23andMe not only sells genetic testing but also uses customer data in its R&D activities and commercial partnerships. This raises questions about transparency and informed consent. Based on a online survey conducted in 2017–18, we examine attitudes of 368 customers of 23andMe toward the company's use of their data. Our findings point at divides in the context of customers' awareness of the two-sided business model of DTC genetics and their attitudes toward consent. While most of our respondents (68%) were aware (...) that 23andMe could store their data and use it for certain purposes without their consent, over 40% were not aware that using and sharing customer data was part of the business model. Views were also divided regarding what type of consent was most appropriate. We explore the implications of these divides for participatory research and for the importance of transparency and trust in commercially-driven scientific knowledge production. (shrink)

This book is a comprehensive, empirically-grounded exploration of the relationship between bioethics, culture, and the perspective of being affected. It provides a new outlook on how complex "bioethical" issues become questions of everyday life. The authors focus on two contexts, genetic testing and end-of-life care, to locate and demonstrate emerging themes of responsibility, such as self-responsibility, responsibility for kin, and the responsibility of society. Within these themes, the duty to know versus the right not to know one's genetic fate (in (...) the context of genetic testing), or the sanctity of life versus self-determination (in the context of end of life care) are identified as culturally embedded dilemmas that are very much relevant for lay persons. Furthermore, cultural factors such as religion, history, utopian and dystopian views of biomedical technologies, outlooks on the body and on health/illness, and citizenship are examined. Health issues are increasingly becoming a question of assessing risk and responsibility: How can we better prepare ourselves for the future? We all make such assessments in a way that combines personal inclinations, professional recommendations, and cultural framings. There is still much to be learned about the interplay between these three dimensions. (shrink)

The routinization of prenatal diagnosis is the source of bioethical and policy debates regarding choice, autonomy, access, and protection. To understand these debates in the context of cultural diversity and moral pluralism, we compare Israel and Germany, focusing on two recent repro-genetic “hot spots” of such policy-making at the beginning of life: pre-implantation genetic diagnosis and non-invasive prenatal genetic testing, two cutting-edge repro-genetic technologies that are regulated and viewed very differently in Germany and Israel, reflecting different medicolegal policies as well (...) as public and bioethical considerations. First, we compare policy-making in the context of PGD for HLA typing, used to create sibling donors, approved in Israel under specific conditions while prohibited in Germany. Second, we compare policy-making in the context of NIPT, which came under fire in Germany, while in Israel there has been little public debate about it. Both countries justify their contrasting policies as reflecting a concern for the well-being and care of the embryo/child, thus highlighting different concepts of embryo/child protection, autonomy, family relations, and the impact of religion and history on the promotion/protection of life. We use the juxtaposition of PGD and NIPT to highlight some inconsistencies in policies concerning the protection of extra- and intra-corporeal embryos. We conclude by drawing on the comparison to show how national variations exist alongside co-evolution. (shrink)

The professional and institutional responsibility for handling genetic knowledge is well discussed; less attention has been paid to how lay people and particularly people who are affected by genetic diseases perceive and frame such responsibilities. In this exploratory study we qualitatively examine the attitudes of lay people, patients and relatives of patients in Germany and Israel towards genetic testing. These attitudes are further examined in the national context of Germany and Israel, which represent opposite regulatory approaches and bioethical debates concerning (...) genetic testing. Three major themes of responsibility emerged from the inter-group and cross-cultural comparison: self-responsibility, responsibility for kin, and responsibility of society towards its members. National contrast was apparent in the moral reasoning of lay respondents concerning, for example, the right not to know versus the duty to know (self-responsibility) and the moral conflict concerning informing kin versus the moral duty to inform (responsibility for kin). Attitudes of respondents affected by genetic diseases were, however, rather similar in both countries. We conclude by discussing how moral discourses of responsibility are embedded within cultural (national, religious) as well as phenomenological (being affected) narratives, and the role of public engagement in bioethical discourse. (shrink)

