Explanatory economic analysis of the common law has long been subject to deep philosophical skepticism for two reasons. First, common law decisions appear to be cast in the language of deontic morality, not the consequentialist language of efficiency. For this reason, philosophers have claimed that explanatory economic analysis cannot satisfy the transparency criterion, which holds that a legal theory's explanation must provide a plausible account of the relationship between the reasoning it claims judges actually use to decide cases and the (...) express reasoning judges provide in their opinions. Philosophers have doubted that the economic analysis has a plausible account of why judges would use deontic moral terms to explain cases they decide using consequentialist economic reasoning, arguing instead that only a deontic moral account of judicial reasoning can be squared with the judicial use of deontic moral language. Second, the common law has a bilateral structure, in which a plaintiff's right to recover and a defendant's duty to compensate are treated as correlative. Philosophers have observed that this structure seems custom tailored to retrospective moral rights adjudication and ill suited to prospective efficient regulation. Recently, two philosophers, Jules L. Coleman and Stephen A. Smith, have developed these ideas into a full-scale assault on the explanatory credentials of the economic analysis. I defend the economic analysis by arguing that the bilateral structure of the common law either constitutes a "second best" approach to providing incentives for efficient behavior, as economic analysts have maintained, or that it is the vestigial remnant of the common law's originally deontic conception. I also claim that the economic analysis satisfies the transparency criterion by arguing that terms with a deontic plain meaning have acquired a consequentialist contextual meaning within the common law. Although this "contextualist convergence" thesis is counterintuitive, I build on Coleman's semantic theory to explain how it is possible. To demonstrate that it is plausible as well, I argue that evolutionary forces would have naturally led to this result over the course of the common law's development. In particular, I claim that the substantial indeterminacy of deontic moral theory, and the superior determinacy of the economic analysis, explains why judges would be intuitively attracted to reasoning that is best reconstructed in economic terms, notwithstanding the superior normative force of deontic moral theory. Thus, the core of my defense of explanatory economic analysis is that its critics overlook the central theoretical and practical role determinacy plays in explanation and justification generally, and in the explanation of judicial reasoning in particular, where determinacy is prized, if not above all else, no less than any other virtue. (shrink)

Objectives:Over the past two decades, all U.S. states have incorporated alcohol ignition interlock technology into sentencing laws for individuals convicted of driving while intoxicated. This article provides the first 50-state summary of these laws to include changes in the laws over time and their effective dates. This information is critical for policy makers to make informed decisions and for researchers to conduct quantitative evaluation of the laws.Methods:Standard legal research and legislative history techniques were used, including full-text searches in the (...) Westlaw legal database and identification of state session laws. Because ignition interlock device laws often change over time, we identified the date of each law's initial enactment as well as the effective date of each law in its current form.Results:Beginning with California and Washington in 1987, all 50 states have enacted IID laws as a sentencing option for DWI offenders. Initially, most of these laws were discretionary. Today, however, 48 states mandate IID installation for at least some types of DWI offenders to maintain lawful driving privileges. Of these, 27 mandate an IID for all offenders; seven mandate an IID for repeat offenders only; and 21 for some combination of specific groups of DWI offenders, including repeat offenders, offenders with a blood alcohol content above a legislatively-specified level, and aggravated offenders.Conclusion:States have wrestled with a number of IID policy issues, including for whom to mandate IIDs and whether to suspend a license for DWI prior to reinstating driving privileges with or without an IID. By understanding how state interlock laws differ, policy makers and researchers can ultimately better ascertain the impact of these laws. (shrink)

Analysing sexual harassment law in British Columbia, this paper argues that in highly sexualised work environments, in which practices including sexual ‘jokes’ or innuendo may be common, law embodies and (re)creates the gendered subtext of the workplace. When a complaint of sexual harassment from a sexualised workplace is raised in a legal forum, a complainant has an obligation to clearly object to the sexual remarks, ‘jokes,’ banter, etc.—which may be the ‘norm’—to show the conduct in question was unwelcome. At the (...) same time, however, a workplace may be structured, in part by law, in a way that restricts employee resistance to uncomfortable sexual experiences. This is the case, I argue, for women working in full-service restaurants when it comes to sexual interactions with customers. This paper explores how restaurant work, in the Canadian context with a focus on the province of British Columbia, is organised in a manner that makes women vulnerable to enduring sexually harassing practices as a routine part of their jobs. (shrink)

The phenomenon of ambivalence is an important one for any philosophy of action. Despite this importance, there is a lack of a fully satisfactory analysis of the phenomenon. Although many contemporary philosophers recognize the phenomenon, and address topics related to it, only Harry Frankfurt has given the phenomenon full treatment in the context of action theory - providing an analysis of how it relates to the structure and freedom of the will. In this paper, I develop objections to Frankfurt's (...) account, all revolving around the charge that his account contains a serious ambiguity between willing and identifying. With such objections in place, I then develop an analysis that avoids the difficulties and ambiguities that Frankfurt's analysis is prey to. I briefly distinguish ambivalence from other types of internal conflict. This paper aims to offer conceptual clarification on the phenomenon of ambivalence, which will then allow for discussions about the normative merits and demerits of ambivalence, the effects of ambivalence on autonomous action, and methods of resolution of ambivalence. (shrink)

