Professor Fletcher challenges the traditional account of the development of tort doctrine as a shift from an unmoral standard of strict liability for directly causing harm to a moral standard based on fault. He then sets out two paradigms of liability to serve as constructs for understanding competing ideological viewpoints about the proper role of tort sanctions. He asserts that the paradigm of reciprocity, which looks only to the degree of risk imposed by the parties to a (...) lawsuit on each other, and to the existence of possible excusing conditions, provides greater protection of individual interests than the paradigm of reasonableness, which assigns liability instrumentally on the basis of a utilitarian calculus. Finally, Professor Fletcher examines stylistic differences between the two paradigms which may explain the modern preference for the paradigm of reasonableness. (shrink)

Despite the outpouring of interest in tort and criminal theory over the last thirty years, not much progress has been made toward understanding the basic concepts for analyzing liability. Common law theorists of torts and criminal law tend to accept the conventional distinction between objective and subjective standards and the view that objective negligence is not really fault in the way that subjective negligence is. The author’s view is that this distinction between objective and (...) subjective standards is misunderstood and that, in fact, so-called objective negligence is a test of fault or culpability in the same way that subjective standards are. This paper seeks to defend inadvertent negligence as a proper basis for blaming someone for causing harm, whether in the context of tort law or criminal law, whether the standard is regarded as objective or subjective. The first part of the paper, the historical part, engages in an extended analysis of Oliver Wendell Holmes’ writings on negligence. The second part of the paper, the philosophical part, addresses the general question of how people can be considered at fault and be blamed for not knowing critical attributes of their conduct, which might be either matters-of-fact or matters of moral evaluation. (shrink)

This chapter contains sections titled: Economic Theories: Internalization Economic Theories: Deterrence Economic Theories: Loss Spreading Rights‐Based Theories and Distributive Justice Rights‐Based Theories and Corrective Justice References.

The theoretical inquiry into the foundations of criminal law in the twentieth century, in both civil and common law traditions, is assayed by the consideration of seven main currents or trends. First, the structure of offenses is examined in light of the bipartite, tripartite, and quadripartite modes of analysis. Second, competing theories of culpability - normative and descriptive - are weighed in connection with their important ramifications for the presumption of proof and the allocation of the burden of persuasion on (...) defenses. Third, the struggle with alternatives to punishment for the control and commitment of dangerous but non-criminal persons is compared in civil and common law approaches. Fourth, the ascendancy of feminism, as the most successful interdisciplinary school of thought applied to criminal law since the early 1970s, and its contributions in the areas of rape, self-defense, provocation, and capital punishment are charted and weighed. Fifth, one of the most distinctive facets of criminal theory in the last century has been the emergence of the victims' rights movement; its success is compared in civil and common law jurisdictions. Sixth, while it is commonplace in the civil law tradition to embed issues of criminal law within the principles of constitutional law, common law jurisdictions vary; the increasing constitutionalization of criminal law in Canada is contrasted with its decrease in the U.S. Seventh, against the backdrop of a particularly intense period of codification of the criminal law in the last half of the twentieth century, the celebrated American Model Penal Code is criticized. Finally, four predictions for the direction of criminal theory in the next century are ventured. (shrink)

This paper explores how the widely acknowledged conception of tort law as corrective justice is to be applied to the law of negligence. Corrective justice is an ordering of transactions between two parties which restores them to an antecedent equality. It is thus incompatible with the comprehensive aggregation of utilitarianism, and it stands in easy harmony with Kantian moral notions. This conception of negligence law excludes both maximizing theories, such as Holmes' and Posner's, and Fried's risk pool, which (...) combines Kantianism with distributive rather than corrective justice.Central to the Kantian approach is the impermissibility of self-preference. The two types of self-preference, self-preference in conception and self-preference in action can respectively account for the objective standard and the Learned Hand test, which are the two most characteristic features of negligence and which are generally (and wrongly) considered to be inescapably aggregative. This corrective justice conception of the negligence standard can then be compared to Epstein's corrective justice conception of strict liability, and arguments can be offered in favour of the superiority of the former. (shrink)

It is argued that the question of whether or not one is required to be or become a strict vegetarian depends, not upon a rule or ideal that endorses vegetarianism on moral grounds, but rather upon whether one's own physical, biological nature is adapted to maintaining health and well-being on a vegetarian diet. Even if we accept the view that animals have rights, we still have no duty to make ourselves substantially worse off for the sake of other rights-holders. (...) Moreover, duties to others, such as fetuses and infants, may require one to consume meat or animal products. Seven classes of individuals who are not required to be or become vegetarians are identified and their examption is related to nutritional facts; these classes comprise most of the earth's population. The rule of vegetarianism defines a special or provisional duty rather than any general or universal rule, since its observance it based upon the biological capacities of individual humans whose genetic constitution and environment makes them suitably herbivorous. It is also argued that generalizing the vegetarian ideal as a social goal for all would be wrongful because it fails to consider the individual nutritional needs of humans at various stages of life, according to biological differences between the sexes, and because it would have the eugenic effect of limiting the adaptability of the human species. The appeal to the natural interests of omnivores will not justify any claim that humans may eat amounts of meat or animal products in excess of a reasonable safety margin since animals have rights-claims against us. (shrink)

It is argued that the question of whether or not one is required to be or become a strict vegetarian depends, not upon a rule or ideal that endorses vegetarianism on moral grounds, but rather upon whether one's own physical, biological nature is adapted to maintaining health and well-being on a vegetarian diet. Even if we accept the view that animals have rights, we still have no duty to make ourselves substantially worse off for the sake of other rights-holders. (...) Moreover, duties to others, such as fetuses and infants, may require one to consume meat or animal products. Seven classes of individuals who are not required to be or become vegetarians are identified and their examption is related to nutritional facts; these classes comprise most of the earth's population. The rule of vegetarianism defines a special or provisional duty rather than any general or universal rule, since its observance it based upon the biological capacities of individual humans whose genetic constitution and environment makes them suitably herbivorous. It is also argued that generalizing the vegetarian ideal as a social goal for all would be wrongful because it fails to consider the individual nutritional needs of humans at various stages of life, according to biological differences between the sexes, and because it would have the eugenic effect of limiting the adaptability of the human species. The appeal to the natural interests of omnivores will not justify any claim that humans may eat amounts of meat or animal products in excess of a reasonable safety margin since animals have rights-claims against us. (shrink)

