scientific uncertainty should not be a reason for delay in the face of serious threats to the environment or health. While the precautionary principle has been very influential, no generally accepted definition of it exists and critics (...) charge that it is incoherent or hopelessly vague. This book presents and defends an interpretation of the precautionary principle from the perspective of philosophy of science, looking particularly at how it connects to decisions, scientific procedures, and evidence. Through careful analysis of numerous case studies, it shows how this interpretation leads to important insights on scientific uncertainty, intergenerational justice, and the relationship between values and policy-relevant science. (shrink)

Justice, one of the four Beauchamp and Childress prima facie basic principles of biomedical ethics, is explored in two excellent papers in the current issue of the journal. The papers stem from a British Medical Association essay competition on justice and fairness in medical practice and policy. Although the competition was open to all comers, of the 235 entries both the winning paper by Alistair Wardrope1 and the highly commended runner-up by Zoe Fritz and Caitríona Cox2 were written by (...) practising doctors—a welcome indication of the growing importance being accorded to philosophical reflection about medical practice and practices within medicine itself. Both papers are thoroughly thought provoking and represent two very different approaches to the topic. Each deserves a careful read. The competition was a component of a BMA 2019/2020 ‘Presidential project’ on fairness and justice and asked candidates to ‘use ethical reasoning and theory to tackle challenging, practical, contemporary, problems in health care and help provide a solution based on an explained and defended sense of fairness/justice’. In this guest editorial I’d like to explain why, in 2018 on becoming president-elect of the BMA, I chose the theme of justice and fairness in medical ethics for my 2019–2020 Presidential project—and why in a world of massive and ever-increasing and remediable health inequalities biomedical ethics requires greater international and interdisciplinary efforts to try to reach agreement on the need to achieve greater ‘health justice’ and to reach agreement on what that commitment actually means and on what in practice it requires. First, some background. As president I was offered the wonderful opportunity to pursue, with the organisation’s formidable assistance, a ‘project’ consistent with the BMA’s interests and values. As a hybrid of general medical practitioner and philosopher/medical ethicist, and as a firm defender of the Beauchamp …. (shrink)

The idea that research with human participants should benefit society has become firmly entrenched in various regulations, policies, and guidelines, but there has been little in-depth analysis of this ethical principle in the bioethics literature. In this paper, I distinguish between strong and weak versions and the social benefits principle and examine six arguments for it. I argue that while it is always ethically desirable for research with human subjects to offer important benefits to society, the reasonable expectation (...) of substantial public benefit should be a necessary condition for regarding research as ethical only when it imposes more than minimal risks on non-consenting subjects; or it is supported by public resources. (shrink)

Normative political theorists have been growing more and more aware of the many difficult questions raised by the discretionary power inevitably left to public administrators. This article aims to advance a novel normative principle, called ‘principle of restraint’, regulating reform of established administrative agencies. I argue that the ability of public administrators to exercise their power in accordance with the requirements of public reason is protected by an attitude of restraint on the part of potential reformers. Specifically, they (...) should refrain from any reform of an administrative agency that involves a switch to a considerably more loosely interconnected system of values underlying the work of that agency. To illustrate the importance of the principle of restraint, I examine a case from British health policy, showing that a recent reform of the National Institute for Health and Care Excellence well exemplifies the serious problems brought by any violation of that principle. (shrink)

This paper sketches a framework for the separation of church and state and, with the framework in view, indicates why a government’s maintaining such separation poses challenges for balancing two major democratic ideals: preserving equality before the law and protecting liberty, including religious liberty. The challenge is particularly complex where healthcare is either provided or regulated by government. The contemporary problem in question here is the contraception coverage requirement in the Obama Administration’s healthcare mandate. Many institutions have mounted legal challenges (...) to the mandate on grounds of religious freedom. The paper proposes a number of interconnected principles toward a resolution of the problem: for the institutional realm, specific principles for church-state separation and a principle concerning the protection of citizens’sense of identity; and for the ethics of citizenship in the conduct individuals, principles that provide an adequate place for natural (thus secular) reason in lawmaking and political decisions. (shrink)

