Abstract This article examines the common claim that there are gaps in international law that undermine accountability of private military and security companies. A multi-actor analysis examines this question in relation to the commission of international crimes, violations of fundamental human rights, and ordinary crimes. Without this critical first step of identifying specific deficiencies in international law, the debate about how to enhance accountability within this sector is likely to be misguided at best.

This paper draws upon Hannah Arendt's idea of the 'right to have rights' to critique the current protection gap faced by refugees today. While refugees are protected from refoulement once they make it to the jurisdiction or territory of a state, they face an ever-increasing array of non-entrée policies designed to stymie access to state territory. Without being able to enter a state capable of securing their claims to safety and dignity, refugees cannot achieve the rights which ought to be (...) afforded to them under international law. Drawing upon both legal theory and political philosophy, this paper argues that refugees today, just as the stateless in Arendt’s time, must be afforded the ‘right to have rights’, understood as a right to enter state territory. (shrink)

This article compares and contrasts the patenting of animals, humans, and biotechnological inventions in the United States, at the European Patent Office, and within the European Union. It shows that morality is not a concern of U.S. legislative instruments or courts and patents have been granted liberally on living organisms, from microorganisms to mammals, in North America since the 1980s. By way of contrast, both European legislative instruments enshrine a morality bar that must be employed to deny patentability. Their implementation, (...) however, is unpredictable due to a lack of detailed guidance on what morality means. The remit of the morality bar extends principally to humans, but the interests of animals must now also be factored into the equation. The manner in which this is done is unclear and patents on plants, although controversial among the public in general, do not unduly trouble lawmakers now that a significant time has elapsed since this Rubicon was crossed. This article explains and critically assesses these systems while identifying some of the ethical problems that are likely to emerge in due course focusing on the ad hoc regard paid to animals and the lack of a structured approach to considering their rights or welfare. (shrink)

While researchers in business ethics, moral philosophy, and jurisprudence have advanced the study of corporate agency, there have been very few attempts to bring together insights from these and other disciplines in the pages of the Journal of Business Ethics. By introducing to an audience of business ethics scholars the work of outstanding authors working outside the field, this interdisciplinary special issue addresses this lacuna. Its aim is to encourage the formulation of innovative arguments that reinvigorate the study of corporate (...) agency and stimulate further cross-fertilization of ideas between business ethics, law, philosophy, and other disciplines. (shrink)

This paper explores the subject-matter of the relationship between law and humanity, filling a significant lacuna in philosophy of law in the West today. Doing so, the paper starts with recasting the traditional Chinese conflict—in particular, the conflict between legalism and Confucianism—over law in a new light of the contemporary call for stopping crimes against humanity. It then explores Habermas’ insight into and illusion of law. Finally, it examines the internal relationship between law and humanity, contending that law must always (...) treat humanity as a purpose, not as a tool to other ends, functioning to build a community of humanity; while a distinction exists between justice and benevolence, law must not be inhumane. (shrink)

This article intends to explore the law relating to judicial separation inMalaysia from the perspective of its importance and the issues that have arisenwith respect to its effectiveness, as an avenue to encourage the preservation ofa marriage. The investigation extended to an analysis on the lacuna in law onjudicial separation in Malaysia, specifically with respect to the need for a timeframe, which would essentially create certainty and encourage reconciliationbetween the parties. A comparative legal research methodology is employed incomparing the positions (...) in Malaysia and India. It is hoped that the findings ofthis paper on judicial separation, particularly related to the need for a statutorytime frame, will encourage reconciliation between the parties and preserve thesanctity of marriage, as is envisioned in the concept of a judicial separation. (shrink)

Conferring legal personhood on purely synthetic entities is a very real legal possibility, one under consideration presently by the European Union. We show here that such legislative action would be morally unnecessary and legally troublesome. While AI legal personhood may have some emotional or economic appeal, so do many superficially desirable hazards against which the law protects us. We review the utility and history of legal fictions of personhood, discussing salient precedents where such fictions resulted in abuse or incoherence. We (...) conclude that difficulties in holding “electronic persons” accountable when they violate the rights of others outweigh the highly precarious moral interests that AI legal personhood might protect. (shrink)

In contrast to the recent rise to economic importance of offshore finance centres (OFCs), the topic of taxation has so far created little interest among scholars of corporate social responsibility (CSR). This paper makes two contributions to addressing this lacuna. Applying a range of influential normative theories of ethics, it first offers an ethical evaluation of tax havens. Second, the paper examines what use large firms that are headquartered in two OFCs—Bermuda and the Cayman Islands—make of formal CSR tools. The (...) emerging duplicity in tax havenbased companies professing social responsibility highlights once more the political nature of CSR, where at least some firms and/or industries can successfully limit government power to enact regulation as well as shape the discourse around CSR. The study of CSR in OFC-based firms thus calls into question the usefulness of the often quoted definition of CSR as going beyond the law. (shrink)

A complex network of ethico‐legal rules makes it difficult for health researchers in South Africa to lawfully recruit adolescents to the kinds of sensitive studies where it may be ethically appropriate to proceed without notifying parents or obtaining parental consent. This article responds to a recent proposal to amend the blanket requirement for mandatory parental consent presently contained in section 71 the South African National Health Act 61 of 2003 [NHA]. The proposed amendment is intended to bring the NHA into (...) alignment with South Africa's 2015 Department of Health Guidelines on Ethics in Health Research by permitting greater flexibility for a health research ethics committee to waive parental consent, and permit adolescents to consent independently. A lacuna in this proposal is highlighted with reference to the requirements of South Africa's Protection of Personal Information Act 4 of 2013 [POPIA]: Even if the NHA is amended as proposed, the goal of aligning South African law with prevailing ethics norms in South Africa would not necessarily be attained, as parental consent may still be required by POPIA. This article investigates whether this goal (of aligning the law with ethics) can be attained in a way that is compliant with POPIA. It is concluded that this is indeed possible in a number of ways, and that the best way to attain this goal is by requesting the South African Information Regulator to issue a guidance note to the effect that all health research projects that are approved by institutional health research ethics committees are to be regarded as being in the public interest, which would qualify such health research projects to be exempted from POPIA's consent requirements. (shrink)