Subtle bodily sensations such as itching or fluttering that occur in the absence of any external trigger may serve to locate the spatial boundaries of the body. They may constitute the normal counterpart of extreme conditions in which body-related hallucinations and perceptual aberrations are experienced. Previous investigations have suggested that situations in which the body is spontaneously experienced as being deformed are related to the ability to perform own-body transformations, i.e., mental rotations of the body requiring disembodiment. We therefore decided (...) to consider whether the perception of SPS might relate to embodiment as assessed through the ability to perform own-body transformations and schizotypal traits, since high degrees of schizotypy in the general population have been associated with more vivid perceptions and aberrant perceptual experiences. Then participants completed a standard SPS task. Our analysis revealed that the slower the response time in the OBT task, the more frequent the perception of SPS. This suggests that difficulties in disembodying and mentally transforming one’s own body facilitate feeling oneself. Furthermore, a greater number of correct responses in the OBT task was associated with less frequent perception of SPS. This suggests that finding it easier to disembody and perform mental own-body transformations interferes with the ability to sense oneself. The results also show that higher schizotypal traits, as assessed through the SPQ, are associated with more frequent perception of SPS. Taken together, these results provide a coherent picture and suggest that embodiment is required in order to correctly feel oneself, as expressed through the perception of SPS. The ability to easily experience disembodiment reduces the sense of feeling oneself, and proneness to schizotypal traits produces body misperceptions that enhance and amplify this feeling. The results are discussed in the light of current knowledge and theories about body representations, taking into account attention and interoception as factors that influence body awareness. We offer explanations for perceptual aberrations, body-related delusions, and hallucinations based on misperceived or misinterpreted SPS, and we discuss possible mechanisms that may contribute to feeling and misperceiving oneself. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

The risk of tort liability for health maintenance organizations and other managed care plans has dramatically increased in recent years. This is due in part to the growing percentage of health care rendered through managed care plans. The cost-containment mechanisms commonly used by managed care plans, such as limiting access to services and/or choice of providers, creates a climate ripe for disputes that may end up in court. As dissatisfied patients and providers seek recourse in the courts, tort doctrines (...) are extended and new legal theories emerge as needed. For example, the concepts of direct and vicarious tort liability developed in the hospital context have been extended by courts to encompass HMOs. vicarious liability claims, based on ostensible agency or respondeat superior doctrines, have been brought against HMOs and managed care plans for negligent treatment by physicians selected to provide care to members. (shrink)

Is the negligence standard in accident law acceptable to the egalitarian? The egalitarian - the egalitarian who would compensate only losses for which the actor was not responsible - cannot accept either a system of strict liability for all accidents or a system of social insurance for all accidents. A system of tort law acceptable to the responsibility - egalitarian must be a system based on negligence. But what will negligence mean? A negligence system (...) in which the notion of reasonableness is based on efficiency, I argue, is a system that redistributes wealth from the less well off to those better off. I consider alternative notions of reasonableness, ending up with a principle of proportional responsibility and distinguishing between commercial and non-commercial cases. (shrink)

The aim of this paper is to outline a novel rationale for the negligence standard of liability in tort law. On this view, the negligence standard has a causal character which is seldom recognized, but which was recognized by Aristotle, who first formulated the standard. The proposed rationale is extracted from its Aristotelian roots and presented as an alternative to the two others which have been discussed in recent years, both of which are widely regarded as flawed.

This book explores how the design, construction, and use of robotics technology may affect today's legal systems and, more particularly, matters of responsibility and agency in criminal law, contractual obligations, and torts. By distinguishing between the behaviour of robots as tools of human interaction, and robots as proper agents in the legal arena, jurists will have to address a new generation of "hard cases." General disagreement may concern immunity in criminal law (e.g., the employment of robot soldiers in battle), (...) personal accountability for certain robots in contracts (e.g., robo-traders), much as clauses of strict liability and negligence-based responsibility in extra-contractual obligations (e.g., service robots in tort law). Since robots are here to stay, the aim of the law should be to wisely govern our mutual relationships. (shrink)

The two leading theoretical approaches to tort law — economic analysis and corrective justice — are blind to distributive considerations. Moreover, even the main distributive approaches to tort law — loss-spreading and fairness — fail to emphasize egalitarianism as a distributive consideration. This article argues that egalitarianism should influence the normative evaluation of one’s conduct as negligent or not. It first explains why normatively negligence law should be sensitive to the egalitarian concern, suggesting three different accounts for this claim, (...) based on needs, equality, and desert as criteria for distribution. Second, it argues that egalitarianism is commensurate with the basic understanding of negligence law as reflecting corrective justice and notions of fault. The notion of fault is, therefore, reformulated from within, in order to accommodate egalitarianism. Third, I maintain that in order for egalitarianism to accommodate notions of corrective justice, egalitarian concerns should matter also at the stage of the standard of care. While the egalitarian concern can and should be integrated into the duty stage, I argue that such integration is insufficient. A correct and full understanding of the egalitarian concern and the tort of negligence requires a conclusion that the normative evaluation of one’s action as negligent or not cannot be separated from the distributive results that this action entails. The egalitarian concern works at the duty stage as an excuse for not imposing liability for wrongful activity. In contrast, at the standard stage, it works as a justification that turns an otherwise wrongful activity into a legitimate one. My claim is that morally we should usually expect more care from the better-off than from the disadvantaged. Findings of negligence are based on the failure to balance properly between one’s interests and those of another. In deciding to what extent the defendant should burden herself in order to prevent a loss to potential victims, one morally relevant criterion is the relative ability of the injurer and victim to bear precaution costs and expected accident loss, respectively. (shrink)

This book is designed for use in courses in law schools and university departments of philosophy. It can serve as a text for basic and advanced courses and seminars. Readings include excerpts of classic works of Aristotle, Aquinas, Locke, Hobbes, Kant, Bentham, and Austin. Provided also are excerpts from standard works of twentieth century philosophers. The book explores current legal discourse with readings on topics such as sociobiology, Islamic law, the legal process school, legal feminism, critical legal studies, intersectionality and (...) gender identity theories, law and economics, and new private law theories. It reprints leading cases on natural rights/human rights and readings from online blogs, op-ed essays, news stories and internet publications, as well as drawing on literary treatment of topics relevant to legal philosophy. (shrink)