The Oxford English Dictionary defines fulfilment as ‘satisfaction or happiness as a result of fully developing one's potential or realizing one's aspirations; self-fulfillment’. Not only has the idea of fulfilment underpinned ‘approximately twenty centuries of philosophy’ as Lefebvre notes, it plays an indispensable role in both popular and scholarly accounts of education and upbringing. Experiences of education, of upbringing and of ‘life lessons’, however, are so often not about the fulfilment of oneself, about the discovery and actualisation of one's (...) class='Hi'>full potential. Such experiences instead involve moments of sometimes irreparable failure and loss—a matter that has not received a great deal of attention in educational research and theory. After briefly examining the way that fulfilment is favourably framed both in humanistic psychology and in neo-humanist Bildungstheorie, this paper considers some of the exceptions to the nearly ubiquitous identification of education with fulfilment: Arthur Schopenhauer's view of the irrationality of human (developmental) experience and Ludwig Wittgenstein's use of the term ‘conditioning’ (Abrichtung) in some of his accounts of learning and socialisation. We then focus on failure and loss in education through an overview of the pedagogical theory of O.F. Bollnow. Bollnow, as is gradually being recognised in English-language scholarship, saw moments of uncertainty, disorientation and above all crisis as indispensable in educational experience—for both student and teacher. In this way, we show that instead of being the pursuit of self-fulfilment, education is unavoidably a matter of difficulty, disruption and also failure. It reshapes us, and this reshaping can be seen as being as much about formation as it is about deformation. (shrink)

The Oxford English Dictionary defines fulfilment as ‘satisfaction or happiness as a result of fully developing one's potential or realizing one's aspirations; self-fulfillment’. Not only has the idea of fulfilment underpinned ‘approximately twenty centuries of philosophy’ as Lefebvre notes, it plays an indispensable role in both popular and scholarly accounts of education and upbringing. Experiences of education, of upbringing and of ‘life lessons’, however, are so often not about the fulfilment of oneself, about the discovery and actualisation of one's (...) class='Hi'>full potential. Such experiences instead involve moments of sometimes irreparable failure and loss—a matter that has not received a great deal of attention in educational research and theory. After briefly examining the way that fulfilment is favourably framed both in humanistic psychology and in neo-humanist Bildungstheorie, this paper considers some of the exceptions to the nearly ubiquitous identification of education with fulfilment: Arthur Schopenhauer's view of the irrationality of human (developmental) experience and Ludwig Wittgenstein's use of the term ‘conditioning’ (Abrichtung) in some of his accounts of learning and socialisation. We then focus on failure and loss in education through an overview of the pedagogical theory of O.F. Bollnow. Bollnow, as is gradually being recognised in English-language scholarship, saw moments of uncertainty, disorientation and above all crisis as indispensable in educational experience—for both student and teacher. In this way, we show that instead of being the pursuit of self-fulfilment, education is unavoidably a matter of difficulty, disruption and also failure. It reshapes us, and this reshaping can be seen as being as much about formation as it is about deformation. (shrink)

What might it be to write a post-colonial social science? And how might the intellectual legacy of Chinese classical philosophy—for instance Sun Tzu and Lao Tzu—contribute to such a project? Reversing the more usual social science practice in which EuroAmerican concepts are applied in other global locations, this paper instead considers how a “Chinese” term, _shi_ might be used to explore the UK’s 2001 foot-and-mouth epidemic. Drawing on anthropological insights into mis/translation between different worlds and their alternative ways of knowing (...) and being, the paper explores that epidemic in three differently inspired _shi_-inflected “empirical” accounts. The first uses Sun Tzu’s strategic understanding of _shi_ to tell a conventionally representational story. The second resists the causes and background factors implied in standard social science by offering a “light” and _shi_-inflected form of knowing. And the third combines the referentiality of social science with a Lao Tzu-informed commitment to the paradoxes of normative epigram. This third narrative thus illustrates the possible features of a situated and _shi_-inflected social science that recognizes that it participates in the contexted and immanent flows and counterflows of things in the world. The paper concludes by noting that such a _shi_-inflected social science is experimental, and suggests that it is important to explore a range of ways of reversing the flow of concepts between EuroAmerica and other global locations. (shrink)

This essay examines the theology of the nineteenth century Danish theologian and churchman Hans Lassen Martensen, focusing on the disputed question of the kenotic character of Martensen's Christology. A survey of the scholarship on this question is followed by discussions of Martensen's doctrine of God and his Christology, giving particular attention to his controversial notion of the double life of the Logos, i. e. the view that the Logos continued to enjoy an unlimited divine existence in the sphere of eternity (...) while simultaneously living a limited, earthly human existence for the duration of the incarnation. The essay concludes by arguing that Martensen has developed a form of Nestorianism and that his Christology can best be classified as ‘Nestorian kenoticism,’ i. e. an eccentric and problematic form of Christology which affirms the abandonment by the logos ensarkos of the divine attributes during the incarnation, while at the same time insisting that the logos asarkos remains unaffected and in full possession of his powers. (shrink)

If the bindingness of morality was to rest on something as ‘subjective’ as the non-cognitivist says it does, the grouse goes, and morality itself would come down crashing. Nothing less than an ‘objective’ source of normativity, it is supposed, could hold morality in orbit. Some of these worries automatically morph into worries about the projectivist model of normativity of law as well: one which understands the authority or normativity of law in terms of subjective attitudes taken towards (...) the law. As well as the stock worries about non-cognitivism, there are some additional ones that the projectivist model brings in its wake that it cannot account for the ‘uniform’ bindingness of law and that a subjective source of normativity of law based on mental states is unintelligible. This essay makes the case for acquitting the projectivist model of normativity of law from the above charges. But the route to that necessarily leads through first acquitt... (shrink)