Information communication technology is spreading fast and wide. Driven by convenience, it enables people to undertake personal tasks and make decisions more easily and efficiently. Convenience enjoys an air of liberation as well as self-expression affecting all areas of life. The industry for children's toys is a major economic market becoming ever more tech-related and drawn into the battle for convenience. Like any other tech-related industry, this battle is about industry dominance and, currently, that involves networked toys. Networked toys aim (...) to enhance convenience for children and parents alike. Increasingly difficult to resist, these convenient networked devices are also a societal game changer. Neatly nestled in a lacuna juris and surrounded by a lack of clinical evidence, networked toys raise complex ethical issues concerning human development. This article lays bare the regulatory nexus for networked toys and invites ethical thinking to fill the gap to ensure sufficient protection for all human developmental stages. Networked toys not only affect but also might interfere with child development. Therefore, the article initially summarises the four key psychological stages through which the neurological development of the human brain processes. Each of these stages involves vital windows for human development in cognitive, emotional and social dimensions. Missing any of these developmental windows changes an individual human for life. The article then takes a look at the two main legal frameworks protecting the stages of human development which are applicable to networked toys: First, the examination of the human rights framework with its major segments emanating from the fundamental rights to privacy for family and home, to a child's education as well as to personal data reveals the use of current networked toys as a shielded part of parenting which tends to be at odds with privacy and data protection requirements. Second, the product liability framework for toy manufacturers requires evidence-based causality for putting a child's safety at risk. Unfortunately, these legal frameworks fail to offer sufficient protection of the human developmental stages. There is a lacuna juris. Although networked toys involve the risk of negatively impacting human development in every dimension, clinical psychological studies are impossible to acquire as court evidence for product liability because they take too long to provide reliable data while exposing several generations of children to the examined risk in the process. Meanwhile the temptation of convenience continues to drive the industry and consumers of networked toys and devices, which are already impacting children of all age groups. Accepting this phenomenon as an element of cognitive dissonance in society and in science falls far short of an appropriate ethical balance. The need for creating such an ethical balance concerning networked toys is all the more imperative because even if the networked toy industry managed to eliminate all psychological risks for human development and every legal conflict with privacy and security, significant ethical and societal risks of networked toys remain due to inevitable technological bias. Against these mounting changes, it is suggested that only an ethical approach of interdisciplinary research and learning seems most promising to develop an appropriate equilibrium between the complex challenges posed by networked toys and the societal values at stake. (shrink)

The existing ethico-legal regulation of adolescent children's participation in health research in South Africa is currently unclear. The article interrogates the existing framework governing children's consent to research participation, with specific emphasis on discrepancies in consent norms in law and ethical guidelines. Against the backdrop of the constitutional directive that requires that a child's best interests are of paramount importance in every matter concerning the child, the article assesses whether sufficient consideration is given to children's evolving maturity and capacities when (...) consent to their participation in health research is sought. The article provides specific recommendations and proposes a legislative change to consent provisions in the National Health Act 61 of 2003 in order to address the existing lacunae and to align the framework with constitutional imperatives and international fundamental rights considerations. (shrink)

The author argues that the unity, coherence, and completeness of both the theory of law and the theory of politics and democracy throughout Bobbio’s work was produced by the fruitful connection that he established between the approaches of several different disciplines. Bobbio was able to connect legal theory and political philosophy, and to entwine theory itself, whether legal or philosophical, with meta-theoretical and methodological reflection. In Bobbio’s work even the theoretical-analytical approach was connected with an analytical history of ideas. Bobbio’s (...) capacity for synthesis and the systematic theoretical character of his investigations found specific expression, according to the author, in four fundamental connections: that between democracy and law; that between law and reason; that between reason and peace; and that between peace and human rights. This doctrinal framework, according to Ferrajoli, already suffices to establish Bobbio as a great teacher and thinker. Nonetheless, Ferrajoli also draws attention to certain aporias in Bobbio’s thought. Thus the author argues that Bobbio fails to recognize the influence of strictly defined constitutions on the legal order and continues to defend a merely formal conception of the validity of legal norms and of democracy. Bobbio retains a non-evaluative conception of legal science without considering the internal criticisms regarding the lacunae and antinomies that constitutional norms forcibly reveal with respect to both legal science and the practice of jurisdiction. (shrink)

Hobbes's unusual religious views in his classical work, Leviathan, are often seen as a product of his attempt to reconcile Christianity with his philosophical materialism. Yet given Hobbes's materialistic view in his earlier works too, this explanatory framework alone is not sufficient for grasping distinctive features of Leviathan. This article remedies this lacuna by paying close attention to an understudied aspect of the development of Hobbes's religious theory from The Elements of Law to Leviathan: his treatment of the supernatural and, (...) particularly, of matters of faith known by supernatural revelation as opposed to natural reason. I argue that over time Hobbes developed an epistemological analysis of supernatural revelation and refined his argument about the sense in which matters of faith are supernatural and about the extent to which they are found in the Bible. It was not materialism per se but the more sophisticated analysis of the supernatural in Leviathan that enabled Hobbes to admit the sphere of the supernatural to a much smaller extent than in De Cive and to discuss in detail what he sees as a matter of faith and beyond the scope of philosophy in De Cive. (shrink)

Los fundamentos de la ciencia jurídica, por F.C. von Savigny.--El carácter a-científico de la llamada ciencia del derecho, por J.G. von Kirchmann.--Las lagunas del derecho, por E. Zitelmann.--La lucha por la ciencia del derecho, por G. Kantorowicz.