To practise ‘fairly and justly’ a clinician must balance the needs of both the many and the few: the individual patient in front of them, and the many unseen patients in the waiting room, and in the county. They must consider the immediate clinical needs of those in the present, and how their actions will impact on future patients. The good medical practice guidance ‘Make the care of your patient your first concern’ provides no guidance on how doctors should act (...) when they care for multiple patients with conflicting needs. Moreover, conflicting needs extend far past simply those between different patients. At an organisational level, financial obligations must be balanced with clinical ones; the system must support those who work within it in a variety of roles; and, finally, in order for a healthcare service to be sustainable, the demands of current and future generations must be balanced.The central problem, we propose, is that there is no shared philosophical framework on which the provision of care or the development of health policy is based, nor is there a practical, fair and transparent process to ensure that the service is equipped to deal justly with new challenges as they emerge. Many philosophers have grappled with constructing a set of principles which would lead to a ‘good’ society which is just to different users; prominent among them is Rawls.Four important principles can be derived using a Rawlsian approach: equity of access, distributive justice, sustainability and openness. However, Rawls’ approach is sometimes considered too abstract to be applied readily to policymaking; it does not provide clear guidance for how individuals working within existing institutions can enact the principles of justice. We therefore combine the principles derived from Rawls with Scanlonian contractualism: by demanding that decisions are made in a way which cannot be ‘reasonably rejected’ by different stakeholders, we ensure that conflicting needs are considered robustly.We demonstrate how embedding this framework would ensure just policies and fair practice. We illustrate this by using examples of how it would help prevent injustice among different socioeconomic groups, prevent intergenerational injustice and prevent injustice in a crisis, for example, as we respond to new challenges such as COVID-19.Attempts to help individual doctors practise fairly and justly throughout their professional lives are best focused at an institutional or systemic level. We propose a practical framework: combining Scanlonian contractualism with a Rawlsian approach. Adopting this framework would equip the workforce and population to contribute to fair policymaking, and would ultimately result in a healthcare system whose practice and policies—at their core—were just. (shrink)

Several countries maintain universal health coverage, which implies responsibility to organize delivery formats of healthcare services and products for citizens. In Brazil, the health system has a principle of universal access for more than 30 years, but many deficiencies remain and the country observes a day practice for those seeking judicial decisions to determine provision of healthcare.

Academic publications of empirical public health research often entail recommendations for moral action that address practitioners and policy makers. These recommendations are regularly based on implicit moral judgments with the underlying reasons not explicitly stated. In this paper, we elaborate on the moral relevance of such judgments and the need to explain them in order to account for academic argumentation. We argue for an explicit reporting of bridge principles to increase the transparency of the reporting of public health research. (...) The reporting of bridge principles can inform readers, support them in understanding the relationship between empirical and normative claims in a specific paper, and may pave new ways for the rigorous reporting of empirical research that has moral implications. Furthermore, it can be used to classify studies to systematically address the justification for their argumentation. (shrink)

What does it mean to say that imagination plays a role in moral reasoning, and what are the theoretical and practical implications? Engaging with three traditions in moral theory and confronting them with three contexts of moral practice, this book offers a more comprehensive framework to think about these questions. The author develops an argument about the relation between imagination and principles that moves beyond competition metaphors and center-periphery schemas. He shows that both cooperate and are equally necessary to (...) cope with moral problems, and combines insights of different theories and disciplines to explore how this works in practice. (shrink)

