In a recent article, Gauthier rejects orthodox rational choice contractarianism in favor of a revisionist approach to the social contract that, according to him, justifies his principle of maximin proportionate gain as a principle of distributive justice. I agree with Gauthier that his principle of maximin proportionate gain cannot be justified by orthodox rational choice contractarianism. I argue, however, that orthodox rational choice contractarianism, before and after Gauthier, is still a viable (...) approach to the social contract, although the scope of this approach is limited. Orthodox rational choice contractarianism can be applied fruitfully to moral philosophy only in situations of deep moral pluralism in which moral reasoning is reduced to instrumental reasoning, because the members of society do not share, as assumed by traditional moral theories, a consensus on moral ideals as traditionally conceived as a starting point for the derivation of moral rules but only an overarching end that they aim to reach. If orthodox rational choice contractarianism is applied adequately, then it offers a viable approach to the social contract that, in contrast to Gauthier’s theory, justifies a rival principle for distributive conflicts that is valid for deeply morally pluralistic societies. (shrink)

In this volume Professor Sciacca publishes lectures which he gave at Louvain in 1954 in the series ‘Chaire Cardinal Mercier’. A brief introduction sets the scene: in 384 Augustine is a believing, if not a professing, Catholic but he is still burdened with philosophical perplexities left him by Manicheism. At this point Neoplatonic influence is felt; pp. 3-19 analyse its effect. Augustine christianises the Plotinian Intellect identifying it with the Word; but this doctrine does not present the Word made flesh. (...) Augustine had still to learn the humble mystery of the Incarnation; he was in danger of proudly thinking of Christ philosophically rather than theologically, and of becoming a convert to philosophy instead of to a religion. But St. Paul’s words convinced him of the humble reality of the Incarnation. Thus Neoplatonism had to be ignored and played no part in Augustine’s intellectual conversion to the theological truths of Christianity. The Platonists’ contribution was to remove his philosophical difficulties: he can now conceive God as a spirit ; evil, now regarded as something negative, does not need a principle to create it. Plotinus serves as a starting-point, but the Christian doctrine of creation gives his teaching an entirely different direction; Augustine’s doctrine is a Christianized Neoplatonism and not Neoplatonised Christianity. (shrink)

The book applies the principle of proportionality to a number of conventional wisdoms in the social sciences, such as in dubio pro reo and the assumption that a crime is always a crime; that you must go to war if instructed to do so. Individuals and states are not obliged to come to the aid of stricken individuals and states. The book is organised in seven chapters, each dealing with a self-standing theme related to proportionality.

The principle of proportionality has gained widespread adherence in the modern retributively-dominated era of penal theory. It has often been held that, if one subscribes to a retributivist theory, then one is also committed to proportionality in punishment. In the present article, this assumption is challenged. It is shown that the inference from the fact that one offender has committed a more serious crime than another offender, to the conclusion that this offender should be punished more severely than the (...) other, presupposes the satisfaction of two conditions: The Necessity Requirement and the Sufficiency Requirement. It is argued that modern expressionist accounts of retributivism fail to satisfy these requirements. Moreover, it is suggested that the satisfaction of these requirements constitutes a challenge for other retributivist theories. In so far as this is the case, the inference from retributivism to proportionality will be blocked. (shrink)

The principle of proportionality is used in many different contexts. Some of these uses and contexts are first briefly indicated. This paper focusses on the use of this principle as a moral principle. I argue that under certain conditions the principle of proportionality is helpful as a guide in decision-making. But it needs to be clarified and to be used with some flexibility as a context-dependent principle. Several interpretations of the principle are distinguished, using (...) three conditions as a starting point: importance of objective, relevance of means, and most favourable option. The principle is then tested against an example, which suggests that a fourth condition, focusing on non-excessiveness, needs to be added. I will distinguish between three main interpretations of the principle, some primarily with uses in research ethics, others with uses in other areas of bioethics, for instance in comparisons of therapeutic means and ends. The relations between the principle of proportionality and the precautionary principle are explored in the following section. It is concluded that the principles are different and may even clash. In the next section the principle of proportionality is applied to some medical examples drawn from research ethics and bioethics. In concluding, the status of the principle of proportionality as a moral principle is discussed. What has been achieved so far and what remains to be done is finally summarized. (shrink)