Having been involved in a slew of recent scandals, many of the world’s largest technology companies embarked on devising numerous codes of ethics, intended to promote improved standards in the conduct of their business. These efforts have attracted largely critical interdisciplinary academic attention. The critics have identified the voluntary character of the industry ethics codes as among the main obstacles to their efficacy. This is because individual industry leaders and employees, flawed human beings that they are, cannot be relied on (...) voluntarily to conform with what justice demands, especially when faced with powerful incentives to pursue their own self-interest instead. Consequently, the critics have recommended a suite of laws and regulations to force the tech companies to better comply with the requirements of justice. At the same time, they have paid little attention to the possibility that individuals acting within the political context, e.g. as lawmakers and regulators, are also imperfect and need not be wholly compliant with what justice demands. This paper argues that such an omission is far from trivial. It creates a heavy argumentative burden on the part of the critics that they by and large fail to discharge. As a result, the case for Big Tech regulation that emerges from the recent literature has substantial lacunae and more work needs to be done before we can accept the critics’ calls for greater state involvement in the industry. (shrink)

Having been involved in a slew of recent scandals, many of the world’s largest technology companies (“Big Tech,” “Digital Titans”) embarked on devising numerous codes of ethics, intended to promote improved standards in the conduct of their business. These efforts have attracted largely critical interdisciplinary academic attention. The critics have identified the voluntary character of the industry ethics codes as among the main obstacles to their efficacy. This is because individual industry leaders and employees, flawed human beings that they are, (...) cannot be relied on voluntarily to conform with what justice demands, especially when faced with powerful incentives to pursue their own self-interest instead. Consequently, the critics have recommended a suite of laws and regulations to force the tech companies to better comply with the requirements of justice. At the same time, they have paid little attention to the possibility that individuals acting within the political context, e.g. as lawmakers and regulators, are also imperfect and need not be wholly compliant with what justice demands. This paper argues that such an omission is far from trivial. It creates a heavy argumentative burden on the part of the critics that they by and large fail to discharge. As a result, the case for Big Tech regulation that emerges from the recent literature has substantial lacunae and more work needs to be done before we can accept the critics’ calls for greater state involvement in the industry. (shrink)

Business ethics has gradually acquired a stable status, both as an academic discipline and as a practice. Stakeholdership is recognised as a guiding concept, business has widely accepted that it has a license to operate to win from society at large, and operational instruments such as codes of ethics and forms of ethical auditing and accounting take shape more and more. Yet lacunae remain. Three are mentioned explicitly. Business ethics has to improve its relations with business law, the concept (...) of competition deserves much more ethical attention than it has received up to now, and the shifting relations between the market, governmental agencies and civil society require the elaboration of an institutional business ethics. (shrink)

Most work at the intersection of law and the philosophy of action focuses on criminal responsibility. Unfortunately, this focus has been at the expense of reflecting on how the philosophy of action might help illuminate our understanding of issues in civil law. In this essay, focusing on Anglo-American jurisprudence, we examine the conditions under which a party to a legal agreement is deemed to have the capacity required to be bound by that agreement. We refer to this condition as the (...) capacity condition. We begin by showing how recent work on the metaphysics of powers might ground an account of the role of capacities in the metaphysics of intentional agency. After discussing the capacity to contract in Anglo-American jurisprudence, we show how the general ontology of capacities and agency sketched can ground and help clarify legal thinking about capacity. We argue that when we couple our understanding of capacity with relevant recent data from developmental neuropsychology, a lacuna in Anglo-American contract law becomes evident. Specifically, it appears that persons in early adulthood do not clearly satisfy the conditions requisite for them to satisfy the capacity condition. In the light of this, we sketch some potential solutions that are compatible with existing legal standards and would contribute to a more consistent application of the capacity condition in contract law. (shrink)

This paper addresses how states improve their responsiveness to violence against women in developing countries with little political will and few resources to do so. One key to engendering justice and improving responsiveness is building specialized institutions within the state that facilitate the implementation of laws addressing violence against women. Why and how do states engage in institution-building to protect marginalized populations in these contexts? I propose that developing countries are more likely to create and maintain specialized institutions when domestic (...) and international political and legal frameworks make the state more vulnerable to women’s demands, and when civil society coordinates with the state and/or international organizations to take advantage of this political opportunity. This coordination brings necessary pressure and resources that would be difficult, if not impossible, to deliver otherwise. This inter-institutional coordination is necessary for building and maintaining new state institutions and programs that help to monitor the implementation of laws, develop public policies, provide services for victims, and improve responsiveness of the justice system. This fills an important lacuna in the literature, which focuses on women’s state institutions as an important catalyst for responsiveness to violence against women, but does not explain how these institutions are initially constructed. (shrink)