[full article, abstract in English; abstract in Lithuanian] Armstrong’s theory of laws and causation may be articulated as something like the following, which we may refer to as the received view: “Laws are intrinsic higher-order relations of ensuring between properties. The instantiation of laws is identical with singular causation. This identity is a posteriori.” Opponents and advocates of this view, believe that it may fairly and correctly be attributed to Armstrong. I do not deny it; instead I seek to (...) reconsider the received view, specifically by treating it as a part of Armstrong’s metaphysics. The main features that should concern us are truthmaker theory and the formal account of the constitutive parts of states of affairs. I also discuss Bird’s ultimate argument against Armstrong and show how its impact is weakened by this proper reading. (shrink)

Although Charles S. Peirce, strictly speaking, never formulated a ‘full-blown’ normative theory—a single over-all architectonic system—we believe that there lies within his work a valuable sketch of the ideal for feeling, action, and thought, and how this ideal should be followed, and in connection to this, Peirce offered a model for rational behaviour, including self-control. In the following essay we will try, modestly, to draw a rough outline of this sketch. Firstly, we will focus on the three normative sciences, (...) their relationship and their task of finding out how feeling, action and thought ought to be controlled. Then, we will take a look at the sign-universe. The very universe is a sign-universe and within this evolutionary universe feeling, matter and thought incessantly melt together into ‘concrete reasonableness’; according to Peirce, rendering the world more reasonable. This is the Summum Bonum that man can and indeed should pursue. Hence it makes absolutely no sense to speak of the three normative sciences out of this metaphysical or cosmological context. Finally, we will try to see in what way rationality can be said to fall within the spheres of self-control, bearing in mind that self-control is directly related to conditional purpose. (shrink)

The Patient Protection and Affordable Care Act of 2010 (ACA) contains many provisions intended to increase access to and lower the cost of health care by adopting public health measures. One of these promotes the use of at-work wellness programs by both providing employers with grants to develop these programs and also increasing their ability to tie the price employees pay for health insurance for participating in these programs and meeting specific health goals. Yet despite ACA's specific alteration of three (...) different statues which had in the past shielded employees from having to contribute to the cost of their health insurance based on their achieving employer-designated health markers, it chose to leave alone recently enacted rules implementing the Genetic Non-Discrimination Act (GINA), which prohibits employers from asking employees about their family health history in any context, including assessing their risk for setting wellness targets. This article reviews how both the changes made by ACA and the restrictions recently put place by GINA will affect the way employers are likely to structure Wellness Programs. It also considers how these changes reflect the competing social goals of both ACA, which seeks to expand access to the population by lowering costs, and GINA, which seeks to protect individuals from discrimination. It does so by analyzing both positive theories about how these new laws will function and normative theories explaining the likelihood of future friction between the interests of the population of the United States as a whole who are in need of increased and affordable access to health care, and of the individuals living in this country who risk discrimination, as science and medicine continue to make advances in linking genetic make-up to risk of future illness. (shrink)

Bedbugs are tiny, wingless insects which feed on mammal blood and leave behind painful, itchy sores. Although they can live in other settings, they are most commonly found in warm, dark places inhabited by humans, like beds. After being absent in the United States for over 60 years, thanks to powerful pesticides, bed bugs, have returned in force and are present in every state and nearly every city. For reasons not entirely understood, bed bugs have developed resistance to traditional pesticides (...) such as Permethrin and are therefore difficult to control. Although commonly believed to be associated with dirty housekeeping and associated with substandard housing, bed bugs are equally likely to be present in five-star hotels as they are in homeless shelters. (shrink)

While the image of the slave as the antithesis of the freeman is central to republican freedom, it is striking to note that slaves themselves have not contributed to how this condition is understood. The result is a one-sided conception of both freedom and slavery, which leaves republicanism unable to provide an equal and robust protection for historically outcast people. I draw on the work of Frederick Douglass – long overlooked as a significant contributor to republican theory – to show (...) one way why this is so. Focusing the American Revolution, the subsequent republican government established new political institutions to maintain the collective interests of the whole population. The political revolution was held in place by processes of public reason that reflected the values and ideas of the people that had rebelled. The black population, however, had not been part of this revolution. After emancipation, black Americans were required to accept terms of citizenship that had already been defined, leaving them socially dominated, subject to the prejudices and biases within the prevailing ideas of public discourse. Douglass argued that republican freedom under law is always dependent on a more fundamental revolution, that he calls a ‘radical revolution in thought’, in which the entire system of social norms and practices are reworked together by members of all constituent social groups – women and men, black and white, rich and poor – so that it reflects a genuinely collaborative achievement. Only then can we begin the republican project of contestatory freedom as independence or non-domination that today’s republicans take for granted. (shrink)

The passing of the Patient Protection and Affordable Care Act is a triumph for the field of public health. Its inclusion of many provisions intended to prevent illness and promote health endorses the core belief of public health as expressed by Dr. Georges Benjamin, the long-time executive director of the American Public Health Association, in a Washington Post opinion piece praising ACA for “provid[ing] care as far upstream as possible… [in order to] reduce costs by identifying problems early and then (...) managing them to reduce or eliminate the need for more costly care in the future.” In this article, I consider the conflict between ACA’s adoption of public health goals seeing population health and societal interests in protecting individuals from discrimination based on their health. The article focuses on one aspect of ACA which seeks to lower the costs to employers who provide health insurance for their employees by making it easier for them to offer their employees substantial incentives for participating in and meeting the goals of employer-sponsored Wellness Programs. (shrink)