Numerous universal standards have been proposed to provide ethical guidance for the actions of business. The result has been a confusing mix of standards and their defenses. Thus, there is widespread recognition that business requires a common framework to provide ethical guidance. One of the most prominent conceptual frameworks recently offered, which addresses issues of international business ethics, is that of integrative social contracts theory (ISCT) developed by Thomas Donaldson and Thomas Dunfee. By integrating normative and empirical (...) matters, and drawing on the concepts of social contracts and hypernorms, ISCT seeks to provide a workable, comprehensive theory of business ethics. In this article I argue that, in fact, ISCT offers two different views of hypemorms and the theoretical structure surrounding them. A Principlist View that understands hypernorms as the most general, universal moral principles that hold moral sway over all microsocial contracts. A Contextualist View is that hypernorms are not special, additional norms, but refer to a certain status that the most general norms or principles of each community achieve that are part of a convergence with the norms of other societies. I maintain that the Contextualist View offers a plausible view of ISCT while avoiding many of the criticisms that have been made against the Principlist interpretation of ISCT. Further, the Contextualist View suggests other areas in which ISCT needs further development, such as in the area of human rights which I also briefly explore. (shrink)

European and international regulation of human health research is typified by a morass of interconnecting laws, diverse and divergent ethical frameworks, and national and transnational standards. There is also a tendency for legislators to regulate in silos—that is, in discrete fields of scientific activity without due regard to the need to make new knowledge as generalisable as possible. There are myriad challenges for the stakeholders—researchers and regulators alike—who attempt to navigate these landscapes. This Delphi study was undertaken in order (...) to provide the first interdisciplinary and crosscutting analysis of health research regulation, as it is experienced by such stakeholders in the UK context. As well as reinforcing existing understandings of the regulatory environment, Delphi participants called for greater collaboration, and even co-production, of processes involved in health research regulation. On the basis of this research, we offer insights about how health research regulation can become a matter with which a wider range of stakeholders—including researchers, regulators, publics and research sponsors—can engage. The evidence supports the normative claim that health research regulation should continue to move away from strict, prescriptive rules-based approaches, and towards flexible principle-based regimes that allow researchers, regulators and publics to co-produce regulatory systems serving core principles. By unpacking thorny concepts and practices at the heart of health research regulation—including the public interest and public engagement—our results have the potential to situate and breathe life into them. The results also demonstrate that while proportionality is well-recognised as a crucial element of flexible regulatory systems, more must be done to operationalise this as an ethical assessment of the values and risks at stake at multiple junctures in the research trajectory. This is required if we are to move beyond proportionality as a mere risk-management tool. Compliance culture no longer accurately reflects the needs and expectations of researchers or regulators, nor does it necessarily produce the best research. Embracing uncertainty—both as a human practice and a regulatory objective—may represent the brighter future for health research. (shrink)

One approach to legal theory is to provide some sort of rational reconstruction of all or of a large body of the common law. For philosophers of law this has usually meant trying to rationalize a body of law under one or another principle of justice. This paper explores the efforts of the leading tort theorists to provide a moral basis - in the sense of rational reconstruction based on alleged moral principles - for the law of torts. (...) The paper is divided into two parts. In the first part I consider and reject the view that tort law is best understood as falling either within the ambit of the principle of retributive justice, a comprehensive theory of moral responsibility, or an ideal of fairness inherent in the idea that one should impose on others only those risks others impose on one. The second part of the paper distinguishes among various conceptions of corrective or compensatory justice and considers arguments — including previous ones by the author himself — to the effect that tort law is best understood as rooted in principles of corrective justice. This paper argues that although the principles of justice may render defensible many (but by no means all) of the claims to repair and to liability recognized in torts, it cannot explain why we have adopted a tort system as the approach to vindicating those claims. Some other principle — probably not one of justice — is needed to explain why it is that the victim's claim to repair is satisfied by having his losses shifted to his injurer — rather than through some other means of doing so. The paper concludes that the law of torts cannot be understood — in the sense of being given a rational reconstruction — under any one principle of morality. (shrink)

This chapter contains sections titled: Loyalty and Partiality Loyalty: Unilateral and Reciprocal Contract and History Individualism and Communitarianism Loyalty in the Legal Culture Loyalty and Its Critics References.

Commonplace syntactic constructions in natural language seem to generate ontological commitments to a dazzling array of metaphysical categories - aggregations, sets, ordered n-tuples, possible worlds, intensional entities, ideal objects, species, intensive and extensive quantities, stuffs, situations, states, courses of events, nonexistent objects, intentional and discourse objects, general objects, plural objects, variable objects, arbitrary objects, vague kinds and concepts, fuzzy sets, and so forth. But just because a syntactic construction in some natural language appears to invoke a new category of entity, (...) are we theoreticians epistemically justified in holding that there are such entities? This would hardly seem sufficient. To be epistemically justified, the ontology to which we theoreticians are committed must pass strict standards: the entities must be of the sort required by our best comprehensive theory of the world. The thesis of this paper is that fine-grained type-free intensional entities are like this. If the thesis is right, these entities have a special objective status perhaps not possessed by some of the other ontological categories associated with special syntactic constructions in natural language. In fact, it is plausible to hold that fine-grained type-free intensional entities provide the proper minimal framework for constructing logical and linguistic theories. In this paper my strategy will be to survey the competing conceptions of fine-grained type-free intensionality and to present arguments in support of one of them. Following this narrowing down process, I will go on to the indicated epistemological considerations. (shrink)

This article argues humans should not be defined strictly at their physical boundaries with clear distinctions between anatomical bodies, mental states, and the rest of the world. Rather, diverse mental states, which are often diagnosed as “mental illness,” take shape within greater environmental forces and flows, including those that are constructed online. Drawing from a multi-sited ethnography of The Icarus Project, a radical mental health community, the author situates online narratives written by two of its members within posthuman emotional ecologies (...) in which the exchange of ideas online affects mental states in a profound way. These narratives can be seen as a new type of psychiatric resistance based in new technologies, one that “uncivilizes” mental illness by searching for alternative frameworks and metaphors to understand lived experiences with mental distress. This ethnographic perspective differs significantly from traditional bio-psychiatric models and interventions and can offer both patients and mental healthcare providers with an alternative language to frame mental health. (shrink)

The question of excusing in law has been the subject of different philosophical theories of responsibility. These theories attempt to shed light on the nature and function of legal excuses and to justify their role in the criminal justice system. This paper examines the issue of excusing in law from two theoretical standpoints: the character theory and the choice theory of responsibility. The two theories differ on the kinds of causes of action they each find to provide the (...) basis for holding people responsible. The character theory focuses on character, the choice theory on choice and the capacity to choose. Following a brief introduction in which the fundamental distinction between justification and excuse is outlined, the character theory of responsibility is explained with special attention being paid to the work of George Fletcher, which has made a significant impact on the field of criminal law philosophy in recent years. Then follows a critical discussion of the choice theory as elaborated by H.L.A. Hart, one of the most influential legal theorists of our times. The paper concludes that the character theory of responsibility, by drawing attention to what lies behind and motivates actual choices, offers a better basis for interpreting the moral significance of human actions and for explaining our actual blaming judgements regarding those actions. (shrink)