Responsible Research and Innovation (RRI) has emerged as a science policy framework that attempts to import broad social values into technological innovation processes whilst supporting institutional decision-making under conditions of uncertainty and ambiguity. When looking at RRI from a ‘principled’ perspective, we consider responsibility and justice to be important cornerstones of the framework. The main aim of this article is to suggest a method of realising these principles through the application of a limited Rawlsian Difference Principle in the (...) distribution of public funds for research and innovation. There are reasons why the world's combined innovative capacity has spewed forth iPhones and space shuttles but not yet managed to produce clean energy or universal access to clean water. (Stilgoe 2013, xii) I derive great optimism from empathy's evolutionary antiquity. It makes it a robust trait that will develop in virtually every human being so that society can count on it and try to foster and grow it. It is a human universal. (de Waal 2009, 209) Responsible Research and Innovation (RRI) has emerged as a science policy framework that attempts to import broad social values into technological innovation processes whilst supporting institutional decision-making under conditions of uncertainty and ambiguity. In this respect, RRI re-focuses technological governance from standard debates on risks to discussions about the ethical stewardship of innovation. This is a radical step in Science & Technology (S&T) policy as it lifts the non-quantifiable concept of values into the driving seat of decision-making. The focus of innovation then goes beyond product considerations to include the processes and – importantly – the purposes of innovation (Owen et al. 2013, 34). Shared public values are seen as the cornerstone of the new RRI framework, while market mechanisms and risk-based regulations are of a secondary order. What are the values that could drive RRI? There are different approaches to the identification of public values. They can be located in democratically agreed processes and commitments (such as European Union treaties and policy statements) or they can be developed organically via public engagement processes. Both approaches have advantages and disadvantages. For instance, although constitutional values can be regarded as democratically legitimate, their application to specific technological fields can be difficult or ambiguous (Schroeder and Rerimassie 2015). On the other hand, public engagement can accurately reflect stakeholder values but is not necessarily free from bias and lobbyist agenda setting. We argue that if RRI is to be more successful in resolving policy dilemmas arising from poorly described and uncertain technological impacts, basic universal principles need to be evoked and applied. When looking at RRI from a ‘principled’ perspective, we consider responsibility and justice to be important cornerstones of the framework. One could describe them in the following manner: Research and innovation should be conducted responsibly. Publicly funded research and innovation should be focused fairly on socially beneficial targets. Research and innovation should promote and not hinder social justice. The main aim of this article is to suggest a method of realising these principles through the application of a limited Rawlsian Difference Principle in the distribution of public funds for research and innovation. This paper is in three parts. The first part discusses the above principles and introduces the Rawlsian Difference Principle. The second part identifies how RRI is currently applied by public funding bodies. The third part discusses the operationalisation of the Rawlsian Difference Principle in responsible funding decisions. (shrink)

Most Liberals hold that public policies ought always be justifiable by reference to public reasons; that citizens should also refrain from advocacy in the absence of such reasons; and that exclusively religious reasons cannot be public reasons. This is challenged by Paul Weithman and Christopher Eberle. Both argue that basic liberal principles permit citizens in some circumstances to advance exclusively religious reasons, and in particular that Rawls's notions of reasonableness (Weithman) and the strains of commitment (Eberle) can be used in (...) defence of this position. I argue that neither makes out his case, and that no plausible case has been made against the standard Liberal view. (shrink)

How developing a more expansive, non-formal conception of reason produces richer ethical understandings of human situations, explored and illustrated with many real examples. In Re-Reasoning Ethics, Barry Hoffmaster and Cliff Hooker enhance and empower ethics by adopting a non-formal paradigm of rational deliberation as intelligent problem-solving and a complementary non-formal paradigm of ethical deliberation as problem-solving design to promote human flourishing. The non-formal conception of reason produces broader and richer ethical understandings of human situations, not the simple, constrained depictions (...) provided by moral theories and their logical applications in medical ethics and bioethics. Instead, it delivers and vindicates the moral judgment that complex, contextual, and dynamic situations require. Hoffmaster and Hooker demonstrate how this more expansive rationality operates with examples, first in science and then in ethics. Non-formal reason brings rationality not just to the empirical world of science but also to the empirical realities of human lives. Among the many real cases they present is that of how women at risk of having children with genetic conditions decide whether to try to become pregnant. These women do not apply the formal principle of maximizing expected utility (as advised by genetic counselors) and instead imagine scenarios of what their lives could be like with an affected child and assess whether they could accept the worst of these scenarios. Hoffmaster and Hooker explain how moral compromise and a liberated, extended, and enriched reflective equilibrium expand and augment rational ethical deliberation and how that deliberation can rationally design ethical practices, institutions, and policies. (shrink)