Biobank-based research is not specifically addressed in Indian statutory law and therefore Indian Council for Medical Research guidelines are the primary regulators of biobank research in India. The guidelines allow for broad consent and for any level of identification of specimens. Although privacy is a fundamental right under the Indian Constitution, courts have limited this right when it conflicts with other rights or with the public interest. Furthermore, there is no established privacy test or actionable privacy right in the common (...) law of India. In order to facilitate biobank-based research, both of these lacunae should be addressed by statutory law specifically addressing biobanking and more directly addressing the accompanying privacy concerns. A biobank-specific law should be written with international guidelines in mind, but harmonization with other laws should not be attempted until after India has created a law addressing biobank research within the unique legal and cultural environment of India. (shrink)

This paper examines racial discrimination and algorithmic bias in predictive policing algorithms (PPAs), an emerging technology designed to predict threats and suggest solutions in law enforcement. We first describe what discrimination is in a case study of Chicago’s PPA. We then explain their causes with Broadbent’s contrastive model of causation and causal diagrams. Based on the cognitive science literature, we also explain why fairness is not an objective truth discoverable in laboratories but has context-sensitive social meanings that need to be (...) negotiated through democratic processes. With the above analysis, we next predict why some recommendations given in the bias reduction literature are not as effective as expected. Unlike the cliché highlighting equal participation for all stakeholders in predictive policing, we emphasize power structures to avoid hermeneutical lacunae. Finally, we aim to control PPA discrimination by proposing a governance solution—a framework of a social safety net. (shrink)

By revisiting late-Weimar debates between Carl Schmitt and two left-wing critics, Otto Kirchheimer and Franz L Neumann, we can shed light on the surprising alliance of populist politics with key tenets of economic liberalism, an alliance that vividly manifests itself in the political figure and retrograde policies of Donald Trump. In the process, we can begin to fill a striking lacuna in recent scholarly literature on populism, namely its failure to pay proper attention to matters of political economy. We can (...) also perhaps begin to make sense of the roots of Trump’s assault on the US federal state: formal law and its organizational basis, modern bureaucracy, represent potential restraints on the alliance of populism with neoliberalism. (shrink)

This article points out a problematic lacuna in our law on surrogate motherhood, namely the lack of objective criteria for evaluating the suitability of a surrogate mother. The recent case of Ex Parte KAF – a case in which a surrogate motherhood agreement confirmation application was dismissed by the Johannesburg High Court – demonstrated how this lacuna can cause conceptual disjunction between the court and the clinical psychologist who evaluates the candidate surrogate mother. The solution suggested in this article is (...) that clinical psychologists who evaluate candidate surrogate mothers should give urgent and careful thought to identifying such objective criteria, and start explicitly articulating these criteria in the reports that they file in surrogate motherhood agreement confirmation applications. This practice will give the court the opportunity to engage with such criteria and to develop precedents in this regard. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Ippolito Desideri S.J.: Opere e BibliografiaFrancis V. TisoIppolito Desideri S.J.: Opere e Bibliografia. By Enzo Gualterio Bargiacchi. Roma: Institutum Historicum S.I., 2007. 303 pp.One of the great lacunae in the history of Buddhist-Christian relations has been a lack of attention to the work of missionaries who reported on Buddhist belief and practice in various parts of East and South Asia. As a result, the important work [End (...) Page 166] of the Italian Jesuit Ippolito Desideri (1684–1733) has not received the attention it deserves. There had been centuries of missionary contact with the Buddhists of Sri Lanka, Japan, and China, but it was not until the mission of Desideri to Tibet (1716–1721) that the connection between the Buddhism of Southeast Asia and that of China and Japan could be established on the basis of Desideri’s study of Tibetan historiographical materials.Desideri was the first European to become fluent in Tibetan, the first to understand Buddhist Mahayana scholasticism, the first to grasp the meaning of Vajrayana ritual and practice, the first to describe the political situation of Tibet, the first to engage in serious debate with Tibetan lamas, and the first to write extensively on Catholic Christianity in Tibetan. Desideri left a body of works in Tibetan that have been translated into Italian by Giuseppe Toscano, SX, and published by IsMEO during the 1980s. Yet Desideri’s greatest achievement, the translation into Latin of Je Tsong Kapa’s Lam Rim Chen Mo, seems to have been lost. Moreover, the great intellectual and spiritual accomplishments of this Jesuit missionary were not much appreciated in his own lifetime, in part because of the political situation of the Society of Jesus at that time. As a result, although the overall facts of Desideri’s life were never completely forgotten, his writings lay hidden in the Jesuit Archives at Rome at precisely the time when those engaging in contact with Asian religions would have benefited from his insights.The author of this summary of the works of Ippolito Desideri and of the entire corpus of materials related to his oeuvre, Enzo Gualtiero Bargiacchi, is convinced that even today the works of this eighteenth-century Jesuit missionary have something to offer. I would agree with Bargiacchi, because I am equally convinced that the Desiderian project is in many ways a better model for interreligious dialogue between Christians and Buddhists than any of the more recent models that have been proposed and implemented since the Second Vatican Council. Recent essays by Trent Pomplun and Michael Sweet in Buddhist-Christian Studies (vol. 26, 2006) have shown that exchanges between missionaries and Buddhists in the seventeenth and eighteenth centuries were more profound and more fruitful than we are inclined to believe on the basis of superficial histories of the period. It seems that, with the suppression of the Jesuits (1773–1815), a certain retrenchment in the Catholic theology of grace operating outside the confines of the Church set in, muting the vibrant speculations of theologians seeking to make theological sense of the reports of missionaries such as Desideri.Desideri’s approach to the Buddhism of Tibet continues to challenge our own approach to interreligious dialogue. In the first place, Desideri underwent extensive linguistic, spiritual, and theological training as a young Italian Jesuit. He seems to have had unusual physical stamina and mental acuity, particularly for the study of languages. He learned Tibetan in about four months and immediately began writing a treatise, the Tho rangs, explaining Christianity to the Tibetan literati. As his Tibetan improved, he composed other, more sophisticated works in which he took up the topics on which Buddhists and Catholic Christians could agree (the contingency of the created world, the moral law) and on which they disagree (the law of karmic retribution, [End Page 167] emptiness, reincarnation, soteriology). Desideri sought to take seriously the philosophical positions of the lamas, with whom he lived and engaged in debate. He adapted his presentation of Christianity to the linguistic requirements of Tibet, and he did not hesitate to acknowledge the excellence he found in the moral character and intellectual refinement of the Tibetans. Finally, one detects a respect... (shrink)