A unified axiomatic theory that embraces both mechanics and thermodynamics is presented in three parts. It is based on four postulates; three are taken from quantum mechanics, and the fourth is the new disclosure of the existence of quantum states that are stable (Part I). For nonequilibrium and equilibrium states, the theory provides general original results, such as the relation between irreducible density operators and the maximum work that can be extracted adiabatically (Part IIa). For stable equilibrium states, (...) it shows for the first time that the canonical and grand canonical distributions are the only stable distributions (Part IIb). The theory discloses the incompleteness of the equation of motion of quantum mechanics not only for irreversible processes but, more significantly, for reversible processes (Part IIb). It establishes the operational meaning of an irreducible density operator and irreducible dispersions associated with any state, and reveals the relationship between such dispersions and the second law (Part III). (shrink)

This paper addresses the rights-ascription problem—the problem of determining what properties or characteristics one must have to qualify for fundamental rights. As argued here, one traditional response to this problem—the “humanity standard”—fails because rather than recognizing the problem as one of moral predication regarding actual individuals, it accepts nominal membership in a vaguely defined class (e.g., “humanity”) as adequate grounds for ascribing these rights. This failure encourages the hypothesis pursued here, viz., that qualifying for fundamental rights is a matter of (...) whether, given their specific nature, certain individuals (whether human or not) can benefit from the distinctive normative benefits of the fundamental rights ascribed to them. The paper uses a significantly modified rendition of Feinberg’s analysis to argue that only individuals who have or are capable of having certain interests, those that are for their own sake as is their due, qualify to make fundamental rights-claims. Of paramount importance here is the relationship between having such interests and having a “transitive due”; i.e. the psychological capacity to benefit from the moral respect and deference afforded oneself by others when asserting or exercising one’s fundamental rights. (shrink)

ABSTRACTWe express and communicate many attitudes beyond belief, such as amusement, joy, admiration, hatred, and desire. I consider whether there are any general norms that would cover all of these cases. The most obvious generalisation of the most popular norms for assertion, fittingness-based theories, fail in part because it is sometimes an intrinsic good to have certain kinds of mental states. I develop an alternative, rightness-based, approach, according to which it is appropriate to communicate a mental state to an interlocutor (...) when it is right to make the interlocutor have that mental state because of the speech act. This view arises naturally from conversational participants’ common interests, and it helps to make sense of linguistic phenomena like expressives. (shrink)

Stay up-to-date on the ethical and legal issues that affect your clinical and professional decisions! Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards details the ethical and legal issues that involve mental health professionals. Respected authorities with diverse backgrounds, expertise, and professional experience discuss contemporary theories emphasizing professional ethics, the ramifications of professional actions and decisions, and ethical standards on teaching, training, research, and publication. This informative handbook provides invaluable up-to-date information (...) and guidelines vital for every mental health professional. This book is a thorough examination of ethical behavior which can be used as a reference source for the professional or a textbook for graduate students. The handbook itself is divided into five sections. The first section is a detailed introduction of ethics, law, and licensing. The second section presents general ethical principles like competence, integrity, and respect for individual rights and dignity. The third section examines confidentiality, privilege, consent, and protection. The fourth section focuses on general ethical standards in practice, including sexual contact, multiple relationships, and bartering. The fifth section presents the ethical principles and standards in teaching, training, and research. Appendices include the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002) and the Code of Ethics of the National Association of Social Workers (National Association of Social Workers, 1999). Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards discusses: the history of basic approaches and issues in ethical philosophy five fundamental areas in the process of developing competence the necessary ingredients for the mental health professional's practice of integrity aspirational versus enforceable standards of ethics concern for the welfare of others as a core ethical principle the notion of social responsibility in the ethics codes of psychologists and social workers ethical principles, statutes, and case law protecting privacy and confidentiality issues involving the therapist-patient privilege the "duty to protect" doctrine and relevant legal issues the dynamics of multiple relationships and boundary violations sexualized dual relationships between psychologists and patients possible conflict of interest in bartering for services the requirements and implementation of maintaining patient records to avoid ethical and legal problems possible ethical dilemmas involving referrals and fees much, much more This Handbook is an essential resource for all mental health professionals, including psychologists, psychiatrists, social workers, counselors, therapists, and graduate students in mental health and the related fields. Ethical and Legal Issues for Mental Health Professionals: A Comprehensive Handbook of Principles and Standards is the first of three volumes under this title. The following volumes will focus on forensic settings and special populations/special treatment modalities. (shrink)

Since the outbreak of the Covid-19 pandemic, there has been an increase in religious conspiracy theories in Africa, ranging from outright denial, partial acceptance to spreading misinformation about the Coronavirus. This essay will argue that RCTs pose serious challenges to Covid-19 prevention by encouraging non-compliance to Covid-19 preventive measures and refusal to take Covid-19 vaccination. It will then formulate a personhood-based theory of right action. This new theory will be teased out of Ifeanyi Menkiti's account of the normative (...) conception of personhood and deployed here as a veritable tool for overcoming the challenges posed by RCTs in the fight against the COVID-19 Pandemic in Africa. (shrink)

Since the outbreak of the Covid-19 pandemic, there has been an increase in religious conspiracy theories in Africa, ranging from outright denial, partial acceptance to spreading misinformation about the Coronavirus. This essay will argue that RCTs pose serious challenges to Covid-19 prevention by encouraging non-compliance to Covid-19 preventive measures and refusal to take Covid-19 vaccination. It will then formulate a personhood-based theory of right action. This new theory will be teased out of Ifeanyi Menkiti's account of the normative (...) conception of personhood and deployed here as a veritable tool for overcoming the challenges posed by RCTs in the fight against the COVID-19 Pandemic in Africa. (shrink)

"Public reason" is one of the central concepts in modern liberal political theory. As articulated by John Rawls, it presents a way to overcome the difficulties created by intractable differences among citizens' religious and moral beliefs by strictly confining the place of such convictions in the public sphere. Identifying this conception as a key point of conflict, this book presents a debate among contemporary natural law and liberal political theorists on the definition and validity of the idea of public (...) reason. Its distinguished contributors examine the consequences of interpreting public reason more broadly as "right reason," according to natural law theory, versus understanding it in the narrower sense in which Rawls intended. They test public reason by examining its implications for current issues, confronting the questions of abortion and slavery and matters relating to citizenship. This energetic exchange advances our understanding of both Rawls's contribution to political philosophy and the lasting relevance of natural law. It provides new insights into crucial issues facing society today as it points to new ways of thinking about political theory and practice. (shrink)