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications (...) for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)

I shall be concerned in this paper with some philosophical puzzles raised by so-called “wrongful life” suits. These legal actions are obviously of great interest to lawyers and physicians, but philosophers might have a kind of professional interest in them too, since in a remarkably large number of them, judges have complained that the issues are too abstruse for the courts and belong more properly to philosophers and theologians. The issues that elicit this judicial frustration are those that require (...) the application to border-line cases of such philosophically interesting concepts as acting, causing, and the one that especially interests me, harming. I first became interested in the concept of harming in my work on the moral limits of the criminal law, where I had to come to terms with John Stuart Mill's famous “harm principle”–the principle that it is always a good reason in support of a criminal prohibition, indeed, the only legitimate reason, that it will prevent harm to persons other than the actor. I could not very well criticize that principle until I decided what the word “harm” must mean in its formulation. I gave what I took to be the requisite analysis of harm in my book Harm to Others. Here I wish to improve that analysis, examine its implications for civil as well as criminal liability, and test it on conceptually hard cases, especially cases of prenatal harming, that is, cases in which the wrongful causative conduct occurs before the victim's birth, and the harmed state that is its upshot consists in being born in an impaired condition. (shrink)

The four principles approach to medical ethics plus specification is used in this paper. Specification is defined as a process of reducing the indeterminateness of general norms to give them increased action guiding capacity, while retaining the moral commitments in the original norm. Since questions of method are central to the symposium, the paper begins with four observations about method in moral reasoning and case analysis. Three of the four scenarios are dealt with. It is concluded in the “standard” (...) Jehovah’s Witness case that having autonomously chosen the authority of his religious institution, a Jehovah’s Witness has a reasonable basis on which to refuse a recommended blood transfusion. The author’s view of the child of a Jehovah’s Witness scenario is that it is morally required—not merely permitted—to overrule this parental refusal of treatment. It is argued in the selling kidneys for transplantation scenario that a fair system of regulating and monitoring would be better than the present system which the author believes to be a shameful failure. (shrink)

In the United States, prohibitionist policies are used as the primary approach to combat the negative effect of substance use on society. An extensive academic literature spanning the disciplines of economics, political science, and multiculturalism documents the great social costs of the United States’ “War on Drugs” both nationally and internationally. These costs come with at best marginal effect on substance abuse and other crimes linked to the drug trade. In many cases, there is a reason to believe that these (...) policies exacerbate the problems they aim to address. This article explores psychologists’ ethical commitments to social change concerning such drug policy, given the field of psychology’s expanding commitment to social justice. We examine arguments regarding the boundaries between psychologists’ personal and professional ethics with regard to political participation. Using drug prohibition as an exemplar, we suggest that many psychologists’ political actions and professional ethics may be misaligned. Ultimately, we conclude that the endorsement of prohibitionist drug policies is in direct conflict with the guiding ethical principles put forth by the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct. (shrink)

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications (...) for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons. (shrink)

In a provocative recent study, Bent Flyvbjerg makes a sustained case for the need for a revitalized conception of social inquiry with direct input into the policy-making and planning process, contending that it is only in this way that social science can be made to matter again. Flyvbjerg further contends that to do justice to the reality of contemporary policy forums, we need to embrace a thoroughgoing dialogical conception of the policy-making process itself. To vindicate this contention (...) and theoretically ground the envisaged dialogical ideal, Flyvbjerg draws extensively on the work of both Habermas and Foucault. In so doing, he makes a valuable contribution to delineating the requirements that contemporary policy forums must meet if participants can judiciously claim to be engaging in decision-making in the best interests of the community at large. However, the overall tenability of Flyvbjerg’s proposal is diminished because, motivated by his convictions about the importance of power relations in determining real-world policy outcomes, he engages in a one-sided defence of the merits of Foucault’s contribution to the neglect of Habermas’s input in informing us about the ground rules needed to structure policy debate to ensure an equitable outcome. The aim of the present article is to redress this imbalance. To this end, I argue that given certain weaknesses in Foucault’s formulation of his position, we must draw on Habermas as a corrective if we are to succeed in advancing the dialogical ideal envisaged by Flyvbjerg. Beyond defending the need for a complementary reading of these theorists, I undertake to facilitate the implementation of the envisaged dialogical ideal by further elucidating the discursive conditions needed to underpin it. (shrink)