Authority qua empowerment is the weak reading of authority in Hans Kelsen's writings. On the one hand, this reading appears to be unresponsive to the problem of authority as we know it from the tradition. On the other hand, it squares with legal positivism. Is Kelsen a legal positivist?Not without qualification. For he defends a normativity thesis along with the separation thesis, and it is at any rate arguable that the normativity thesis mandates a stronger reading of authority (...) than that modelled on empowerment. I offer, in the paper, a prima facie case on behalf of a stronger reading of authority in Kelsen. I go on to argue, however, that the textual evidence weighs heavily in favour of the weak reading. Both nomostatics and nomodynamics are pervasive points of view in the Pure Theory of Law, and both reflect species of empowerment as the endpoint of Kelsen's reconstructions. (shrink)

This paper focuses on the normative analysis—in the sense of the classic decision-theoretic formulation—of decision problems that arise in connection with forensic expert reporting. We distinguish this analytical account from other common types of decision analyses, such as descriptive approaches. While decision theory is, since several decades, an extensively discussed topic in legal literature, its use in forensic science is more recent, and with an emphasis on goals such as the analysis of the logical structure of forensic expert conclusions regarding, (...) for example, propositions of common source of evidential and known materials. Typical examples are so-called identification decisions, especially categorical conclusions according to which fingermarks come from a particular a person of interest. We will present and compare ways of stating forensic identification decisions in decision-theoretic terms and explain their underlying rationale. In particular, we will emphasize the importance of viewing this analysis as normative in the sense of providing a reflective rather than a prescriptive reference point against which people in charge of forensic identification decisions may compare their otherwise intuitive and informal reasoning, before acting. Normative decision analysis in forensic science thus provides a vector through which current practice can be articulated, scrutinized and rethought. (shrink)

In this essay, I focus on what appear to be Shapiro’s views about the normativity of law, as well as with his surprising claim that law necessarily has a moral aim. I argue that even if Shapiro offers a more compelling reply to the problem of the normativity of law than Hart offers in The Concept of Law, the moves that he makes appear to be equally available to a defender of Hart’s theory, and so in this respect, (...) the planning theory has no particular advantage over the practice theory. As for the Moral Aim Thesis, it appears to be in tension with Shapiro’s positivism. If he is right that law has a moral aim and law claims moral legitimacy, then he should embrace a richer account of the nature and normativity of law than the one that he has offered. (shrink)

The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love (...) cannot alone be grounds for the State to insist that she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role ….For years, Jehovah's Witnesses have posed a challenge to the medical profession. Bound by religious belief to refuse blood and blood products, they can frustrate physicians who, since World War II, have utilized transfusions when indicated in the course of treatment. (shrink)

The liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love (...) cannot alone be grounds for the State to insist that she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role ….For years, Jehovah's Witnesses have posed a challenge to the medical profession. Bound by religious belief to refuse blood and blood products, they can frustrate physicians who, since World War II, have utilized transfusions when indicated in the course of treatment. (shrink)

At Danish universities, the governance structure is regulated by law. This structure was radically changed in 2003, abolishing the republican rule of the senate consisting of academics, students, and staff in favour of an authoritarian system assigning all executive power to the vice-chancellor, or as we say in Denmark, the rector. To introduce the current situation at Danish universities, in the first two sections of this article, I will compare them with more well-known counterparts in other countries. This situation is (...) reflected in exemplary cases, and in the third section, I focus on the most dramatic controversy ever encountered at a Danish university, the Koldau case, which reached national newspaper headlines and broadcasting in two rounds in 2011 and 2012. In the fourth section, I will interpret the case as an educational controversy in light of two conflicting ideas of the modern university, which may be attributed to two leading Enlightenment figures, Wilhelm von Humboldt and Denis Diderot. The conclusion is that to some extent, the failure to resist the neo-liberal university reforms in Denmark and the UK, and the drama of the Koldau case, may be explained with reference to the conflicting ideologies of those involved in these controversies. (shrink)

It would be difficult to find a major figure in the history of European political thought who would not have attempted to say something about how authority emerges, or is justified and critiqued, in the world beyond the single polity. Quite frequently, that effort would have involved some idea about a legal order, or at least a set of rules or regularities applicable in that world. Thomas Hobbes was neither the first nor the last major thinker who believed that the (...) 'international' realm was characterised by the independence of states existing 'in the state and posture of gladiators', thus apparently denying that legal rules or practices or legal thinking could have much relevance therein. Yet others believed, as Immanuel Kant did, that without a constitutional vocabulary not much that was meaningful could be said about the human pursuit of freedom, and that silence about the latter would not only constitute a moral failure but an intellectual and perhaps political mistake. For a long time, the idiom of natural law claimed to offer a universally valid frame for thinking about the nature of the political, as well as providing authority for lawyers' speculations about the rules and principles governing the conduct of individuals and corporate bodies wherever they might move. The name of the relevant discipline at German universities from the late seventeenth century onwards-ius naturae et gentium, the law of nature and of nations-revealed the full scope of its ambition. That discipline may have died away (although that is a debatable proposition) but any political thinking worth its salt will today (perhaps especially in the twenty-first century) aim to say something about how authority emerges, is maintained or critiqued not only within but also outside the single state. The world of 'nations' or even 'humanity' is established as an important theme of political and legal speculation. (shrink)

Clarke proposes a conception of philosophy that provides an alternative to the reductions of materialism and the search for normative principles. Philosophy's proper role is to describe similarities and differences among differing levels of language, specifically the familiar level of discourse within an ordinary language shared by all and the specialized discourses of social institutions such as science, law, and the arts. By constructing a logical framework in which these comparisons and contrasts can be made, philosophy performs the indispensable role (...) of promoting the integration of disparate elements of our culture. (shrink)