The essay is a critical revision of various of Marx’s approaches in his analysis of capitalism in “Das Kapital”. One can distinguish immanent, normative critiques from transcendental and objectivistic ones. The review of the normative standards used in each case leads to the questions of how Marx determined and used the relationships of justice and law and the capitalist mode of production. Orthodox Marxist views (most recently C. Menke) claim that Marx did not criticise capital as unjust and understood (...) the law of capital only as private law that stabilised domination. Against this, it is shown that he certainly bases his “critical presentation” on an (almost Kantian) constitutional (“rechtsstaatliches”) concept of private law and public law. Thus the “popular prejudice” of “human equality”, defined by Marx as an epochal and systematic condition of the capitalist exchange of goods, becomes apparent as a covert reference to the historical (America, French Revolution),public-lawdeclarations of human rights. And in the chapter “Struggle for the length of the working day” Marx presents the decisions of this dispute between “equal rights” first and foremost in the systematic historical actions of the constitutional powers (legislature, executive and judiciary). At the same time, however, he attempts to ironise and defame this public-law and deliberative, democratic dispute and then to misinterpret it as a violent “civil war”. Because Marx in his further presentation ignores this legal-democratic dispute, including a potential human-rights critique and (possible!) future regulation of capitalism, focussing instead on objectivist concepts of history and development, he can only insufficiently grasp the still challenging relationship between democracy and capitalism. (shrink)

In this paper, I discuss Goldberg and Zipursky’s Recognizing Wrongs and argue that there is a tension between their philosophy of action as applied to the law of negligence and the idea that the directive-based relationality thesis is central and, therefore, the action and conduct of the defendant should not be part of the core explanation of the tort of negligence.

This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work was reproduced from the original artifact, and remains as true to the original work as possible. Therefore, you will see the original copyright references, library stamps (as most of these works have been housed in our most important libraries around the world), and other notations in the work. This work is in the public domain (...) in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. As a reproduction of a historical artifact, this work may contain missing or blurred pages, poor pictures, errant marks, etc. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant. (shrink)

A natural language is a unified and integrated system, and the serious study of one part of the system inevitably involves one in the study of many other parts, if not the system as a whole. For this reason, the study of small, isolated fragments of a language—however necessary, valuable, and difficult this may be—will often make us think that we understand more than we really do. The fact is that you can’t really study one phenomenon adequately without studying a (...) great many other related phenomena, and the way they fit together in terms of the linguistic system as a whole. This is the sort of thing a linguist learns very early in his career. Experience in descriptive linguistics, even at an elementary level will force a linguist to come to grips with a wide range of complex data in some language, perhaps even English, and the truism soon emerges. But, due to the vagaries of our educational institutions, few philosophers or logicians receive training in linguistic description. Consequently much of the discussion of natural language in the philosophical and logical literature is based on a very small sampling of data which is skewed in nontrivial ways. True, one has to start somewhere, and a great deal has been learned by ordinary language philosophers who have looked at only a handful of relatively simple examples and by logicians who have studied what by natural language standards are only miniscule fragments. But now that philosophers and logicians are turning to more detailed studies of natural language phenomena, it is perhaps the right time to suggest that philosophical and logical training be expanded to include the study of natural languages as entire systems. I don’t mean to suggest, for example, that logicians should stop their systematic study of small fragments, but rather that a knowledge of the kinds of phenomena outside of those fragments can enrich the study of fragments and give one a more realistic picture of what one does and does not know about natural language. (shrink)

The cognitive science of religions’ By-Product Theory contends that much religious thought and behavior can be explained in terms of the cultural activation of maturationally natural cognitive systems. Those systems address fundamental problems of human survival, encompassing such capacities as hazard precautions, agency detection, language processing, and theory of mind. Across cultures they typically arise effortlessly and unconsciously during early childhood. They are not taught and appear independent of general intelligence. Theory of mind undergirds an instantaneous and (...) automatic intuitive understanding of minds, mental representations, and their implications for agents’ actions. By-Product theorists hypothesize about a social cognition content bias, holding that mentalizing capacities inform participants’ implicit understanding of religious representations of agents with counter-intuitive properties. That hypothesis, in combination with Baron-Cohen’s account of Autistic Spectrum Disorder in terms of diminished theory of mind capacities, suggests an impaired religious understanding hypothesis. It proposes that people with ASD have substantial limitations in intuitive understanding of and creative inferences from such representations. Norenzayan argues for a mind-blind atheism hypothesis, which asserts that the truth of these first two hypotheses suggests that people with ASD have an increased probability, compared to the general population, of being atheists. Numerous empirical studies have explored these three hypotheses’ merits. After carefully pondering distinctions between intuitive versus reflective mentalizing and between explicit versus implicit measures and affective versus cognitive measures of mentalizing, the available empirical evidence provides substantial support for the first two hypotheses and non-trivial support for the third. (shrink)

Activism undertaken by CEOs has been on the rise in recent years. Research on this practice has been primarily concerned with determining the conditions under which a CEO’s public statements on sociopolitical issues are beneficial or detrimental to her firm’s business performance. We complement this instrumental perspective on CEO activism with an ethical investigation of the implications of CEO activism for the democratic process. Drawing on political philosophy, we show that the answer to the question of whether CEO activism is (...) conducive to the democratic process depends on the view of democracy that is adopted. From the perspective of liberalism, the sole requirement that an instance of CEO activism must fulfill is that it is lawful, provided that the applicable law sufficiently protects people’s essential rights. However, from the viewpoint of republicanism, this is not a sufficient condition. Besides being law-abiding, CEOs should be “civic-minded” when intervening in public debates, i.e., concerned with the quality and fairness with which those debates are conducted. Based on the literature on republicanism, we suggest four possible criteria that civic-minded CEOs can apply to gauge the democratic conduciveness of a possible public intervention: added insight, timeliness, constructiveness, and transparency. Our article complements the predominantly instrumentally oriented literature on CEO activism and contributes, more broadly, to the literature that explores the normative dimensions of corporate political involvement, as well as to a growing strand of research that draws on philosophical theory to inform business leaders’ ethical decision-making. (shrink)

In NX v. Cabrini Medical Center, New York's highest court overruled a divided Appellate Division and held that, as a matter of law, a jury could find a hospital negligent for its failure to protect a patient from sexual assault. The court refused, however, to adopt a higher standard of tort liability for health-care providers who treat incapacitated patients.