When individual rights, especially constitutional rights, compete with other rights or with a public good, judges and politicians involved in the legislative process or jurisdictional process are expected to balance their decision in such a way that the gain from achieving the goal mitigates the costs of the resulting loss for the parties. Jurists speak of the doctrine of proportionality in connection with this process of balancing. In the proportionality calculus, judges have to evaluate whether the impact on individual (...) rights outweighs the public purpose pursued through a state’s legal activity. I will argue that the procedure of proportionality is similar to the procedure of reaching a compromise. More precisely, I will defend that compromise is a special case of the principle of proportionality, for it applies when claims cannot be balanced or in the absence of an overarching principle on which all the parties agree. With this, I aim to show the connection between the principle of proportionality and compromises without conflating these two concepts, and to offer new perspectives on the discussion of proportionality as it is used in the legal context. (shrink)

The debate concerning the moral permissibility of using human embryos in human embryonic stem cell (hESC) research has long centred on the question of the embryo's supposed right to life. However, in focussing only on this question, many opponents to hESC research have escaped rigorous scrutiny by making vague and unfounded appeals to the concept of moral respect in order to justify their opposition to certain hESC practices. In this paper, I offer a critical analysis of the concept of moral (...) respect, and its use to support the intuitively appealing principle of proportionality in hESC research. I argue that if proponents of this principle are to justify its adoption by appealing to the concept of moral respect, they must explain two things concerning the nature of the moral respect owed to embryos. First, they must explain which particular aspect of the embryo is morally relevant, and why. Second, they must explain why some uses of embryos in research fail to acknowledge what is morally relevant about the embryo, and thereby involve a violation of the moral respect that they are due. I shall show that providing such explanations may be more difficult than it first appears. (shrink)

Mehlman and Li offer a framework for approaching the bioethical issues raised by the military use of genomics that is compellingly grounded in both the contemporary civilian and military ethics of medical research, arguing that military commanders must be bound by the two principles of paternal- ism and proportionality. I agree fully. But I argue here that this is a much higher bar than we may fully realize. Just as the principle of proportionality relies upon a thorough assessment of (...) harms caused and military advantage gained, the use of genomic research, on Mehlman and Li’s view, will require an accurate understanding of the connection between genotypes and phenotypes – accurate enough to ameliorate the risk undertaken by our armed forces in being subject to such research. Recent conceptual work in evolutionary theory and the philosophy of biology, however, renders it doubtful that such knowledge is forthcoming. The complexity of the relationship between genotypic factors and realized traits (the so-called ‘G→P map’) makes the estimation of potential military advantage, as well as potential harm to our troops, incredibly challenging. Such fundamental conceptual challenges call into question our ability to ever satisfactorily satisfy the demands of a sufficiently rigorous ethical standard. (shrink)

Philosophy and Phenomenological Research, Volume 104, Issue 3, Page 784-791, May 2022.

Locke’s principle of proportionality – among his most important contributions to philosophy – states that we ought to apportion our assent to a given proposition in accord with the probability of that proposition on an adequate body of evidence. I argue that treatments of Locke’s principle fail to avoid interpreting it as a fundamentally doxastic prescription – a precept concerning how we ought to voluntarily control our assent. These interpretations are problematic on account of their implications concerning the (...) degree of control that agents have over the doxastic process, and on account of how they cohere with numerous texts in the Essay. I suggest that the principle, instead, commends that we engage in certain activities, or practices, that tend to produce true beliefs. (shrink)