End-of-life decision making constitutes a major challenge for bioethical deliberation and political governance in modern democracies: On the one hand, it touches upon fundamental convictions about life, death, and the human condition. On the other, it is deeply rooted in religious traditions and historical experiences and thus shows great socio-cultural diversity. The bioethical discussion of such cultural issues oscillates between liberal individualism and cultural stereotyping. Our paper confronts the bioethical expert discourse with public moral attitudes. The paper is based on (...) a qualitative study comprising 12 focus group discussions with religious and secular persons in the USA, Germany, and Israel. Considering the respective socio-political and legal frameworks, the thematic analysis focuses on moral attitudes towards end-of-life decision making and explores the complex interplay between individual preferences, culture, and religion. Our findings draw attention to the variety and complexity of cultural and religious aspects of end-of-life decision making. Although there is local consensus that goes beyond radical individualism, positions are not neatly matched with national cultures or religious denominations. Instead, the relevance of the specific situatedness of religious beliefs and cultural communities becomes visible: Their status and role in individual situations, for example, as consensual or conflicting on the level of personal perspectives, family relationships, or broader social contexts, e.g., as a majority or minority culture within a political system. As the group discussions indicate, there are no clear-cut positions anchored in “nationality,” “culture,” or “religion.” Instead, attitudes are personally decided on as part of a negotiated context representing the political, social and existential situatedness of the individual. Therefore, more complex theoretical and practical approaches to cultural diversity have to be developed. (shrink)

Patient organizations are increasingly involved in national and international bioethical debates and health policy deliberations. In order to examine how and to what extent cultural factors and organizational contexts influence the positions of patient organizations, this study compares the positions of German and Israeli patient organizations (POs) on issues related to end-of-life medical care. We draw on a qualitative pilot study of thirteen POs, using as a unit of analysis pairs comprised of one German PO and one Israeli PO that (...) were matched on the basis of organizational category. Bioethical positions that emanated from the interviews concerned advance directives—general views, recent legal framework, and formalization; as well as active and passive euthanasia, withholding and withdrawing of treatment, and physician-assisted suicide. In addition to the unifying, within-country impact of cultural factors, we found that constituency-based organizations and partner organizations in both countries often share common views, whereas disease-based support organizations have very heterogeneous positions. We conclude by discussing how organizational contexts provide a source of uniformity as well as diversity in the positions of POs. (shrink)

BackgroundThe introduction and wide application of non-invasive prenatal testing (NIPT) has triggered further evolution of routines in the practice of prenatal diagnosis. ‘Routinization’ of prenatal diagnosis however has been associated with hampered informed choice and eugenic attitudes or outcomes. It is viewed, at least in some countries, with great suspicion in both bioethics and public discourse. However, it is a heterogeneous phenomenon that needs to be scrutinized in the wider context of social practices of reproductive genetics. In different countries with (...) their different regulatory frameworks, different patterns of routines emerge that have different ethical implications.This paper discusses an ethics of routines informed by the perspectives of organizational sociology and psychology, where a routine is defined as a repetitive, recognizable pattern of interdependent organizational actions that is carried out by multiple performers. We favour a process approach that debunks the view – which gives way to most of the concerns – that routines are always blindly performed. If this is so, routines are therefore not necessarily incompatible with responsible decision-making. Free and informed decision-making can, as we argue, be a key criterion for the ethical evaluation of testing routines. If free and informed decision-making by each pregnant woman is the objective, routines in prenatal testing may not be ethically problematic, but rather are defensible and helpful. We compare recent experiences of NIPT routines in the context of prenatal screening programmes in Germany, Israel and the Netherlands. Notable variation can be observed between these three countries (i) in the levels of routinization around NIPT, (ii) in the scope of routinization, and (iii) in public attitudes toward routinized prenatal testing.ConclusionAn ethics of routines in the field of prenatal diagnostics should incorporate and work with the necessary distinctions between levels and forms of routines, in order to develop sound criteria for their evaluation. (shrink)