The capacity to classify social groups legally is a central characteristic of modern states. Social groups, however, often resist the classificatory schemas of the state. This raises the following question: how do modern states exercise symbolic power in social fields beset by acute classification struggles? While existing scholarship has demonstrated that states exercise symbolic power, there has not been a concomitant effort to systematize and theorize the various strategies through which they do so. This article addresses this lacuna through examining (...) classification struggles centered on a number of “heterodox” religious groups that have historically been perceived as deviant from mainstream religions. Specifically, it looks at Falun Gong in China, Mormons in the United States, and Baha’is in Egypt. The analysis draws attention to three strategies through which states exercise symbolic power: coercive classification, wherein the deviant group is forcibly fixed as such in law; juridical normalization, whereby the deviant group is allowed to enter the mainstream by shedding “problematic” ritual practices; and legal erasure, whereby the deviant group is kept out of the official classificatory system so that it becomes a legal non-entity. In summary, this article both identifies the religious field as a critical domain in which states of various ideological orientations exercise symbolic power and deploys this analysis to identify distinct strategies through which they do so. (shrink)

The status of economic liberties remains a serious lacuna in the theory and practice of human rights. Should a minimally just society protect the freedoms to sell, save, profit and invest? Is being prohibited to run a business a human rights violation? While these liberties enjoy virtually no support from the existing philosophical theories of human rights and little protection by the international human rights law, they are of tremendous importance in the lives of individuals, and particularly the poor. Like (...) most individual liberties, economic liberties increase our ability to lead our own life. When we enjoy them, we can choose the occupational paths that best fit us and, in so doing, define who they are in relation to others. Furthermore, in the absence of good jobs, economic liberties allow us to create an alternative path to subsistence. This is critical for the millions of working poor in developing countries who earn their livelihoods by engaging in independent economic activities. Insecure economic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. conomic liberties leave them vulnerable to harassment, bribery and other forms of abuse from middlemen and public officials. This book opens a debate about the moral and legal status of economic liberties as human rights. It brings together political and legal theorists working in the domain of human rights and global justice, as well as people engaged in the practice of human rights, to engage in both foundational and applied issues concerning these questions. (shrink)