The principle of proportionality is seen as the highest peak of structural, logical thinking that enables balancing between constitutional principles and their interferences. So far, Alexy's weight formula has been the most advanced approach in structured balancing of proportionality stricto sensu, while this paper shows it as still too subjective. Despite judicial tests—or different, manifestly inappropriate reasonableness tests—proportionality stricto sensu hides some form of the jumping-to-conclusions bias, because the inference is made through a subjective lens. The paper presents structured (...) legal balancing (and hence reasoning) based on Bayes’ theorem. This paper, based on the connection between probability and hypothetical legal norms, transfers the four-part structure of proportionality into the relevant four-part structure of the Bayes tree. This transfer shows the first as flawed due to its failing to consider means that can have the same effects as the considered ones. Only by inclusion of the latter can the total probability of a considered case be established. Numerical proportionality à la Bayes can be further improved through the use of public-value weights that are obtained from surveys or online communities of people giving weights in the real time (collective wisdom). The Bayesian approach can also be used in adjudication as a control in assessing judicial standards in use. (shrink)

Deciding the conflict between various rights and interests, especially in medical ethics where health and lives are in question, has significant challenges, and to obtain appropriate outcomes, it is necessary to properly apply the principles of non-discrimination and proportionality. Using the example of mandatory vaccination policies, we show that this task becomes even more difficult when these principles lead us to counterintuitive and paradoxical results. Although the general purpose of these principles is to ensure that decisions and policies seek the (...) highest and broadest possible enjoyment of rights for all (ie, the least restrictive solution), they achieve the complete opposite when applied to mandatory vaccination policies. To highlight and explain these paradoxical results, we present a typology of fifteen hypothetical mandatory vaccination policies containing various degrees of restriction and apply well-established non-discrimination and proportionality tests from constitutional law to each. We argue that mandatory vaccination policies exhibit two characteristics, namely the non-linear relationship between their general purposes and specific goals and the involvement of life and health, suggesting that more restrictive policies should prevail even though less restrictive policies might fail these tests. Using clearly structured and rigorous methodology from constitutional law, the proposed approach delivers a fresh view on the core ethical principles of non-discrimination and proportionality and a potentially useful tool in helping resolve also other challenges encountered in medical ethics beyond mandatory vaccination policies. (shrink)

The ethical Principle of Proportionality requires combatants not to cause collateral harm excessive in comparison to the anticipated military advantage of an attack. This principle is considered a major (and perhaps insurmountable) obstacle to ethical use of autonomous weapon systems (AWS). This article reviews three possible solutions to the problem of achieving Proportionality compliance in AWS. In doing so, I describe and discuss the three components Proportionality judgments, namely collateral damage estimation, assessment of anticipated military advantage, and judgment (...) of “excessiveness”. Some possible approaches to Proportionality compliance are then presented, such as restricting AWS operations to environments lacking civilian presence, using AWS in targeted strikes in which proportionality judgments are pre-made by human commanders, and a ‘price tag’ approach of pre-assigning acceptable collateral damage values to military hardware in conventional attritional warfare. The article argues that application of these three compliance methods would result in AWS’ achieving acceptable Proportionality compliance levels in many combat environments and scenarios, allowing AWS to perform most key tasks in conventional warfare. (shrink)

Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a “thin” and a “thick” approach is a helpful analytical (...) tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of “targeted killings” is used to exemplify the drawbacks and advantages of both approaches. (shrink)

John Rawls, in A Theory of Justice, sometimes asserts each of the two premises of the following argument, and also the conclusion: (1) The parties in the original position would adopt the maximin rule. (2) The maximin rule, when applied to the task pof the parties in the original position, enjoins the choice of Rawls's two principles of justice in preference to the lother listed alternative. (3) Therefore the parties would choose Rawls's two principles. In this paper I (...) argue against premise (2). I distinguish three mutually incompatible interpretations of the task of the parties. Each is consistent with much of what says but none of them is consistent with everything he says. I argue that on none of the interpretations is there good reason to suppose that premise (2) is true. (shrink)