To explore how cultural beliefs are reflected in different popular views of pre-implantation genetic diagnosis for human leukocyte antigen match (popularly known as “savior siblings”), we compare the reception and interpretations, in Germany and Israel, of the novel/film My Sister’s Keeper. Qualitative analysis of reviews, commentaries and posts is used to classify and compare normative assessments of PGD for HLA and how they reproduce, negotiate or oppose the national policy and its underlying cultural and ethical premises. Four major themes emanated (...) from the comparison: loss of self-determination and autonomy; loss of dignity through instrumentalization; eugenics and euthanasia; and saving life. In both countries, most commentaries represented a dominant position, with a few negotiated positions. We also highlight the decoding of a relatively less explored bioethical aspect of My Sister’s Keeper’s narrative, namely the meaning of euthanasia. We conclude by discussing how the findings relate to attempts of providing cultural explanations for the regulation of HLA-PGD. (shrink)

Looking at the new and often disputed science of epigenetics, we examined the challenges faced by scientists when they communicate scientific research to the public. We focused on the use of metaphors to illustrate notions of epigenetics and genetics. We studied the “encoding” by epigeneticists and “decoding” in focus groups with diverse backgrounds. We observed considerable overlap in the dominant metaphors favored by both researchers and the lay public. However, the groups differed markedly in their interpretations of which metaphors aided (...) understanding or not. We conclude by discussing the role of metaphors and their interpretations in the context of a shift from pre-deterministic genomic metaphors to more active, dynamic and nuanced epigenetic metaphors. These reflections on the choice of metaphors and differences in encoding/decoding are important for science communication and scientific boundary-maintenance. (shrink)

End-of-life decisions concerning euthanasia, stopping life-support machines, or handling advance directives are very complex and highly disputed in industrialized, democratic countries. A main controversy is how to balance the patient’s autonomy and right to self-determination with the doctor’s duty to save life and the value of life as such. These EoL dilemmas are closely linked to legal, medical, religious, and bioethical discourses. In this paper, we examine and deconstruct these linkages in Germany and Israel, moving beyond one-dimensional constructions of ethical (...) statements as “social facts” to their conflicting and multifaceted embedding within professional, religious, and cultural perspectives. (shrink)

Recent developments in medicine open up new possibilities for planning and shaping life. At the same time, this scope of new options and interventions also involves new forms and spheres of responsibilities. Elderly persons can be viewed as having a responsibility toward their families and partners to plan, via advance health care directives, the final stages of their life; individuals can be seen as responsible for late onset diseases when ignoring public incitements for a healthy life style; and medical professionals (...) can be regarded as responsible for “wrongful” lives.These new forms of responsibility concern medical professionals, patients, families, and even society in general. The emerging idea of “responsibilisation” by the new politics of “life itself”—as Rose termed it—warrants more attention and reflection. However, in bioethics, the term is notoriously unclear. This thematic issue of Medicine Studies tries therefore to explore the multiple meanings of responsibility in .. (shrink)

The moral discourse surrounding end-of-life (EoL) decisions is highly complex, and a comparison of Germany and Israel can highlight the impact of cultural factors. The comparison shows interesting differences in how patient’s autonomy and doctor’s duties are morally and legally related to each other with respect to the withholding and withdrawing of medical treatment in EoL situations. Taking the statements of two national expert ethics committees on EoL in Israel and Germany (and their legal outcome) as an example of this (...) discourse, we describe the similarity of their recommendations and then focus on the differences, including the balancing of ethical principles, what is identified as a problem, what social role professionals play, and the influence of history and religion. The comparison seems to show that Israel is more restrictive in relation to Germany, in contrast with previous bioethical studies in the context of the moral and legal discourse regarding the beginning of life, in which Germany was characterized as far more restrictive. We reflect on the ambivalence of the cultural reasons for this difference and its expression in various dissenting views on passive euthanasia and advance directives, and conclude with a comment on the difficulty in classifying either stance as more or less restrictive. (shrink)