My dissertation presents the outlines of a theory about knowledge and virtue. The core idea is that the nature of knowledge is best understood by reflecting on its role in intellectual practice. What distinguishes knowledge from true opinion is not primarily its causal history or its internal structure, as standard theories argue, but rather the way in which knowledge is embedded or rooted in our styles of explanation, modes of communication and methods of teaching. Knowledge becomes rooted in our (...) practices through the cultivation and exercise of intellectual virtue, or the dispositions and skills needed to master varieties of theoretical and practical reasoning. The link to virtuous intellectual activity is what makes knowledge more valuable than true opinion. This suggests that the virtues of intellectual practice are central to our understanding of the nature of knowledge. I devote the first half of the dissertation to showing why we need a theory of virtue in epistemology and how in general that theory ought to be formulated. In the second half, I address skeptical objections and other problems that arise during my formulation of the theory. ;The starting point is a puzzle from Plato's Meno about the value of knowledge. As Socrates observed, true belief has the same practical value as knowledge. So why should we prefer the one to the other or even distinguish between the two? Most philosophers agree that true belief is not enough for knowledge, but there is little agreement about what it lacks and why the distinction matters. Standard attempts to fill this gap either conceive knowledge as true belief with the right kind of causal history or as responsibly formed belief with the right kind of rational structure. But neither strategy is satisfactory because neither adequately reflects the role that knowledge plays in intellectual practice. This suggests that there is something wrong with the standard belief-theoretic analysis of knowledge. I develop a new account of the nature and value of knowledge that better explains the connection between the norms of virtuous inquiry and the goal of understanding. (shrink)

The vegan ideal is entailed by arguments for ethical veganism based on traditional moral theory (rights and/or utilitarianism) extended to animals. The most ideal lifestyle would abjure the use of animals or their products for food since animals suffer and have rights not to be killed. The ideal is discriminatory because the arguments presuppose a male physiological norm that gives a privileged position to adult, middle-class males living in industrialized countries. Women, children, the aged, and others have substantially different (...) nutritional requirements and would bear a greater burden on vegetarian and vegan diets with respect to health and economic risks, than do these males. The poor and many persons in Third World nations live in circumstances that make the obligatory adoption of such diets, where they are not already a matter of sheer necessity, even more risky.Traditional moral theorists (such as Evelyn Pluhar and Gary Varner whose essays appear in this issue) argue that those who are at risk would beexcused from a duty to attain the virtue associated with ethical vegan lifestyles. The routine excuse of nearly everyone in the world besides adult, middle-class males in industrialized countries suggests bias in the perspective from which traditional arguments for animal rights and (utilitarian) animal welfare are formulated. (shrink)

An Invitation to Formal Reasoning introduces the discipline of formal logic by means of a powerful new system formulated by Fred Sommers. This system, term logic, is different in a number of ways from the standard system employed in modern logic; most striking is its greater simplicity and naturalness. Based on a radically different theory of logical syntax than the one Frege used when initiating modern mathematical logic in the 19th Century, term logic borrows insights from Aristotle's syllogistic, Scholastic (...) logicians, Leibniz, and the 19th century British algebraists. Term logic takes its syntax directly from natural language, construing statements as combinations of pairs of terms, where complex terms are taken to have the same syntax as statements. Whereas standard logic requires extensive 'translation' from natural language to symbolic language, term logic requires only 'transcription' into the symbolic language. Its naturalness is the result of its ability to stay close to the forms of sentences usually found in every day discourse. Written by the founders of the term logic approach, An Invitation to Formal Reasoning is a unique introduction and exploration of this new system, offering numerous exercises and examples throughout the text. Summarising the standard system of mathematical logic to set term logic in context, and showing how the two systems compare, this book presents an alternative approach to standard modern logic for those studying formal logic, philosophy of language or computer theory. Fred Sommers is Professor Emeritus, Brandeis University, USA; George Englebretsen is Professor of Philosophy, Bishop's University, Canada. (shrink)

Objective: The dopamine hypothesis is one of the most influential theories of the neurobiological background of schizophrenia (SCZ). However, direct evidence for abnormal dopamine-related subcortical-cortical circuitry disconnectivity is still lacking. The aim of this study was therefore to test dopamine-related substantia nigra (SN)-based striato-thalamo-cortical resting-state functional connectivity (FC) in SCZ. Method: Based on our a priori hypothesis, we analyzed a large sample resting-state functional magnetic resonance imaging (fMRI) dataset from first-episode drug-naïve SCZ patients (n = 112) and healthy controls (n (...) = 82) using the SN as the seed region for an investigation of striato-thalamo-cortical FC. This was done in the standard band of slow frequency oscillations and then in its subfrequency bands (Slow4 and Slow5). Results: The analysis showed in SCZ: (1) reciprocal functional hypo-connectivity between SN and striatum, with differential patterns for Slow5 and Slow4; (2) functional hypo-connectivity between striatum and thalamus, as well as functional hyper-connectivity between thalamus and sensorimotor cortical areas, specifically in Slow4; (3) correlation of thalamo-sensorimotor functional hyper-connectivity with psychopathological symptoms. Conclusions: We demonstrate abnormal dopamine-related SN-based striato-thalamo-cortical FC in slow frequency oscillations in first-episode drug-naive SCZ. This suggests that altered dopaminergic function in the SN leads to abnormal neuronal synchronization (as indexed by FC) within subcortical-cortical circuitry, complementing the dopamine hypothesis in SCZ on the regional level of resting-state activity. (shrink)

Behavioral ethics research has focused predominantly on how the attributes of individuals influence their ethicality. Relatively neglected has been how macro-level factors such as the behavior of firms influence members’ ethicality. Researchers have noted specifically that we know little about how a firm’s CSR influences members’ behaviors. We seek to better merge these literatures and gain a deeper understanding of the role macro-level influences have on manager’s ethicality. Based on agency theory and social identity theory, we hypothesize that (...) a company’s commitment to CSR shifts managers’ focus away from self-interests toward the interests of the firm, bolstering resistance to temptation. We propose this occurs through self-categorization and collective identification processes. We conduct a 2 × 2 factorial experiment in which managers make expense decisions for a company with commitment to CSR either present or absent, and temptation either present or absent. Results indicate that under temptation, managers make decisions consistent with self-interest. More importantly, we find when commitment to CSR is present, managers are more likely to make ethical decisions in the presence of temptation. Overall, this research highlights the interactive role of two key contextual factors—temptation and firm CSR commitment—in influencing managers’ ethical decisions. While limited research has highlighted the positive effects that a firm’s CSR has on its employees’ attitudes, the current results demonstrate CSR’s effects on ethical behavior and imply that through conducting and communicating its CSR efforts internally, firms can in part limit the deleterious effects of temptation on managers’ decisions. (shrink)