The lex talionis of the Old Testament has been widely perceived—understandably, but mistakenly—as a barbaric law of retribution in kind. It is better understood as a seminal expression of restraint and proportionality as moral principles of punishment. This has been recognized from the earliest times. Over the intervening centuries, the lex talionis has lost neither its moral significance nor its penal relevance. This is reflected in H.L.A. Hart's synthesis of modern retributivist and utilitarian theories of punishment and, again, in contemporary (...) Canadian law through the recognition of proportionality as the fundamental principle of sentencing under the Criminal Code. The tension between this fundamental principle and Canada's increasing resort to mandatory minimum sentences of imprisonment is examined briefly in this light. (shrink)

This essay argues that the best starting point for discussions of the Principle of Discrimination (PD) is its most basic formulation: In wartime, certain enemy subjects should receive better treatment than others. Other formulations of the PD ? in particular, those centered on the concept of noncombatant immunity ? have sought to identify a single criterion that can be used as the basis for sorting enemy subjects into two (and only two) classes. However, a historical and legal analysis of (...) the principle indicates that three distinct criteria ? the conduct of individuals, their status, and their guilt or innocence ? have all been seen as relevant for determining the appropriate treatment of the enemy. In this essay, I formulate an expanded version of the PD, which calls for the proportionate treatment of enemy subjects based on evaluations of all three of these criteria. (shrink)

In this article, it is argued that the constitutive principles of Just War Theory and the jus ad bellum/jus in bello duality do not transfer all that well to national security intelligence activity...

本书内容包括:比例原则之界定,比例原则的回溯与前瞻,比例原则的理论基础,比例原则的功能与局限,比例原则于我国公法中适用的若干探讨.

_Purpose._ The main purpose of this research is to comprehend the philosophical principles in the spread and legitimation of the Self-made-man idea in the worldview transformations of the 17th century. _Theoretical basis._ Historical and comparative methods became fundamental ones for the research. The research is based on the creative heritage of R. Descartes, T. Hobbes, J. Locke, as well as the works of modern researchers. _Originality._ The analysis shows that the Self-made-man idea, which originated in the ancient world and gradually (...) spreads in the Christian Middle Ages, gained a powerful impetus in the philosophical and moral-legal metamorphoses of the 17th century. These metamorphoses theoretically substantiated and radically accelerated the transition from mystical to rational, from theocentric to the anthropocentric worldview, and, as a result, to the recognition of the intellectual autonomy of the individuals and the freedom of their own will, the emergence of the construct of natural human rights, the requirements of religious tolerance and freedom of conscience, ultimately, to the principle of reliance on one’s own strength and the individual’s personal responsibility for one’s own destiny. Exactly these ideas in interaction with the ideas of Puritanism became the theoretical basis for the formation of B. Franklin’s views and the corresponding cultural code. _Conclusions._ The philosophy of the 17th century, having laid the principles of a new – subject-centric – metaphysics, as well as the philosophical and legal foundations of liberal ideology, provided philosophical and moral-legal legitimation to the sporadic attempts of man to break out of the triple circle of fatalism, paternalism, and conformity to a rationally founded and the ever-growing orientation of the individual towards active self-determination and self-realization, self-reliance and personal responsibility for their own destiny as key principles of the Self-made-man concept. (shrink)

In Bayesian epistemology, the problem of the priors is this: How should we set our credences (or degrees of belief) in the absence of evidence? That is, how should we set our prior or initial credences, the credences with which we begin our credal life? David Lewis liked to call an agent at the beginning of her credal journey a superbaby. The problem of the priors asks for the norms that govern these superbabies. -/- The Principle of Indifference gives (...) a very restrictive answer. It demands that such an agent divide her credences equally over all possibilities. That is, according to the Principle of Indifference, only one initial credence function is permissible, namely, the uniform distribution. In this paper, we offer a novel argument for the Principle of Indifference. I call it the Argument from Accuracy. (shrink)