National legislation, as well as arguments of experts, in Germany and Israel represent opposite regulatory approaches and positions in bioethical debates concerning end-of-life care. This study analyzes how these positions are mirrored in the attitudes of laypeople and influenced by the religious views and personal experiences of those affected. We qualitatively analyzed eight focus groups in Germany and Israel in which laypeople were asked to discuss similar scenarios involving the withholding or withdrawing of treatment, physician-assisted suicide, and euthanasia. In both (...) countries, respect for patient autonomy and patients’ wishes to die with dignity found broad consent. Laypeople argued in favor of accepting such wishes when they were put down in an advance directive. Laypeople in non-religious groups in both countries argued on the basis of a respect for autonomy for the possibility of euthanasia in severe cases but, at the same time, cautioned against its possible misuse. National contrast was apparent in the moral reasoning of lay respondents concerning the distinction between withholding and withdrawing treatment. The modern religious laypeople in Israel, especially, argued strongly, on the basis of the halakhic tradition, against allowing the withdrawal of treatment in accord with a patient’s wish. We conclude by discussing the emergent notion of shared responsibility and views of professional responsibility, which we connect through relevant cultural themes such as religion and national culture. (shrink)

Healthcare collectives, such as patient organizations, advocacy groups, disability organizations, professional associations, industry advocates, social movements, and health consumer organizations have been increasingly involved in healthcare policymaking. Such collectives are based on the idea that individual interests can be aggregated into collective interests by participation, deliberation, and representation. The topic of collectivity in healthcare, more specifically collective representation, has only rarely been addressed in bioethics. This symposium, entitled: “Collective Representation in Healthcare Policy” of the Journal of Bioethical Inquiry draws attention (...) to this understudied topic from a variety of disciplines, within a variety of socio-cultural contexts. We draw attention to important ethical, cultural, and social questions, and into the practices, justifications for, and implications of collective representation of patients in healthcare policy. (shrink)

This paper analyses self-declared aims and representation of dementia patient organizations and advocacy groups in relation to two recent upheavals: the critique of social stigmatization and biomedical research focusing on prediction. Based on twenty-six semi-structured interviews conducted in 2016–2017 with members, service recipients, and board representatives of POs in Germany and Israel, a comparative analysis was conducted, based on a grounded theory approach, to detect emerging topics within and across the POs and across national contexts. We identified a heterogeneous landscape, (...) with the only Israeli PO focusing strongly on caretakers, whereas in Germany several POs claim to represent this patient collective. Shared aims of all POs were fighting social stigma, balancing the loss of patients’ individual autonomy, and the well-being of caretakers. By highlighting the emergence of new groups of dementia self-advocacy against the more traditional advocacy by others, this study highlights how advocacy and representation in the context of AD are embedded in the discursive context of stigmatization and revised disease conception. Future developments in early diagnosis and prediction of dementia, with more affected people likely to conduct dementia self-advocacy, might challenge existing representation structures even more. (shrink)

The question 'Why should I obey the law?' introduces a contemporary puzzle that is as old as philosophy itself. The puzzle is especially troublesome if we think of cases in which breaking the law is not otherwise wrongful, and in which the chances of getting caught are negligible. Philosophers from Socrates to H.L.A. Hart have struggled to give reasoned support to the idea that we do have a general moral duty to obey the law but, more recently, the greater number (...) of learned voices has expressed doubt that there is any such duty, at least as traditionally conceived. (shrink)

Aspects of the world are normative in as much as they or their existence constitute reasons for persons, i.e. grounds which make certain beliefs, moods, emotions, intentions or actions appropriate or inappropriate. Our capacities to perceive and understand how things are, and what response is appropriate to them, and our ability to respond appropriately, make us into persons, i.e. creatures with the ability to direct their own life in accordance with their appreciation of themselves and their environment, and of the (...) reasons with which, given how they are, the world presents them. An explanation of normativity would explain the various puzzling aspects of this complex phenomenon. In particular it would explain how it is that aspects of the world can constitute reasons for cognitive, emotive, and volitional responses; how it is that we can come to realise that certain cognitive, emotional or volitional responses are appropriate in various circumstances, and inappropriate in others; and how it is that we can respond appropriately. This paper explores an aspect of the last of these questions. (shrink)