Racism as an independent topic of investigation in philosophy has considerably developed since the 1990s, when it appeared as part of growing debates that, on the one hand, investigated the political meaning of race and, on the other, its ontology and whether it existed at all. Likewise, with the idea of racism, its broadly normative meaning is critiqued by some philosophers, while others ask how best to conceive of it and identify its immorality. There were a few early and significant (...) forays in philosophy about the nature of racism, of which three works stand out because of the way they set the terms of the debate: David Theo Goldberg's Racist Culture, Charles W. Mills’ The Racial Contract, and Jorge L.A. Garcia's “The Heart of Racism.”1 This collection reacts to the latter fork in the discussion but does so in ways that significantly touch on the former.The collection begins with Jorge L. Garcia's “Virtue Ethics in Social Theory: Defending a Volitional Analysis of Racism from Tommie Shelby's Challenges.” It is a clarification and defense of his influential volitional analysis of racism (VAR) from three prominent objections: that VAR inadequately accounts for the immorality of racism because it relies on the assumed wrongness of racism built into ordinary usage of the term ‘racist;’ that it mistakenly separates intention from belief; and that it does not fully account for the racism of some troubling mental states that cannot be traced back to a racist ill-will. Garcia's account of racism as fundamentally rooted in racist ill-will, along with Lawrence Blum's, is representative of agent-centered theories of racism. Not only do they attempt to explain individual or personal racism, but they also hold that racism in institutions, structures, or systems traces back to the racism of persons.Current accounts of structural racism, however, claim that it exists and operates independently of infection from intentionally racist persons, that the focus on racist persons cannot adequately account for how racism works in society, and that, instead, we should concentrate on structures and ideologies. Amelia Wirts sharply defends this view in her, “What does it mean to say ‘The Criminal Justice System is Racist’?” She explains how structural racism applies to America's criminal justice system and other “intermediate” (between individual and societal level) structures. Wirts argues that personal accounts of racism, and in particular Garcia's VAR, do not adequately account for the patterns of racial disparity in the criminal justice system or its disproportionate harm to black people. She advocates, instead, for a patterned view of structural racism, the patterns of which operate “as if it were designed to disproportionately harm” some racialized group. Additionally, Wirts adds that such patterns are particularly racist when they fuel racist ideological symbols, as the criminal justice system does in relation to the idea of the black criminal.Structural analyses of racism are powerfully instructive, and Alisa Bierria, in “Structural Racism Within Reason,” offers an account that takes an epistemic turn that advances our understanding of their meaning. More than the idea that personal and structural racism beget each other in continuous looping effects, and more than the view that racism is best understood as an ideology that provides the content to racist attitudes or policy proscriptions, she argues that structural racism structures reason. Drawing on the 2012 case of Marissa Alexander, who unsuccessfully tried to use Florida's Stand Your Ground Law to justify her firing a warning shot at her estranged, abusive husband to protect herself from his murderous threat, Bierra argues that structural racism extends constructed and controlling intentions onto its targets, and, as in the case she discusses, it uses those constructed and fictional intentions to justify their punishment and depriving them of equal justice.Structural analyses of racism are essential additions to the philosophical understanding of racism that have appropriately challenged the centrality of agent-centered accounts. The increasing academic focus on structural explanations, however, along with the current overuse of “systemic racism” in popular discourse, threatens to eclipse the value of accounts of agent-centered accounts. In “Is Racism Essentially Systemic?” Michael Hardimon counsels against this trend. He reminds us that racism is not essentially systemic, and that the dominance of structural explanations could obscure its other forms and even the proper understanding of structural racism. Indeed, structures once constructed might operate independently of human intention, but they are designed, initiated, and often operated by persons.After considering the direction of the current philosophical discussion about the meaning of racism and its immorality, the next set of articles expands the discussion into matters of class, xenophobia, and white nationalism. Lawrence Blum's “Race and Class Together” starts it off. Blum builds class into his analysis of racism and critiques its absence in anti-racist theory. He argues that paying attention to class is required to secure justice for the victims of racism because pursuing justice is often a matter of both. Blum contends that race and class are “normatively distinct axes of injustice” and that, depending on the question, racial injustice needs to be addressed separately. However, there are aspects of racial injustice that can only be dealt with through a class analysis and require class or combined class–race focused policies. Pointing to the fact that many of the members of groups targeted by racism (he considers blacks, Indigenous peoples, and Latinxs) share cross-class interests, which includes shared interests with some whites, which they do not share with more economically privileged members of their own groups, Blum argues that these interests should be addressed through “class-focused policies,” in a manner that will secure justice for disadvantaged racial groups.Shifting from the class-race analysis, José Jorge Mendoza, in “‘Go Back to Where You Came From!’ Racism, Xenophobia, and White Nationalism,” turns our attention toward white nationalism to examine whether it is best understood as an expression of racism or xenophobia. Although he recognizes the importance of xenophobia in white nationalism, Mendoza does not neglect its connections with racist ideas. However, he acknowledges that emphasizing the role of race in condemnations of white nationalism risks overextending the concept of race, i.e., in regards to pan-racial groups, because some members of those groups are racially identified as white. Thus, the charge of racism against white nationalism in such cases may not clearly apply. To deal with those cases, Mendoza cleverly decouples the ideas of “radicalization” and “racial formation,” and he puts forward a new concept, “racial disintegration,” to account for the operation and shifting targets of white nationalism.In the final piece, David H. Kim and I discuss xenophobia and racism in the case of “Anti-Asian Racism.” We move from general theories of racism to inquire about what is at the base of anti-Asian racism. Little is said in contemporary accounts of racism about anti-Asian racism. This is due, in part, to the high level of abstraction in those discussions but also because much of the literature takes anti-blackness as the model of racism. Our piece addresses this lacuna in a manner not beholden to the black-white binary. We discuss how the idea of anti-Asian racism is a conceptual problem in the American context dominated by that binary. We then argue that xenophobia as a form of civic ostracism, and to some extent xenophilia, play a particular role in how anti-Asian racism functions and its immorality.The pieces in this collection resonate with current events and controversies involving racism and illustrate the potential of the debate to relate to and speak those events, not just to the specialized interests of a cloistered academic conversation. Each piece demonstrates the potential for extending vital lines of debate and discussion that touches the raw nerve of the public discussion of racism. (shrink)

The use of idealized models in science is by now well-documented. Such models are typically constructed in a “top-down” fashion: starting with an intractable theory or law and working down toward the phenomenon. This view of model-building has motivated a family of confirmation schemes based on the convergence of prediction and observation. This paper considers how chaotic dynamics blocks the convergence view of confirmation and has forced experimentalists to take a different approach to model-building. A method known as “phase space (...) reconstruction” not only reveals a lacuna in the philosophical literature on models, it also fails to conform to conventional views about how models are used to confirm a theory. (shrink)

The decision of the House of Lords in Gillick v West Norfolk Area Health Authority carved out a safe space for competent minors to confidentially access sexual and reproductive health care and advice in the UK. Ireland is one of the few common law jurisdictions that has not endorsed Gillick or a similar mature minor doctrine, nor has it securely legislated for the right to consent of those aged 16 and 17 years. The legal lacuna created by this deficiency has (...) left young persons in Ireland seeking sexual and reproductive healthcare, and the clinicians who provide this, in a challenging place. While this void has been partially filled with policy statements by bodies such as the Irish College of General Practitioners and the Health Service Executive, nonetheless the legal shortcomings leave both a sense of insecurity, and real world difficulties for adolescents seeking to access to sexual and reproductive healthcare. (shrink)

In Re JB, a local authority, concerned with the risk the respondent posed to vulnerable women, successfully appealed against an order made in the Court of Protection that declared JB, an autistic man with impaired cognition, possessed capacity to consent to sexual relations. In this recent decision, the Court of Appeal has arguably reset the last 15 years of jurisprudence concerning P’s capacity to make decisions in regard to sexual relations. Previous case law focused on P’s ability to consent to (...) such relations, and whether P understood the information relevant to that decision. Notwithstanding the abundance of legal authority, including the recent appellate judgments of Hayden J in London Borough of Tower Hamlets v NB and AU [2019] EWCOP 27. and B v A Local Authority [2019] EWCA Civ 913. there was a lacuna in the existing law in relation to what information was relevant for the purposes of assessing the issue of capacity to consent to sexual relations. Judges have traditionally adopted a protectionist stance in understanding “the information relevant to the decision” under s3 of the Mental Capacity Act 2005, with an emphasis on whether P understood the risks of pregnancy and sexually transmitted diseases. However, the Court of Appeal in Re JB has broadened its interpretation of ‘relevant’ information to also include the ability to understand the importance of a partner’s consent to such relations. This is a welcome change to previous courts’ interpretations of the ‘nature’ of the sexual act, moving from an approach focused on the physical sexual mechanics to one which views the nature of sex as a mutually consensual engagement. However, a fundamental shift in how we view such cases is likely to have far-reaching consequences, particularly for local authorities and professionals seeking guidance in relation to their care planning. (shrink)