The principle of Summation, which is a technically sharpened version of the familiar claim that a whole is a sum of its parts, is presented by Peter van Inwagen as a trivial truth. I argue to the contrary, that it is incompatible with the natural assumption that a whole may gain or lose parts non-instantaneously. For, as I show, the latter assumption implies that something can be determinately a whole without being determinately a sum of parts, and this, (...) in turn, indicates the falsity of Summation. I point out that the tension between Summation and the possibility of non-instantaneous gain or loss of parts compels us to rethink the relations between the concepts of whole and sum, and may have far reaching consequences for the mereology of physical objects. (shrink)

© 2016 Informa UK Limited, trading as Taylor & Francis Group. Within the umbrella of equal recognition, several principles of linguistic justice can be distinguished. A first, the per-capita principle, mandates prorating language recognition based on a per-capita distribution. A second, the equal-services principle, prescribes upholding the official languages as the languages in which the state speaks and in which public services are provided, irrespective of changing numbers of speakers. Alan Patten defends the prorated per-capita principle. I (...) argue for the equal-services principle, which practically will often amount to a form of linguistic maximin: the more vulnerable the language, the more numerous the resources. (shrink)

Sometimes we receive evidence in a form that standard conditioning (or Jeffrey conditioning) cannot accommodate. The principle of maximum entropy (MAXENT) provides a unique solution for the posterior probability distribution based on the intuition that the information gain consistent with assumptions and evidence should be minimal. Opponents of objective methods to determine these probabilities prominently cite van Fraassen’s Judy Benjamin case to undermine the generality of maxent. This article shows that an intuitive approach to Judy Benjamin’s case supports (...) maxent. This is surprising because based on independence assumptions the anticipated result is that it would support the opponents. It also demonstrates that opponents improperly apply independence assumptions to the problem. (shrink)

The key assumption behind evolutionary epistemology is that animals are active learners or ‘knowers’. In the present study, I updated the concept of natural learning, developed by Henry Plotkin and John Odling-Smee, by expanding it from the animal-only territory to the biosphere-as-a-whole territory. In the new interpretation of natural learning the concept of biological information, guided by Peter Corning’s concept of “control information”, becomes the ‘glue’ holding the organism–environment interactions together. The control information guides biological systems, from bacteria to ecosystems, (...) in the process of natural learning executed by the universal algorithm. This algorithm, summarized by the acronym IGPT (information-gain-process-translate) incorporates natural cognitive methods including sensing/perception, memory, communication, and decision-making. Finally, the biosphere becomes the distributed network of communicative interactions between biological systems termed the interactome. The concept of interactome is based on Gregory Bateson’s natural epistemology known as the “ecology of mind”. Mimicking Bateson’s approach, the interactome may also be designated “physiology of mind”—the principle behind regulating the biosphere homeostasis. (shrink)

This is a collection of four papers about the All-Affected Principle (AAP): the view that every person whose morally weighty interests are affected by a democratic decision has the right to participate in that decision. -/- The first paper (“Narrow Possibilism about Democratic Enfranchisement”) examines how we should distribute democratic participation rights: a plausible version of AAP must avoid treating unlike cases alike, which would be procedurally unfair. The solution is to distribute participation rights proportionately to the risk that (...) a person’s interests will be affected. AAP thus implies an account of political equality that requires adherence to the ‘one person—one vote’ model only if interests are indeed equally affected. -/- The second paper (“Economic Participation Rights and the AAP”) argues that AAP supporters have paid insufficient attention to economic participation rights. The exercise of such rights raises unique worries about democratic accountability, which is why their exercise is constrained by a number of duties. -/- The third paper (“What AAP Is, and How (Not) to Fight It”) explores how AAP fares in light of possible objections from desirability and feasibility. Unlike crude versions of AAP, a plausibly restricted version of AAP cannot be dismissed as easily as many AAP sceptics may have thought. My reflections here are useful for AAP supporters and sceptics alike: this paper helps clarify what kind of objection can cast serious doubt on AAP. -/- The fourth paper (“Criminal Disenfranchisement, Political Wrongdoing, and Affected Interests”) asks: is AAP compatible with criminal disenfranchisement? AAP, when endorsed in combination with a plausible theory of punishment, is compatible with disenfranchising a narrow set of criminal wrongdoers only: those guilty of ‘political wrongdoing’, which is wrong primarily because it undermines democratic procedures and institutions for private gain. The upshot is that current blanket policies of criminal disenfranchisement are incompatible with AAP. (shrink)