BackgroundThe emergence of artificial intelligence (AI) in medicine has prompted the development of numerous ethical guidelines, while the involvement of patients in the creation of these documents lags behind. As part of the European PROFID project we explore patient perspectives on the ethical implications of AI in care for patients at increased risk of sudden cardiac death (SCD).AimExplore perspectives of patients on the ethical use of AI, particularly in clinical decision-making regarding the implantation of an implantable cardioverter-defibrillator (ICD).MethodsSemi-structured, future scenario-based (...) interviews were conducted among patients who had either an ICD and/or a heart condition with increased risk of SCD in Germany (n = 9) and the Netherlands (n = 15). We used the principles of the European Commission’s Ethics Guidelines for Trustworthy AI to structure the interviews.ResultsSix themes arose from the interviews: the ability of AI to rectify human doctors’ limitations; the objectivity of data; whether AI can serve as second opinion; AI explainability and patient trust; the importance of the ‘human touch’; and the personalization of care. Overall, our results reveal a strong desire among patients for more personalized and patient-centered care in the context of ICD implantation. Participants in our study express significant concerns about the further loss of the ‘human touch’ in healthcare when AI is introduced in clinical settings. They believe that this aspect of care is currently inadequately recognized in clinical practice. Participants attribute to doctors the responsibility of evaluating AI recommendations for clinical relevance and aligning them with patients’ individual contexts and values, in consultation with the patient.ConclusionThe ‘human touch’ patients exclusively ascribe to human medical practitioners extends beyond sympathy and kindness, and has clinical relevance in medical decision-making. Because this cannot be replaced by AI, we suggest that normative research into the ‘right to a human doctor’ is needed. Furthermore, policies on patient-centered AI integration in clinical practice should encompass the ethics of everyday practice rather than only principle-based ethics. We suggest that an empirical ethics approach grounded in ethnographic research is exceptionally well-suited to pave the way forward. (shrink)

The problem of history in Nietzsche’s second Unfashionable Observation is best approached through that which it is supposed to serve: life, more specifically human life. I argue that Nietzsche presents an oblique but nevertheless complete articulation of the nature of the human soul as consisting of two basic parts, of desiring (the unhistorical) and memory (the historical): of a multiplicity of desires that struggle for domination over the others, and which express themselves in more complex ways through memory-based structures such (...) as conscience. I then discuss some implications of this conception. First, I interpret the significance of the useful kinds of history: rather than being different modes of historical science, they are much more basic modes of practical relating to the matters of our world (especially to other humans and their ways of life) that are external to us both temporally and spatially. Second, I discuss the particular kinds of desires which underpin the three useful kinds of history. Third, I interpret the problem of scientific history as arising from a turning of the normal human structures of meaningfulness against themselves, and as resulting in two specific kinds of psychic damage: to our capacity for growth and self-cultivation, and to our will to do so at all. Finally, I show the importance of the erotic-historic soul for the questions of right and wrong methods of self-knowledge and for the meaning of the imperative “sei du selbst!” that we find in Schopenhauer as Educator. (shrink)

Suppose that T is an equational theory of groups or of rings. If T is finitely axiomatizable, then there is a least number μ so that T can be axiomatized by μ equations. This μ can depend on the operation symbols that occur in T. In the 1960s, Tarski and Green completely determined the values of μ for arbitrary equational theories of groups and of rings. While Tarski and Green announced the results of their collaboration in 1970, the only (...) fuller publication of their work occurred as part of a seminar led by Tarski at Berkeley during the 1968–69 academic year. The present paper gives a full account of their findings and their proofs. (shrink)

Higher-order theories of properties, relations, and propositions are known to be essentially incomplete relative to their standard notions of validity. It turns out that the first-order theory of PRPs that results when first-order logic is supplemented with a generalized intensional abstraction operation is complete. The construction involves the development of an intensional algebraic semantic method that does not appeal to possible worlds, but rather takes PRPs as primitive entities. This allows for a satisfactory treatment of both the modalities and (...) the propositional attitudes, and it suggests a general strategy for developing a comprehensive treatment of intensional logic. (shrink)