Virtues and reasons are two of the most fruitful and important concepts in contemporary moral philosophy. Many writers have commented upon the close connection between virtues and reasons, but no one has done full justice to the complexity of this connection. It is generally recognized that the virtues not only depend upon reasons, but also sometimes provide them. The essays in this volume shed light on precisely how virtues and reasons are related to each other and what can be (...) learned by exploring this relationship. Virtue’s Reasons is divided into three sections, each of them devoted to a general issue regarding the relationship between virtues and reasons. The first section analyzes how the virtues may be related to, or linked with, normative reasons in ways that improve our understanding of what constitutes virtuous character and ethical agency. The second section explores the reasons moral agents have for cultivating the virtues and how the virtues impact moral responsiveness or development. The final section examines how reasons can be employed in understanding the nature of virtue, and how specific virtues, like modesty and practical wisdom, interact with reasons. This book will be of major interest to scholars working on virtue theory, the nature of moral character, and normative ethics. (shrink)

Norman Kretzmann's recent analysis of the natural law slogan ``lex iniusta non est lex'' (an unjust law is not a law) demonstrates the coherence of the slogan and makes a case for its practical value, but I shall argue that it also ends up showing that the slogan fails to mark any interesting conceptual or practical division between natural law and legal positivist views about the nature of law. I argue that this is a happy result. The non-est-lex slogan has (...) been used to exaggerate the extent of disagreement about the nature of law and has diverted critics of natural law theory from recognizing that the main disagreement between natural lawyers and legal positivists centres on theories of practical reason and how they affect our understanding of the relationship between law and morality. This extends the debate about the nature of law somewhat beyond the traditional boundaries of philosophy of law, but these boundaries are due in part to the diversion created by debate over the non-est-lex slogan. Recognizing that the non-est-lex slogan fails on its own to mark any interesting practical or conceptual division between natural law theories and legal positivism should therefore focus and encourage debate on matters of genuine substance between these outlooks. The disagreement, however, may turn out to be primarily metaphysical and explanatory and not normative in nature. (shrink)

Natural law ethics centres on the idea that ethical norms derive from human nature. The field has seen a remarkable revival since the millennium, with new work in Aristotelian metaphysics complementing innovative applied work in bioethics, economics and political theory. Starting with three chapters on the history of natural law ethics, this volume moves on to various twentieth-century theoretical innovations in the tradition, and then to natural law as embedded in the three Abrahamic faiths. It closes with sections on applied (...) natural law ethics and the challenges and prospects for natural law ethics in the twenty-first century. Uniquely interdisciplinary and written without technical jargon, the book will be of great interest to students and researchers in philosophy, theology, political theory and economics. They will find this the go-to resource for cutting-edge thinking in natural law ethics. (shrink)

his book develops an account of legal reasoning based on underlying narrative patterns, and compares other such approaches in legal philosophy, psychology and history. Download full ToC and Preface from http://www.legaltheory.demon.co.uk/books_lfnc.html.

We provide a suitable theoretical foundation for the notion of the quantum coherent state which describes the electrostatic field due to a static external macroscopic charge distribution introduced by the author in 1998 and use it to rederive the formulae obtained in 1998 for the inner product of a pair of such states. (We also correct an incorrect factor of 4π\documentclass[12pt]{minimal} \usepackage{amsmath} \usepackage{wasysym} \usepackage{amsfonts} \usepackage{amssymb} \usepackage{amsbsy} \usepackage{mathrsfs} \usepackage{upgreek} \setlength{\oddsidemargin}{-69pt} \begin{document}$$4\pi$$\end{document} in some of those formulae.) Contrary to what one might expect, (...) this inner product is usually non-zero whenever the total charges of the two charge distributions are equal, even if the charge distributions themselves are different. We actually display two different frameworks that lead to the same inner-product formulae, in the second of which Gauss’s law only holds in expectation value. We propose an experiment capable of ruling out the latter framework. We then address the problem of finding a product picture for QED—i.e. a reformulation in which it has a total Hamiltonian, arising as a sum of a free electromagnetic Hamiltonian, a free charged-matter Hamiltonian and an interaction term, acting on a Hilbert space which is a subspace (the physical subspace) of the full tensor product of a charged-matter Hilbert space and an electromagnetic-field Hilbert space. (The traditional Coulomb gauge formulation of QED isn’t a product picture in this sense because, in it, the longitudinal part of the electric field is a function of the charged matter operators.) Motivated by the first framework for our coherent-state construction, we find such a product picture and exhibit its equivalence with Coulomb gauge QED both for a charged Dirac field and also for a system of non-relativistic charged balls. For each of these systems, in all states in the physical subspace (including the vacuum in the case of the Dirac field) the charged matter is entangled with longitudinal photons and Gauss’s law holds as an operator equation; albeit the electric field operator (and therefore also the full Hamiltonian) while self-adjoint on the physical subspace, fails to be self-adjoint on the full tensor-product Hilbert space. The inner products of our electrostatic coherent states and the product picture for QED are relevant as analogues to quantities that play a rôle in the author’s matter-gravity entanglement hypothesis. Also, the product picture provides a temporal gauge quantization of QED which appears to be free from the difficulties which plagued previous approaches to temporal-gauge quantization. (shrink)