Authority is one of the key issues in political studies, for the question of by what right one person or several persons govern others is at the very root of political activity. In selecting key readings for this volume Joseph Raz concerns himself primarily with the moral aspect of political authority, choosing pieces that examine its justification, determine who is subject to it and who is entitled to hold it, and whether there are any general moral limits to it. The (...) readings-by such modern political thinkeres as Robert Paul Wolff, H. L. A. Hart, G. E. M. Anscombe, and Ronald Dworkin-examine the basic moral issues and provide an essential introduction to the debate about the nature of authority for all students of political theory. (shrink)

Actions for which we are responsible constitute our engagement with the world as rational agents. What is the relationship between such actions and our capacities for rational agency? I take this to be a question about responsibility in a particular use of that term, which I shall call ‘responsibility2’. We are not responsible2 for all our intentional actions (actions under hypnosis, for example), but we can nevertheless be responsible2 for actions we do not adequately control, for negligent actions, and for (...) non-intentional omissions. Appreciating this helps show that familiar principles of responsibility are false: those which delimit responsibility to intentional actions or to actions and outcomes under our control. In the attempt to fashion an alternative principle, cases of negligence prove pivotal. We hold ourselves and others responsible2 for conduct within our respective ‘domains of secure competence’, (i.e. that within which we are confident of doing what we set ourselves to do, barring events which defeat our competence), even when actions within that domain fail. The significance of this practice of holding ourselves and others responsible2 lies in the way it maintains our sense of who we are and of how we are related to the world in which we act.1. (shrink)

Self‐sacrifice does not necessarily involve conflict between morality and self‐interest, and when making sacrifices we do not necessarily harm our self‐interest. While people may reasonably care about their own well‐being, a person's well‐being is not, for that person, a source of value or reasons for action. People act for reasons, i.e. for what appears to them to be adequate reasons, regardless of whether or not they serve their well‐being. Sometimes, the reasons that appear to be conclusive, even when conforming with (...) them affects the agent adversely, are moral reasons. (shrink)

The focus of this article is not only the main concerns regarding constitutionalism and specifically the problem of the authority of constitutions and the interpretation of constitutions, with a special emphasis on the authority of the authors of constitutions, the study also deals with the interesting issue of the scope and nature of theories on constitutionalism.Resumen:En este artículo se aborda no sólo la discusión en torno al tema de la autoridad de las Constituciones y la problemática de la interpretación constitucional, (...) en donde particularmente se estudian los argumentos referentes a la autoridad de los autores de la Constitución. Además, el estudio adelanta argumentos importantes para entender el alcance y la naturaleza de las teorías que abordan los temas del constitucionalismo. (shrink)

(No abstract is available for this citation).