The anonymous Life of King Edward, written about the time of the Norman Conquest, is an important and intriguing source for the history of Anglo-Saxon England in the years just before 1066. It provides a fascinating account of Edward the Confessor and his family: his wife Edith, his father-in-law Earl Godwin, and the queen's brothers Tostig and Harold. The foundations of the legend of St Edward the Confessor are apparent from the version of the work supplied by the unique MS (...) of c.1100. Professor Barlow explores the problems raised by this anonymous work in its now incomplete MS, and examines the development of the cult of St Edward. He also investigates the life and works of Folcard and Goscelin of St Bertin, possible authors. Recent discoveries have enabled Professor Barlow to reconstruct in part the lacunae in BL Harley MS 526 with texts closer to the original. For the second edition, he has undertaken a complete revision of the book. (shrink)

The German philosopher, Johann Gottlieb Fichte, has long been recognized as an important and original figure in the history of philosophy and Western thought and as a seminal influence upon the Romantic tradition. This book focuses on Fichte's contributions in political theory as set out in his Foundations of Natural Right. The essays, which examine such issues as Fichte as a social contract theorist, his theory of gender relations and his theories on punishment and the criminal law among many other (...) topics, remedy what has been a striking lacuna in the existing scholarly literature. (shrink)

This article brings Édouard Glissant's theory of creolization into critical conversation with Luce Irigaray's sexuate difference theory and suggests creolization as a process capable of reconfiguring place and origin. Such a creolized conception, the article suggests, fissures narratives of legitimacy, possession, and lawful order, pseudo-claims utilized to dismiss antiracist protests. The article traces Irigaray's critique of woman as place and origin with her conception of the interval. It examines how Glissant's analysis of the womb-abyss clarifies and strategically obscures racialization as (...) an ongoing lacuna in Western thought. By deploying a rhizomatic network of relayed traces, the essay examines Glissantian notions of chaos, trembling, and detour to articulate sociopolitical movements that reveal and undermine the sexual economy of the neo-Plantation. Both thinkers, the author suggests, bring together place, origin, and movement to construct two radically different but strategically valuable theories that have yet to be put in a sustained, critical conversation. By positioning each theorist within their own framework, discourse, and socio-ethical concerns, the author offers ways that creolization and sexuate difference theory clarify issues contemporary American feminism tends to gesture toward as “intersectional” issues of gender, sex, and race. (shrink)

Most significant policy issues facing humanity reach across national borders. Consequential political decisions with cross-national effects are frequently made by states, non-state organisations, and corporations. Under these circumstances, it is widely acknowledged that it is important to conduct deliberation at the global level. Below this shallow agreement, however, lies deep disagreement about a crucial question: how, if at all, is it morally permissible for deliberation to result in a set of international laws and rules that are imposed on a world (...) population which is deeply pluralistic in its moral and political attitudes? When the equivalent question is asked within the confines of a political community, one prominent answer is by reference to a standard of public reason. While there is a large literature about public reason at the domestic level, the literature on global public reason is comparatively underdeveloped. The paper addresses this lacuna in two ways. First, it motivates the global public reason project, and conceptualises the nature of the challenge that accounts of global public reason face. Second, it demonstrates that, by their own evaluative standards, existing accounts of global public reason are unable to satisfy both desiderata simultaneously, being either too ‘thick’ or too ‘thin’. (shrink)

One of the most important philosophical principles in contemporary natural science is the principle of the universality of evolutionary development , which was argued with much force and depth in F. Engels's The Dialectics of Nature. For the more than a century that has passed since Engels's sweeping synthesis of knowledge in the natural sciences, his revelation of the unity of the processes of evolution in inanimate and animate nature, including the inevitably and law-governed appearance of its "highest flower, the (...) thinking mind," where appropriate conditions for that appearance arise, this principle of development has assisted in the achievement of many impressive advances. The general outlines of the evolutionary process of nature, in its infinite diversity, are now emerging in ever sharper relief, although our knowledge of that process still contains many rather serious lacunae. It is significant to note that the progress of natural science leads not only to modifications but often even to radical revisions of many notions about the evolution of nature, including those that seemed unchallengeable. (shrink)