In this clearly written, impressively researched, and engaging book, Alan Wertheimer makes a distinctive and important contribution to the contemporary literature on the nature and value of consent to sexual relations. Wertheimer’s effort is two-fold. First, and as an informative yet logically distinct backdrop, he provides a specific theory of sexual desire and behavior, viz., evolutionary psychology. Second, he identifies and defends moral and legal principles of valid consent to sex. In chapter-length discussions, Wertheimer shows why matters of consent (...) are significantly more complex than many, including influential feminist scholars, recognize, and in so doing lays the groundwork for the theoretical core of his book: a rights-based theory of sexual coercion. This theory provides powerful grounds for determining when conduct constitutes coercion of the sort that nullifies consent and, when combined with numerous and often-ingenious hypothetical cases, teases out principles of moral and legal consent that are both coherent and reasonable. As a result of this combination of considerations, Wertheimer’s book is unique among recent efforts in this area and the analyses and arguments presented should be of great interest to social psychologists as well as those working in normative ethics and jurisprudence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Phenomenology and Modern Behavioral PsychologyLindsay B. Fletcher (bio) and Steven C. Hayes (bio)Keywordsacceptance, contextualism, defusion, relational-frame-theoryPérez-Álvarez and Sass (2008) deserve praise for examining the philosophical roots of clinical psychological science. Modern psychology has moved away from the development of philosophy and theory that is needed to ground scientific investigation within a coherent system. The result is increasingly ill-defined constructs and research programs that each operate within their own (...) divergent paradigm. B.F. Skinner is one of the few modern experimental behavioral psychologists who attempted to build a coherent science of behavior based on observable events with testable hypotheses. Acceptance and Commitment Therapy (ACT; Hayes, Strosahl, and Wilson 1999) and its associated basic science of cognition, Relational Frame Theory (RFT; Hayes, Barnes-Holmes, and Roche 2001), build on Skinner’s work to produce a more progressive science.Psychology and philosophy are different disciplines and how they are approached is defined by the objective. The purpose of philosophy from a scientific point of view is not the same as from a philosophical point of view. It is fine to compare radical behaviorism and phenomenology, but it seems important to ask whether and how this will lead to a more progressive science of behavior.In this commentary, we discuss the philosophy and theory that underlie ACT/RFT and show how they reflect on the relevant points made by the authors regarding the shared features of phenomenology and radical behaviorism. We make two adjustments to the explanation of radical behavioral concepts presented in the current paper to create a more coherent analysis. Finally, we show here how the development of a theory based on applied goals directly informs the methods used in clinical settings.Philosophical AssumptionsThe field of behavior analysis that originated with Skinner has different strands. Some are holistic and pragmatic, whereas others are elementalistic and mechanistic (Hayes, Hayes, and Reese 1988). ACT is based on an a-ontological philosophy termed functional contextualism (Hayes 1993), which views behavior analysis from a holistic and pragmatic perspective. Functional contextualism (AKA radical behaviorism) shares some of the assumptions of phenomenology, as has long been noted (Day 1969). For example, Pérez-Álvarez and Sass (2008) identify a-dualism, or monism, as a common feature. In functional contextualism, the whole is divided into functional units for the purpose of prediction and influence. A three-term contingency (antecedent–behavior–consequence) in behavior analysis is viewed as a [End Page 255] whole event with pragmatically distinguishable aspects, not an assemblage. As the authors point out, this results in a dialectic tension between stimulus control, action, and reinforcer because none are distinct units, and each is defined with reference to the others much as the front of a coin cannot exist without the back. These are not ontological entities, but functional units that are abstracted from the whole for pragmatic purposes. What is “radical” about radical behaviorism is that the philosopher, psychologist, or researcher participates in the event they are observing, and their own acts of scientific observation are identified based on their own functional properties.Behavioral ThinkingIn the service of further developing this philosophical and theoretical foundation and considering it along side phenomenology, we need to examine two aspects of the target article. The first regards the role of the environment in shaping behavior that is central to behavioral and contextual theories. The authors object to behaviorism’s notion of environment and suggest replacing it with the concept of the world, stating that “animals have environment, but man has world.” What is missing is an account of that shift. We believe that modern behavior analysis provides that account.Similarly, the paper argues that “reinforcers are not just things that follow behavior, but also, and above all, values that guide our life.” Again what is missing is an account of the precise behavioral basis for the distinction.In an attempt to do this, the authors incorrectly analyze operant behavior as future oriented, even appealing to final causality. In the three-term contingency, the discriminative stimulus sets the occasion for reinforcement of a particular behavior. The behavior of interest has been reinforced in similar contexts in the past, which gives... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Seeking the Everyday Meaning of Autonomy in Neurologic DisordersGeorge J. Agich (bio)The Socratic aphorism that the unexamined life is not worth living and dictums like "Know thyself" remind us of the centrality of self-understanding in the history of philosophical reflections on autonomy. These traditional concerns with autonomy may seem far removed from the neurologic impairments to which Joel Anderson and Warren Lux draw our attention. Nonetheless, Anderson and Lux (...) have provided an important discussion that links the traditional philosophical commitment to self-knowledge with an account that parses these concepts in the context of neurologic disorders. Theirs is a potentially productive approach for improving our understanding of autonomy, one that Emilio Mordini and I advocated in a paper entitled, "Autonomy and the Ethics of Neurosurgery" (Agich and Mordini 1998, 54). We argued that the focus of bioethics on issues such as informed consent misses the more challenging and potentially fruitful collaboration that neurosurgery and neurology affords for advancing the philosophical understanding of the conditions of autonomy. The challenge is in the integration of concepts used in one context of meaning with other domains of discourse. A good example of the challenges embedded in pursuing this kind of project can be found in Anderson and Lux's discussion of the concept of accurate self-assessment.Anderson and Lux argue that accurate self-assessment is a requirement for one to act autonomously. On first hearing, this phrase sounds unsurprising and consistent with standard approaches that assume a higher degree of awareness of one's capacities. Their characterization, however, derives from their observations of cases involving severe neurologic impairments, which point to more basic processes than the reflective awareness or knowledge that is often assumed. Paradoxically, the language of accurate self-assessment sounds remarkably like an intellectual function. It appears to fall squarely within the traditional philosophical tendency to define autonomy in terms of ego-centered, intellectual functions involving relatively high-level reflective capacities. Despite their terminology, Anderson and Lux stress that their account requires a type of reflexivity that is not the same as self-conscious reflection understood in the highest degree. They stress this in a number of places. For example, they see the neurologic concept of executive function as involving basic feedback mechanisms that are "broadly isomorphic with capacities associated [End Page 295] with autonomy;" these include anticipation, goal seeking, planning, initiation, sequencing, monitoring, error detection, self-correction, as well as initiation of novel responses, a clearly heterogenous set of capacities (Anderson and Lux 2004, 285). These capacities are not capacities of the "mind," but basic neurologic functions of the intact embodied agent who is actively engaged in the world. Thus, these concepts capture or express a practical (or clinical) as opposed to a theoretical understanding of the basic conditions or capacities defining autonomy. Similarly, their talk of "self-assessment" does not need to be understood as explicit or conscious; rather, it typically operates in the background (Anderson and Lux 2004). They term this character of self-assessment "mundane" (Anderson and Lux 2004, 289), which strikes me as exactly the right way to characterize this key feature of autonomy (Agich 1995). Their phenomenological and clinically based insights are quite sound, but the reader struggles with a terminology that seems to run in a different direction. To be sure, they stress that they intend their language of "autonomy" and "accurate self-assessment" to involve ordinary, background, and everyday functions that do not require high levels or significant capacities for reflective self-assessment, but their very insistence underscores the problem inherent in this terminology.Anderson and Lux argue that the capacity for self-assessment has a task-relative dimension that requires a degree of "accuracy." They characterize accuracy in a way that may promote rather than forestall misunderstanding. They state that "an adequate degree of precision" (281) is required in such assessment. For example, in assessing whether one is able to jump a hurdle, they say "one must accurately estimate not only the strength of one's legs but also the height of the hurdle" (Anderson and Lux 2004, 281). They further characterize their account of "accuracy" as involving an epistemological externalism, which might lead some readers to assume... (shrink)

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and legitimacy. The (...) final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)

In this one-of-a-kind text, George P. Fletcher, a renowned legal theorist, offers a provocative yet accessible overview of the basics of legal thought. The first section of the book is designed to introduce the reader to fundamental concepts such as the rule of law and deciding cases under the law. It continues with an analysis of the values of justice, desert, consent, and equality, as they figure into our judgment of legal cultures in terms of soundness and legitimacy. The (...) final chapters address the problems of morality and consistency in the law. In each case the author not only introduces the basic ideas but considers important arguments in the contemporary literature and raises original claims of his own. Ideally suited for courses in the philosophy of law, legal issues, and jurisprudence, Basic Concepts of Legal Thought fills a void in the literature, as there is no other volume that both eases law students into the mysteries of legal philosophy and provides an introduction to the legal mind for non-lawyers. (shrink)