En "Legal Reasons, Sources and Gaps", Raz señala que las lagunas jurídicas existen sólo cuando el derecho habla con voz incierta o cuando habla con muchas voces, pero que no hay lagunas cuando el derecho guarda silencio. En este último caso habría reglas de clausura, analíticamente verdaderas, que impiden la ocurrencia de esas lagunas. Según Raz, si hay una laguna en un sistema jurídico, entonces no es verdadero ni falso que exista una razón concluyente para ejecutar cierta acción. Así, una (...) de las contribuciones más importantes de Raz a la solución del problema de las lagunas jurídicas es subrayar que el discurso jurídico no está completamente controlado por la bivalencia. Sin embargo, a menudo se sostiene que el rechazo de la bivalencia conduce a contradicciones. Si esta afirmación fuese verdadera, entonces la solución de Raz al problema de las lagunas jurídicas se vería seriamente amenazada. En este artículo mostramos, con ayuda de una herramienta analítica sofisticada, i.e., la lógica de la verdad de G.H. von Wright, que el rechazo de la bivalencia sólo nos compromete a aceptar la conclusión trivial de que puede haber proposiciones que no son verdaderas ni falsas. Por esta razón, el trabajo de Raz todavía puede ser considerado un buen punto de partida para analizar las relaciones entre normas, razonamiento práctico y lagunas jurídicas. Sin embargo, también mostramos que para admitir proposiciones que no son verdaderas ni falsas, las tesis de Raz deben ser reformuladas. De otra manera, la tesis de que no existen lagunas cuando el derecho guarda silencio no sería compatible con el rechazo de la bivalencia. /// In his paper "Legal Reasons, Sources and Gaps", Raz says that legal gaps only exist when law speaks with uncertain voice or when it speaks with many voices, but there are no gaps when law is silent. In this later case, rules of closure, which are analytically true, prevent from the occurrence of gaps. According to Raz, if there is a gap in a legal system, then both the claim that there is a conclusive legal reason to perform a certain action, and its negation are neither true nor false. Therefore, one of the Raz's most important contributions to the solution of the problem of legal gaps is to remark that legal discourse is not altogether governed by the principie of bivalence. However, philosophers often claim that the denial of bivalence leads to a logical inconsistency. If this claim were true, then Raz's solution to the problem of gaps would be seriously threatened. In this paper we show--with the aid of a sophisticated analytical tool, i.e., von Wright's truth-logic--that the rejection of bivalence only commits us to accept the trivial conclusion that propositions can lack truth-values. For this reason, Raz's paper can still be regarded as a good starting-point for analyzing the relationships between norms, practical reasoning and legal gaps. However, we also show that in order to admit propositions which are neither true nor false, Raz's theses must be reformulated. Otherwise, the claim that there is no gap when law is silent would not be compatible with the rejection of bivalence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which agreements should (...) be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains. (shrink)

THE LIBERTARIAN IDEA by Joseph Raz Oxford: Clarendon, 1986. 435 pp., $59.00 Joseph Raz's The Morality of Freedom offers a subtle and arrestingly original reconstruction of liberal theory. Raz argues that standard liberal linchpins such as neutrality, rights, equality, anti?perfectionism, subjective preference, and individualism fail adequately to ground a liberal order. Rather, he enshrines autonomy as the core value of a justifiable liberalism. Many of Raz's subsidiary arguments are insightful, yet his liberal structure ultimately founders. In large measure that is (...) because Raz oscillates uneasily between two opposed rationalesfor the centrality of autonomy. The result is a major contribution to political theory, but also a book that is less than the sum of its parts. (shrink)

Ensayos acerca de las preocupaciones del autor en dos sentidos: la demostraci n y el sometimiento a examen por medio de un di fano m todo intelectual al empe o marcado por una vocaci n de autenticidad: no seremos cabalmente quienes por raz n hist rica debemos ser mientras no asumamos las tareasdel pensamiento con una constructiva originalidad y con un permanente af n cr tico, serio y esclarecedor.

In his influential paper Legal Reasons, Sources and Gaps' reprinted in The Authority of Law (Oxford: Oxford University Press, 1979), Raz says that legal gaps only exist when law speaks with uncertain voice or when it speaks with many voices, but there are no gaps when law is silent. In this later case, rules of closure, which are analytically true, prevent from the occurrence of gaps. According to Raz, if there is a gap in a legal system, then both the (...) claim that there is a conclusive legal reason to perform a certain action, and its negation are neither true nor false. Therefore, one of the Raz's most important contributions to the solution of the problem of legal gaps is to remark that legal discourse is not altogether governed by the principle of bivalence. However, philosophers often claim that the denial of bivalence leads to a logical inconsistency. If this claim were true, then Raz's solution to the problem of gaps would be seriously threatened. In this paper we show ‐ with the aid of a sophisticated analytical tool, i.e. von Wright's Truth Logic ‐ that the rejection of bivalence only commits us to accept the trivial conclusion that propositions can lack truth‐values. For this reason, Raz's paper can still be regarded as a good starting‐point for analyzing the relationships among norms, practical reasoning and legal gaps. However, we also show that in order to admit propositions which are neither true nor false, Raz's theses must be reformulated. Otherwise, the claim that there is no gap when law is silent would not be compatible with the rejection of bivalence. (shrink)