This article points out a problematic lacuna in our law on surrogate motherhood, namely the lack of objective criteria for evaluating the suitability of a surrogate mother. The recent case of Ex Parte KAF – a case in which a surrogate motherhood agreement confirmation application was dismissed by the Johannesburg High Court – demonstrated how this lacuna can cause conceptual disjunction between the court and the clinical psychologist who evaluates the candidate surrogate mother. The solution suggested in this article is (...) that clinical psychologists who evaluate candidate surrogate mothers should give urgent and careful thought to identifying such objective criteria, and start explicitly articulating these criteria in the reports that they file in surrogate motherhood agreement confirmation applications. This practice will give the court the opportunity to engage with such criteria and to develop precedents in this regard. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:The Politics of Practical Reason: Why Theological Ethics Must Change Your Life by Mark RyanDavid ElliotThe Politics of Practical Reason: Why Theological Ethics Must Change Your Life Mark Ryan eugene, or: cascade books, 2011. 229 pp. $20.80If the spirited debate between Stanley Hauerwas and Jeffrey Stout remains front-page news in theological ethics, then Mark Ryan’s subtle and penetrating The Politics of Practical Reason will help keep it there. (...) Ryan argues that practical reason is the hinge of ethical thinking and that it is “political” in the sense of shaping the community or polis. Given this hinge, the pressing question is of course, “Whose practical reason?” To answer this, Ryan probes major contemporary ethicists from Charles Taylor to Alasdair MacIntyre, but the book always circles back to Hauerwas and Stout. Their debate is ultimately decided by proxy, through a mediating philosopher whose work on practical reason Ryan sees both as the gold standard and as the indispensable background for understanding Hauerwas. Expecting this to be MacIntyre, the reader may be surprised—and perhaps even convinced—that the philosopher who best explains and possibly vindicates Hauerwas is in fact Elizabeth Anscombe, Ludwig Wittgenstein’s protégé, close friend, and translator.The book opens with Anscombe’s Intention (1957), which Donald Davidson called “the most important treatment of action since Aristotle.” In it, Anscombe argued that intention presupposes desire and is declared in public language within a context of social practices presupposed for agency to be intelligible. The implication is that we form intentions as members of a community with a particular form of life sustained by social practices. With human desire as its motivating nisus, Ryan insists that intention “is part of the very form of practical reasoning, then, to be political” (144).Having retrieved Anscombe’s model of practical reason, Ryan examines the field of contemporary ethics to see who measures up. Charles Taylor fails to place agents in a particular community, locating us instead in that bloated abstraction called “modernity.” Ryan therefore concludes that Taylor’s is an “ethics for anybody,” which leaves the self finally disembodied (94–98). Stout fares little better due to his refrain that Hauerwas went astray when he abandoned justice talk. Ryan counters that Stout’s sort of justice should be abandoned; lacking a substantive vision of the good and a teleology of freedom, Stout’s justice is reckoned a blind guide who cannot see or say why the polis should pursue one end and not another. Hauerwas, on the other hand, specifies a particular polis within which practical reason can intelligibly function: the church. It has [End Page 218] a substantive vision of the good (i.e., the peaceable kingdom) located in a scriptural narrative displayed by social practices requiring formation in the virtues (119–21). Ryan therefore endorses Hauerwas’s politics of practical reason, indebted to MacIntyre and made possible by Anscombe.I see one lacuna in this otherwise excellent book. Ryan seemingly advocates a pragmatic model of practical reason that is wholly internal to the polis rather than grounded in “truths of human nature as such” (101). This makes Anscombe an uneasy ally. Her “Modern Moral Philosophy” famously proposed a retrieval of virtue that required an overhauled “account of human nature … and above all of human flourishing” (41). This move opened the door for ethical naturalism, perhaps even natural law—both of which Anscombe and the later MacIntyre endorse. But these look suspiciously like what Ryan calls an “ethics for anybody.” So in the end are Anscombe and MacIntyre turncoats, or do Hauerwas and Ryan not follow them far enough? This crucial question remains unanswered.Despite this wrinkle, Ryan’s book is the best intervention in the Hauerwas–Stout debate that we now have. It throws light on Hauerwas, challenges Stout, shows why Anscombe matters, and gives practical reason its generous due. Philosophically deft and charitable in tone, it deserves to be read and studied as a major contribution to the field.David ElliotUniversity of Notre DameCopyright © 2015 Society of Christian Ethics... (shrink)

Shame is a ubiquitous and highly intriguing feature of human experience. It can motivate but it can also paralyse. It is something which one can legitimately demand of another, but is not usually experienced as a choice. Perpetrators of atrocities can remain defiantly immune to shame while their victims are racked by it. It would be hard to understand any society or culture without understanding the characteristic occasions upon which shame is expected and where it is mitigated. Yet, one can (...) survey much of the literature in social and political theory over the last century and find barely a footnote to this omnipresent emotional experience. The two books under review aim to rectify this lacuna. (shrink)

Abstract In an important text, A Thousand Teachings, sometimes overlooked by scholars, Sankara expounds non?dualist religion. This article analyses Sankara's thought for its theoretical and practical perspectives. First, the discussion views non?duality from the viewpoint of ignorance. This pluralistic/dualistic perspective obscures the unenlightened seeker's vision of the Ultimate Truth. Secondly, the study examines Sankara's introduction of a transitional idea, Unevolved Name?and?Form (avy?krte n?mar?pe). Such an idea assists the seeker's intellectual progress from the state of ignorance to a rational understanding leading (...) toward nonduality (Advaita Ved?nta). Finally, the exposition clarifies Sankara's expression of the ?knowledge of Brahman?. This fulfilling wisdom affects a transformation of the life experience of the unenlightened. Subsequently disciplined in meditation (parisamkhy?na), the persistent seeker develops into an experiencer of the non?duality (advaitav?da). (shrink)

The publication of Dr. Warren E. Blake's edition of the romance of Chariton has at last made it possible to know what the tradition of the text amounts to and form some opinion of its principal weaknesses. That these include lacunae will be obvious to anyone who even glances through his apparatus criticus; I think there are at least three which neither he nor any of the former editors has noted. The supplements I propose are of course mere examples (...) of how they might be filled; their existence seems pretty certain, but no more than the general sense of what is missing is likely to be got unless some new papyrus or other unexpected find puts us in possession of more evidence. (shrink)