The Bermuda Principles for DNA sequence data sharing are an enduring legacy of the Human Genome Project. They were adopted by the HGP at a strategy meeting in Bermuda in February of 1996 and implemented in formal policies by early 1998, mandating daily release of HGP-funded DNA sequences into the public domain. The idea of daily sharing, we argue, emanated directly from strategies for large, goal-directed molecular biology projects first tested within the “community” of C. elegans researchers, and were introduced (...) and defended for the HGP by the nematode biologists John Sulston and Robert Waterston. In the C. elegans community, and subsequently in the HGP, daily sharing served the pragmatic goals of quality control and project coordination. Yet in the HGP human genome, we also argue, the Bermuda Principles addressed concerns about gene patents impeding scientific advancement, and were aspirational and flexible in implementation and justification. They endured as an archetype for how rapid data sharing could be realized and rationalized, and permitted adaptation to the needs of various scientific communities. Yet in addition to the support of Sulston and Waterston, their adoption also depended on the clout of administrators at the US National Institutes of Health and the UK nonprofit charity the Wellcome Trust, which together funded 90% of the HGP human sequencing effort. The other nations wishing to remain in the HGP consortium had to accommodate to the Bermuda Principles, requiring exceptions from incompatible existing or pending data access policies for publicly funded research in Germany, Japan, and France. We begin this story in 1963, with the biologist Sydney Brenner’s proposal for a nematode research program at the Laboratory of Molecular Biology at the University of Cambridge. We continue through 2003, with the completion of the HGP human reference genome, and conclude with observations about policy and the historiography of molecular biology. (shrink)

In the seventh and most recent edition of their classic book, Principles of Biomedical Ethics, Tom Beauchamp and James Childress define a virtue as a character trait that is “socially valuable and reliably present” and a moral virtue as such a trait that is also both “dispositional” and “morally valuable”. The virtues that they single out as “focal” within biomedical ethics are compassion, discernment, trustworthiness, integrity, and conscientiousness. Not all is well in their treatment of virtue. Beauchamp and Childress seem (...) to worry that an ethical theory in which virtues are fundamental will neglect duties, rights, and societal needs. Further, they insist that there is no reason to think that, within ethical theory, one family of ethical concepts is the most important, nor that one theoretical approach is correct, or even superior to others. I will try to show, that there are strong reasons to see language, concepts, and matters of virtue as fundamental within normative ethical theory, both generally and in such specialized subareas as medical ethics. These reasons reveal themselves when we analyze concepts at the core of the alternative approaches to theorizing ethics that Beauchamp and Childress identify. (shrink)

Historically, judicial enforcement of constitutional rights to health care has played a fairly limited role in enabling access to health care, a trend particularly prevalent in North America, and reflected in many other regions. This trend is due in part to judicial resistance to recognizing socioeconomic rights like health as appropriately legal, or as appropriately enforceable in light of the doctrine of separation of powers. This resistance is evident in judicial deference to social and economic policy, (...) a reluctance to view socioeconomic claims as invoking “fundamental values” that courts consider themselves authorized to protect: and a real reluctance to recognize and enforce “positive” obligations pertaining to social welfare. As a result, health has often fallen largely into the political rather than legal sphere, and domestic courts have been relatively reluctant to review health policies from a human rights perspective, given the belief that doing so would exceed the appropriate democratic function of the judiciary. (shrink)