Republicans understand freedom as the guaranteed protection against any arbitrary use of coercive power. This freedom is exercised within a political community, and the concept of arbitrariness is defined with reference to the actual ideas of its citizens about what is in their shared interests. According to many current defenders of the republican model, this form of freedom is understood in strictly negative terms representing an absence of domination. I argue that this assumption is misguided. First, it is internally inconsistent. (...) The central republican focal point of arbitrariness is a necessarily socially-constructed ideal that only exists as the creation of the citizens themselves. Secondly, republican freedom operates in two distinct realms or spheres. There is freedom under a law that is required to uphold the collective good as reflected in society’s norms, and there is freedom within that very system of norms. The threats to freedom from within each sphere are different and must be addressed accordingly. The negative approach, however, conflates the two and emphasises only the dangers faced under the law. This exposes citizens – especially those from marginalised social groups – to domination in the second realm from oppressive social norms. Only by clearly recognising the nature of both kinds of threats can a comprehensive republican freedom be formulated. (shrink)

Considering citizenship education specifically in relation to deliberative politics, first, I focus on the role that Habermas in Between Facts and Norms allots to opinion and will formation as a kind of Bildung, emphasizing the collective aspect of discursive formation in the state as well as in civil society. Secondly, even though I have stressed the crucial role of deliberation in the formation to virtue, I recognize that Habermas attempts to combine the republican call for civic virtue with the liberal (...) claims to have rights. Thirdly, I emphasize that also for Habermas Bildung in some sense constitutes the truth of human being, although it is not specified in detail. Fourthly, I argue that democratic citizenship education would benefit from a substantial notion of Bildung, but that Habermas does not support such an argument. Recognizing that Habermas’s idea of collective formation is restricted to providing justice in terms of politics and law, and bearing in mind the alienation in fact produced within the multitudes of modern capitalist and militarist society, I conclude by expressing the fear that Habermas’s account of democratic formation will not be sufficiently attractive to contemporary democratic citizens and thus unable to function as a normative ideal. (shrink)

'The many virtues of Constitutional Justice are evident throughout the piece. The author should be congratulated for even attempting to construct a normative theory of liberal constitutionalism... Constitutional Justice is a work that faithfully carries on the grand tradition of normative legal thought. No small task, and Allan succeeds admirably.' -Law and Politics Book ReviewThis book offers a systematic interpretation of the ideal of the rule of law, arguing that the principles it identifies provide the foundations of a liberal democratic (...) legal order. It explains the essential connections between a range of matters fundamental to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The principles of public law are interpreted in the light of liberal legal and political philosophy.Readership: Scholars and students of law, philosophy, and politics. (shrink)

Hospices consider themselves places that practise a holistic form of terminal care, encompassing physical and psychological symptoms, and also the social and spiritual support for a dying patient. So far, the underlying ethical principles have been treated predominantly in terms of a normative theoretical discussion. The interview study discussed in this paper is a qualitative investigation into general and hospice-related conceptions of morality among full-time and voluntary workers in German inpatient hospices. It examines moral conflicts and efforts leading to (...) their solution. The main ideas identified include moral neutrality towards the patients and their requests, the capability of acceptance, the idea of self-restraint with respect to the dying patient and the principle of respect for the natural course of dying. Essential triggers for moral conflicts were the inadequate education of patients, problems of acceptance in view of incurable disease, and disagreements between members of patients' families. The interviewees expressed their scepticism towards formal institutions of ethical counselling. The study has shown a type of virtue ethics that forms an integral part of the overall concept of hospice care, which cannot be treated separately from a holistic idea of care at the end of life. (shrink)

Informed consent is one of the perennial problems of medical ethics. It raises interesting philosophical questions, but also questions about regulation and implementation. The paper by Fovargue and Miola in this issue look at the recent guidance to doctors on informed consent from the UK's General Medical Council. They reach the rather depressing conclusion that whereas the law in the UK has moved forward in the recognition of patient autonomy, the GMC has moved backwards in some areas since the previous (...) guidance was issued in 1998. A paper by Potts et al also look at consent, but in this case consent to organ donation. They criticise a paper by Ben Saunders published in the JME in 2010. Saunders combined David Estlund's concept of ‘normative consent’ with Peter Singer's ‘greater moral evil’ principle and argued on this basis that actual consent to organ donation after death is not necessary, only absence of a clear refusal. Potts and …. (shrink)

The spiral form of the Periodic Law is proposed as its fundamental graphic representation. This idea is based on the fact that the spiral is the most appropriate form in description transitions from simple to complicated. The spiral is easily obtained from the linear succession of the elements when they are ranged by growing nuclear charge. The spiral can be simply transformed into many other graphic representations, including tables. This paper suggests the conception of the autonomy of blocks. This autonomy (...) is clearly seen in the variation of the outer electronic shells, in the width and the height of the blocks, as well as the number and properties of elements included therein. The regularities in the changes of element properties are pronounced in certain blocks but actually absent in others. The blocks can be permuted to obtain full-fledged versions of Periodic Table. The new stage of the verification of the blocks autonomy is the use of the total number of the differentiating electrons as an independent variable in describing the properties of the elements and their compounds. Consideration of individual blocks made it possible to deduce the periodic equations valid for all the elements within each block. Formulation of the Periodic Law is advanced: while describing characteristic determining the properties of the elements, the nuclear charge is replaced by the total number of differentiating electrons. Two modifications of the conventional Periodic Table are obtained by minimal changes. The first one shows the secondary and the additional periodicites. Another table shows the total number of differentiating electrons for each element. (shrink)