This essay criticizes Joseph Raz’s service conception of authority on the basis of its knowability condition. The condition states that for agents to be justified in following authoritative directives, they must be able to know (i.e., form reliable beliefs) that the authority issuing the directives is in fact legitimate. Three grounds for concern are identified. The first is that the satisfaction of the normal justification thesis (NJT), which states that the legitimacy of authorities hinges on whether their directives enable subjects (...) to better conform to reason, only provides agents with reasons to believe that it is justified to act as if an authority were legitimate (i.e., on the assumption that it is). Based on the belief/acceptance distinction, the NJT allows for a gap between what is actually the case and what agents are willing to go along with in order to improve the likelihood of conforming to right reason. The independence condition (IC), which states that for those matters where the NJT obtains it must be better for a subject to improve such conformity than to decide for herself, must be satisfied in conjunction with the NJT, but suffers from its own particular problems. Thus, the second problem identified is that of incommensurable values, which appears when agents are not able to decide between the value of improving right reason—NJT—and the value of deciding for themselves—IC. Finally, the third problem is that of vagueness about right reason, where agents attempting to determine whether an authority meets the two conditions are not able to settle whether reason is improved. Together, these three problem areas of knowability serve to challenge Raz’s position. (shrink)

This essay criticizes Joseph Raz’s service conception of authority on the basis of its knowability condition. The condition states that for agents to be justified in following authoritative directives, they must be able to know (i.e., form reliable beliefs) that the authority issuing the directives is in fact legitimate. Three grounds for concern are identified. The first is that the satisfaction of the normal justification thesis (NJT), which states that the legitimacy of authorities hinges on whether their directives enable subjects (...) to better conform to reason, only provides agents with reasons to believe that it is justified to act as if an authority were legitimate (i.e., on the assumption that it is). Based on the belief/acceptance distinction, the NJT allows for a gap between what is actually the case and what agents are willing to go along with in order to improve the likelihood of conforming to right reason. The independence condition (IC), which states that for those matters where the NJT obtains it must be better for a subject to improve such conformity than to decide for herself, must be satisfied in conjunction with the NJT, but suffers from its own particular problems. Thus, the second problem identified is that of incommensurable values, which appears when agents are not able to decide between the value of improving right reason—NJT—and the value of deciding for themselves—IC. Finally, the third problem is that of vagueness about right reason, where agents attempting to determine whether an authority meets the two conditions are not able to settle whether reason is improved. Together, these three problem areas of knowability serve to challenge Raz’s position. (shrink)

O texto expõe, em traços gerais, a teoria da desobediência civil de Rawls, com a finalidade de destacar a definição da desobediência civil como sendo um direito. Pretende-se mostrar que se trata de um direito individual, ainda que seu exercício possa também apresentar traços políticos. Em seguida, apresenta a teoria de Raz no sentido da negativa de que a desobediência civil seja um direito. Ad argumentandum tantum, toma-se como procedente a objeção de Raz, com a finalidade de escrutinar algumas consequências (...) que uma tal formulação acarretaria para a teoria de Rawls, especificamente no que diz respeito à fundamentação da desobediência civil, como sendo um direito. Por fim, analisa possíveis respostas que poderiam ser ofertadas a Raz, a partir especialmente da perspectiva de Rawls. Defende-se que isso implica a necessidade de reconstruir a teoria da desobediência de Rawls, como teoria da resistência. (shrink)