Historically, judicial enforcement of constitutional rights to health care has played a fairly limited role in enabling access to health care, a trend particularly prevalent in North America, and reflected in many other regions. This trend is due in part to judicial resistance to recognizing socioeconomic rights like health as appropriately legal, or as appropriately enforceable in light of the doctrine of separation of powers. This resistance is evident in judicial deference to social and economic policy, (...) a reluctance to view socioeconomic claims as invoking “fundamental values” that courts consider themselves authorized to protect: and a real reluctance to recognize and enforce “positive” obligations pertaining to social welfare. As a result, health has often fallen largely into the political rather than legal sphere, and domestic courts have been relatively reluctant to review health policies from a human rights perspective, given the belief that doing so would exceed the appropriate democratic function of the judiciary. (shrink)

The so-called “Harvard Team Report,” commissioned by the Hong Kong government (Hong Kong SAR Government, 1999), suggests significant institutional changes to the local health care system, including a partial shift of the financial burden directly to the citizens. I argue that 1) the Report's adoption of the contextuality principle as its research framework encounters practical problems in collecting data for a reliable analysis; 2) the existing health care system already satisfies the Report's first guiding principle; 3) the Report's (...) employment of the “working assumption” of the government (i.e., not increasing its financial support of health care) as its second guiding principle is questionable, for the share of the percentage of GDP as represented by the existing system (4.6% in 1996) is small enough; and 4) because of 3), the Report is unnecessarily constrained in its choices of considered options and seems to overlook some feasible ones. In conclusion, the methodological reasonableness of the Report is questioned. (shrink)

In a recent response to our paper on developing a philosophical framework to guide the design and delivery of a just health service, Sarela raises several objections. We feel that although Sarela makes points which are worthy of discussion, his critique does not undermine either the need for, or the worth of, our proposed model. First, the law does not negate the need for ethics in determining just healthcare policy. Reliance on legal processes can drive inappropriate focus on ensuring (...) policies avoid judicial review, as opposed to ensuring they are truly just; the law affords protection against unjust policies but does not put a commitment to avoiding them at the heart of policy-making. We defend the need for Scanlonian supplementation by emphasising the practical value of adding a step based on reasonable rejection, particularly in ensuring that the views of vulnerable stakeholders are robustly considered. We discuss the similarities and differences between the work of Daniels and Sen in considering the relationship between health and opportunity, concluding that Sen’s capability approach is both valuable and compatible with our proposed model. Finally, the practical use of our model requires consideration of what constitutes a reasonable person. Our model is explicitly intended to help develop a healthcare system which is just to all its users. With this in mind, we suggest that those involved in decision-making should meet Scanlon’s definition of reasonable: they should be motivated to justify their actions to, and seek agreement with, others. (shrink)

The article addresses the pervasive global challenge of delayed justice, emphasizing its role as a catalyst for widespread judicial reforms. The study defines international and national court approaches to reasonable trial durations by employing systematic and comparative legal methods. It delves into essential technology courts and parties use to ensure timely proceedings, categorizing associated risks and problems. The authors advocate for the multi-door courthouse system, illustrating its efficacy in reducing delays. Furthermore, the article classifies technologies facilitating reasonable trial durations, (...) acknowledging and offering solutions for the challenges they present. This research contributes to the dynamic landscape of judicial reform, offering a holistic perspective on the multifaceted aspects of timely justice. (shrink)