Suppose COVID-19 is the runaway tram in the famous moral thought experiment, known as the “Bystander at the Switch.” Consider the two differentiated responses of governments around the world to this new threat, namely the option of quarantine/lockdown and herd immunity. Can we contrast the hypothetical with the real scenario? What do the institutional decisions and strategies for dealing with the virus, in the beginning of 2020, signify in a normative moral framework? This paper investigates these possibilities in order to (...) highlight the similarities and, more importantly, the differences that exist between utilitarianism and Kantian ethics. Analysis shows that the hypothetical scenario can never be fully compared to the complex multifactorial nature of the real world. But if a comparison is attempted, the most obvious difference between the two governmental strategies is the concept of duty within the Kantian perspective. Ultimately, it is a matter of comparing freedom and life. Attributing a moral “priority ticket” to one or the other can be analysed through interpersonal aggregation. (shrink)

This book throws new light on the way in which the Internet impacts on democracy. Based on Jürgen Habermas' discourse-theoretical reconstruction of democracy, it examines one of the world's largest, most diverse but also most unequal democracies, Brazil, in terms of the broad social and legal effects the internet has had. Focusing on the Brazilian constitutional evolution, the book examines how the Internet might impact on the legitimacy of a democratic order and if, and how, it might yield opportunities for (...) democratic empowerment. The book also assesses the ways in which law, as an institution and a system, reacts to the changes and challenges brought about by the Internet: the ways in which law may retain its strength as an integrative force, avoiding a 'virtual' legitimacy crisis. (shrink)

In the creation myth of the Timaeus Plato describes God as wishing that all things should be good so far as is possible. Wherefore, finding the whole visible sphere of the world not at rest, but moving in an irregular fashion, out of disorder He brought order, thinking that this was in every way an improvement. To achieve His end He placed intelligence in soul and soul in body, reflecting that nothing unintelligent could ever be better than something intelligent . (...) From this account of creation it would seem that God confronted a chaotic world whose disorderly motions existed in full independence of the principle of soul. Yet, in his doctrinal pronouncements in the Laws and the Pbaedrus on the origin of motion, Plato declares soul to be elder born than bodies and the prime source of all their changes and transformations. (shrink)

The reasonable human nature appears in the Enlightenment’s philosophy as a reduction of the human being and its manifestations to a complex of natural impulses when all former norms of perception, reflections, inclinations, actions and the moral principles, which lie in their basis, are canceled in the free human self-experimenting. The monarchy idea depreciates when its citizens turn in the public good’s proponents on the basis of a blind republican consent about the egoism’s limitation (Robespierre) and a prosopo-peia of freedom (...) that gives to a nation the self-government illusion. The reconsideration of the revolutionary moment as a self-affirmation of romantic spirit is connected for Tolstoy with the “world will” novel poetics opening evolutionary moment in the affective and reflexive dynamics of the hero’s consciousness, the limiting witness of the narrator and the author’s horizon of progressive movement to the historical process’s purpose that creates the belief in the need of coexistence with other participating consciousnesses. The revolutionary and evolutionary reflection of Tolstoy is related to the monoteis-tic prosopopoeia of divine kenosis. From an artistic representation of signifying articulations of the evolutionary world the teacher’s reflection of Tolstoy is born. For Tolstoy revolution is the moment of the senseless violence aiming to eliminate the common evil of the world. The conceptual basis of literary culture as an art and ideological formatting of reactive consciousnesses for Tolstoy is an infinite aspiration to the human self-limitation. (shrink)

The Qumran community of Essenes belongs to the religious sects of Palestine II. BC - 1st century BC not. It arose in the line of Judaism and was closely connected with the Jewish religion. This is evidenced by the spiritual library of the community and the strict observance of the law of Moses by its members. In order to get closer to the understanding of nature and the essence of spirituality, one should not only take into account the complete legal (...) features of its similarity to official or normative Judaism, but to note the differences that existed between them. These differences were determined in the social and religious isolation of the Qumran community from the Jewish community and were reflected in a desert, similar to the monastic way of life, in rejection of participation in the temple cult, a specific ritual of washing, different from the established burial ceremony, in the use of a special solar calendar. All this testifies at the same time to the specificity of the ideological views of the members of the Qumran Brotherhood. It is difficult to say whether the theological system of the Qur'an outlook has survived to date, since its essential elements were transmitted orally and not recorded. (shrink)

The argument is that Bildung has occupied Habermas from the earliest writings. In these writings he criticizes the idea of being educated as an expression of innate abilities and emphasizes instead the significance of the social conditions of the upbringing. This is the subject of the first section. The second section provides a presentation of the ideology-critical analysis of Bildung found in Habermas’s doctoral thesis on The Structural Transformation of the Public Sphere. The basic critique is that the ideal of (...) individual Bildung is too tightly connected to economic and political dominance, but still the ideal contains some truth. The third section maps his relatively sparse comments regarding Bildung in the subsequent decades. Significant here is Knowledge and Human Interest, where he works himself out of the philosophy of consciousness framework towards the Theory of communicative action. This becomes the communicative approach, which becomes the framework of Habermas’ discussion of Bildung, both in relation to philosophical ethics – discourse ethics – and in more specific discussions, such as what is the role of the university in modern society. Finally just a few words on the political philosophy and the philosophy of law, which Habermas presents in Between Facts and Norms, where he once again allows Bildung have a positive normative significance, but now in a collective communicative perspective. (shrink)

Tort law is an important tool in enforcing a minimal level of good behavior. But what is appropriate for law is not necessarily appropriate for ethics or for norms of professional practice.