De vuelta a Raz: una réplica En Judging Positivism, sostengo que Joseph Raz cambió su posición en el tiempo y que esos cambios produjeron inconsistencias e incoherencias en su posición madura. La premisa clave que pone en marcha el argumento es la siguiente: la concepción de sistemas jurídicos en Practical Reason and Norms está basada en, y depende de, la tesis de que jueces tienen un deber de aplicar el derecho. Tratase de una concepción positivista del derecho que deriva de (...) una visión positivista del trabajo del juez. Problemas surgen para Raz cuando él introduce elementos morales en su concepción positivista de derecho. En particular, analizo las dificultades que Raz encuentra cuando introduce una teoría moral de la aplicación del derecho en Ethics in the Public Domain, y una teoría moralmente cargada de la autoridad en Morality of Freedom. André Coelho y Jorge Fabra-Zamora cuestionan mi crítica a los argumentos de Raz sobre la aplicación del derecho, mientras Thomas Bustamante plantea sus comentarios en mi critica de la autoridad en Raz. Al contestar a mis críticos, revisito mi interpretación de PRN, al paso que exploro las premisas fundacionales en discusión en estos debates. Rechazo la posibilidad de que todas presuposiciones fundacionales son igualmente valiosas: el análisis conceptual no normativo no es, en mi opinión, una metodología viable si se quiere contestar las cuestiones planteadas por Raz y Hart. Asimismo, investigo las dificultades que la teoría de la autoridad de Raz encuentra. (shrink)

Throughout his writings Kelsen ignores, rejects, or misrepresents the most fundamental ideas of Kantian critical idealism and uses Kantian language imprecisely. Consequently, to start an examination of Kelsen's basic norm, as Raz does, with references to Kelsen's use of a Kantian “conceptual framework” or “intellectual tools” does not clarify the issue. Raz sees a double function in Kelsen's basic norm i.e., its function in explaining the identity and unity of a legal order and its functions in establishing the normativity thereof. (...) I contend that the basic norm performs a single function which bears on the identity and unity of an order; but that it altogether fails to establish “normativity” as understood by Raz. Kelsen's account of legal normativity, I contend, is purely technical-juristic; there is no “justified normativity” in Kelsen as Raz claims. Other aspects of Kelsen's theory examined by Raz and considered here are: (1) the possibility of a refusal to pre-suppose the basic norm; (2) the need, alleged by Kelsen at one stage of his work, to see an order as “a meaningful whole”; (3) the inadmissibility, likewise alleged by him at one stage, of conflicting norms. (shrink)

The origin of modern christian Aristotelianism founded first, in the positive and negative sense, the Renaissance philological-historical humanism. In the first case it provided hermeneutic methods which ensured a study of authentic Aristotelianism covered by the medieval scholastic syntheses. The application of Renaissance hermeneutics brought forth the revival of Aristotelian studies. They made efforts to read out the authentic heritage of Aristotle, therefore they referred to more literal interpreters, such as Alexander of Aphrodisia or Averroës. This practice aroused anxiety about (...) the conformity of the Aristotelian doctrine to the Christian doctrine and called for some steps to use the interpretations that satisfied this condition, i.e. the times of golden scholasticism in the form of the so-called of via antiqua. At the same time the role of Christianised Aristotelianism was stressed vis-à-vis philosophical pluralism which threatened the unity of Christian theology, especially neo-Platonism involved in various naturalistic trends. They made religion philosophical and threatened its identity through the relativization of the Biblical revelation. The latter was treated as one of the elements of mystic wisdom. On the other hand Renaissance humanism by stressing the role of philological-historical studies reduced the importance of philosophy, treated at most as a praxistic ethical reflection. No wonder then that the reform of the mid-15th century – initiated by Pope Nicholas V, a prominent humanist – made efforts to preserve the unity of the church doctrine in which philosophy would play the role of a rational foundation of religious faith. This reform tended on the one hand to the revival of the philosophical spirit, especially the maximalistically understood philosophy of Aristotelianism, on the other it sought to conform this Aristotelianism to Christianity. (shrink)