Who gets to decide what it means to live a healthy lifestyle, and how important a healthy lifestyle is to a good life? As more governments make preventing obesity and diet-related illness a priority, it has become more important to consider the ethics and acceptability of their efforts. When it comes to laws and policies that promote healthy eating—such as special taxes on sugary drinks or programs to encourage consumption of fruits and vegetables—critics argue that these policies are paternalistic, and (...) that they limit individual autonomy over food choices. In our book Healthy Eating Policy and Political Philosophy: A Public Reason Approach (Barnhill and Bonotti 2022), we argue that both paternalistic justifications for healthy eating efforts and anti-paternalistic arguments against them can be grounded in perfectionist views that overly prioritize some values over others. We therefore propose a more inclusive, public reason approach to healthy eating policy that will be appealing to those who take pluralism and cultural diversity seriously, by providing a framework through which different kinds of values, including but not limited to autonomy and health, can be factored into the public justification for healthy eating efforts. Additionally, the book adopts a ‘farm to fork’ approach to the ethics of healthy eating efforts: it engages with theories and debates in political philosophy, considers the implications of different theoretical positions for healthy eating efforts, and then develops a framework for assessing policies that can be used by researchers and policymakers. As well as offering a novel normative analysis of healthy eating policy, we also provide a theoretical framework that will be applicable beyond healthy eating policy to a wide range of public policy scenarios. We are extremely grateful to the contributors to this symposium for their thoughtful commentaries on our book. In this article, we provide a critical reflection on the issues they raise with regard to some key aspects of our analysis. (shrink)

Dongchundang Songjoongil (1606-1672) was a scholar who represented Gihoyeahak and Sanlim (山林) influencing the society of Chosŏn dynasty since the middle of 17th century. This report focus on its contemporary purport and reconciliation spirit on the Kyoung (敬) of Dongchundang. The Kyoung is the core idea that elucidates Dongchundang's philosophy and its characteristic. Dongchundang tried to continue to live the life of 'according knowledge and action' (知行一致) and dreamed the world of 'harmonization but not same' (和而不同) which indicates the (...) class='Hi'>principle of heaven, meaning the harmony never following suit without reflection and a just and great cause, going through with his original idea through the Kyoung. In addition, Dongchundang expanded the Kyoung from personal existential problems to social ethic practical ones in the viewpoint of more reason than vitality, and aimed to build the ethic kingdom that came the harmony andreconciliation of all the communities together, interacting his subjectivity and the universal. The Kyoung and reconciliation spirit of Dongchundang is the orthodoxy of Dohak(道學), and it made him live moral intention and through real life and summarized the manner and spirit pursuing the just and great cause beyond factions. In this sense, Dongchundang's philosophy is the concentration of the Kyoung and philosophical expression of reconciliation spirit. As the peculiarity of Dongchundang's philosophy is based on the Kyoung, it is the everlasting principle of what one should do and practice in human life. (shrink)

Illuminates legal reasoning -- and its justification At least since plato and Aristotle, thinkers have pondered the relationship between philosophical arguments and the "sophistical" arguments offered by the Sophists -- who were the first professional lawyers. Judges wield substantial political power, and the justifications they offer for their decisions are a vital means by which citizens can assess the legitimacy of how that power is exercised. However, to evaluate judicial justifications requires close attention to the method of (...) class='Hi'>reasoning behind decisions. This new collection illuminates and explains the political and moral importance in justifying the exercise of judicial power. Explores enduring questions Focusing on work over the past century, the essays address important recurring questions, such as: When a judge or a lawyer reasons to a conclusion about what is legally required in a given case, must he also ask what is morally required? To what extent do a judge's personal, political, or moral biases affect his legal reasoning? What is the impact of such biases? Can all such biases be avoided? Is legal reasoning similar to reasoning in mathematics, logic, and linguistics, the physical sciences, the social sciences, or literature and history? Do formal logical modes of argument play any roles in legal reasoning? Solid coverage, well organized The articles were chosen to present some of the most influential works on the topic, as well as less familiar works that are thought provoking and informative. Each volume also offers a representative range of theoretical approaches to its topic, contains an introduction that locates the subject within the larger framework oftheories of legal reasoning and jurisprudence, and includes bibliographical notes on further readings. Many 19th century legal theorists argued that deduction is the central mode of legal reasoning, and that legal argument is like a deductive proof in mathematics or logic. They were attracted to this "deductivist" concept because it suggested that legal reasoning could be politically and morally neutral. This volume brings together some of the most thought-provoking articles on both sides of the debate. It also contains several leading articles that explain the role of probabilistic judgments and presumptions in various types of legal arguments, including the laws of evidence and criminal procedure. The collection is a solid introduction to the basic modes of logical argument in legal reasoning. (shrink)