In Barrett v. Danbury Hospital ), the Supreme Court of Connecticut held that the fear of contracting or transmitting HIV or any other blood-borne pathogens is not a compensable injury and does not give rise to a negligence or a medical malpractice claim. The court's decision affirmed the holding of a Connecticut trial court.In June 1990, Allen Barrett was admitted to Danbury Hospital complaining of abdominal pain. He had a history of gall bladder trouble. Barrett was placed on a stretcher (...) in the emergency room. The attending physician diagnosed Barrett's pain as a gallstone condition. During the course of his examination, the doctor noticed that Barrett was sitting in blood. The physician subsequently performed a rectal examination of Barrett to locate the source of the blood. The physician determined that the patient was not bleeding, but that the blood was in fact coming from two slits in the vinyl pad that covered the stretcher on which Barrett sat. (shrink)

In a series of important papers published roughly twenty years ago, Professor Robert Cooter developed a comprehensive economic theory of moral norms. He explained the value of those norms, described the process by which norms are adopted, and offered a set of predictions regarding the circumstances under which an individual will choose to adopt a particular moral norm. This brief Article applies behavioral law and economics and hedonic psychology to expand upon Professor Cooter’s path-breaking theory. In particular, understanding welfare in (...) hedonic terms — rather than preference-satisfaction terms — suggests a multitude of further situations in which individuals will justifiably seek to internalize moral norms. The hedonic approach to welfare then further suggests an enhanced role for the government to play in encouraging the adoption of welfare-enhancing norms. Cooter’s theory, combined with modern understandings of welfare and human behavior, thus offers powerful predictive and prescriptive possibilities. (shrink)

What does the law demand when it requires citizens to conform to standards of reasonableness? I propose and defend the view that the law should demand that citizens conform their behavior to some actual conduct in society. I contrast this idea against what might be called the ``empty vessel'' view of reasonableness, where the standard is understood to function like an empty vessel in the law, allowing courts to use various norms and moral judgments to determine what seems reasonable in (...) the circumstances. The empty vessel account is the more common approach for understanding reasonableness, but it leaves obscure whether and how assessments about appropriate conduct connect with facts about citizens' actual conduct. I argue for a ``binocular'' view that focuses our attention on actual practices and thereby establishes how these standards provide a stable guide to conduct and support the rule of law. (shrink)

Modern moral and political philosophy is in debt with natural law theory, both in its ancient and mediaeval elaborations. While the very notion of a natural law has proved highly controversial among 20th Century scholars, the last decades have witnessed a renewed interest in it. Indeed, the threats and challenges as result of multiculturalism, plural societies and global changes have generated a renewed attention to natural law theory. Clearly, it offers solid basis as possible framework to a better understanding of (...) human goods without contradictions and partial bias. The purpose of the present volume is to provide an overview of the history of this concept (Cicero, St. Paul, Aquinas, Melanchthon, Montaigne, Descartes, Leibniz, Hume, Burke, Kant, MacIntyre, etc.) as well as a deep understanding of ongoing research, both in Europe and in America. Furthermore, the specificity of these studies will be of particular value to philosophers, law-philosophers, historians, anthropologists, sociologists and theologians, and those concerned on such issues as the relation between law and moral norm, law and practical reason, and the presence of the idea of natural law in several prominent thinkers. It includes a selected bibliography on natural law. The book also provides an excellent introduction to several of the major topics in natural law theory making it useful both as a reference text and as a sourcebook for academics alike. Natural law is a rich, complex, and highly disputed term. Since its first appearances in the history of Western civilization, it has been used both to point to God as the source of the moral order and to assert that there is an objective order of justice in nature that men and their laws ought to respect. In modern times, natural law theory gave birth to what we usually call "human rights." Unlike the meaning of the term, the importance of an ongoing debate on natural law and on the theories related to it is undisputable. This is why I welcome today this new collection of essays edited by Alejandro Nèstor Garcìa Martìnez, Mario Å ilar and Josè M. Torralba. Natural Law: Historical, Systematic and Juridical Approaches includes a wide variety of studies, covering key authors and issues in natural law theory. Younger students will appreciate the clarity of the chapters, and more trained readers the detailed and accurate bibliographical references that each of them offers. The editors's choice to go from a historical approach to contemporary theories, and then to theoretical and more practical issues is also commendable. Students in philosophy and in legal theory will greatly benefit from this book. Fulvio Di Blasi, author of God and the Natural Law: A Rereading of Thomas Aquinas. (shrink)

Mark Balaguer argues for full blooded platonism (FBP), and argues that FBP alone can solve Benacerraf's familiar epistemic challenge. I note that if FBP really can solve Benacerraf's epistemic challenge, then FBP is not alone in its capacity so to solve; RFBP—really full blooded platonism—can do the trick just as well, where RFBP differs from FBP by allowing entities from inconsistent mathematics. I also argue briefly that there is positive reason for endorsing RFBP.

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative (...) outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. If participants lack competence or are prone to biases, a correct deliberative outcome requires limiting participation. The central question for public argumentation, therefore, is how to strike a balance between both ideals. Rather than advocating a preferred normative framework, our main purpose is to illustrate the complexity of this theme. (shrink)

The purpose of the present study was to test the hypothesis that goal orientation is associated with divergent forms of emotional reactivity under frustration. Goal orientations were assessed using bifurcations of performance goals described earlier. Physiological stress levels were measured via a blood volume pulse analysis after individuals were subjected to a computerized Stroop task using a malfunctioning mouse to induce enhanced frustration. The results indicated that performance-avoidance goals were associated with the highest levels of emotional reactivity, with normative outcome (...) goals being significantly more detrimental than ability goals. We concluded that the motivation to avoid failure or to outperform others is the most detrimental determinant of stress and needs to be avoided by all means. Instead, it is suggested that educators emphasize performance using personal best outcomes or by valuing engagement, deep processing and task completion. (shrink)