In his celebrated work, A Theory of Justice (1971), John Rawls argues that, from behind the veil of ignorance, parties in the original position will employ the maximin decision rule to reason to his two principles of justice. In this journal, Olatunji Oyeshile offers a brief and concise outline of some of the historical criticisms of that argument. Oyeshile offers two important criticisms of Rawls' argument. Both, however, are somewhat misplaced, as I shall show. First, he claims that decision (...) theory offers parties in the original position other decision procedures. In fact, none of the alternatives are suitable, given the situation. And second, parties in the original position would first guarantee some minimum of libertarian goods, and then seek additional profits. This objection demonstrates a misunderstanding of the place of the maximin decision rule, as I shall show. -/- I believe that both criticisms stem from a close and careful reading of Buchanan's essay on Rawls. Unfortunately, Buchanan himself seemed to have misunderstood Rawls' original arguments. I rely on problems in Buchanan's original work to defend Rawls' theory against Oyeshile's criticisms. (shrink)

The principle that a sentence should be proportionate to the seriousness of the offence remains at the centre of penal practice and scholarly debate. This volume explores highly topical aspects of proportionality theory that require examination and further analysis. von Hirsch and Ashworth explore the relevance of the principle of proportionality to the sentencing of young offenders, the possible reasons for departing from the principle when sentencing dangerous offenders, and the application of the principle to (...) socially deprived offenders. They examine the claim that the principle tends to be associated with greater severity in sentencing, and explore the relevance of penance and of restorative justice to proportionality theory. Their examination of arguments and counter-arguments culminates in a re-statement of the main criteria for proportionate sentencing.The authors are well known for their previous writings on proportionality theory, and this volume broadens the theory to deal with important contemporary issues in crime and punishment. (shrink)

Assisted migration (AM) is a translocation of the representatives of species to areas outside their natural habitats as a response to climate change. This article seeks to identify how customary norms and general principles of international environmental law could guide the development of regulation of AM maximizing the benefits of using AM and minimizing AM-related risks. Among the customary norms and principles of international environmental law discussed in the article and relevant to the regulation of AM are the permanent sovereignty (...) over natural resources, the principle of cooperation, the no-harm rule, the precautionary principle, the principles of prevention, due diligence, and obligation to conduct environmental impact assessment (EIA), the principles of integration and intergenerational equity, common but differentiated responsibilities, and the polluter pays principle, the principles of non-regression, progression, resilience, in dubio pro natura, the principle of ecological proportionality, and the principle of access to information, public participation, and access to justice in environmental matters (principle of good governance, environmental democracy). (shrink)

Across a wide range of legal contexts, E. Thomas Sullivan and Richard S. Frase identify three basic ways that government measures and private remedies have been ...

Few observers of relationship dynamics would dispute the claim of interdependence theorists that a defining feature of close relationships is the extent to which partners influence each other's thoughts, feelings, or behaviors. However, partners do not behave simply in response to each other's behavior; both partners in a given relationship bring themselves - indeed, their selves - into the relationship as well. Not only are individuals' selves enormously complex and rich in content, but so too are the multitude of personality (...) characteristics, including traits, values, attitudes, motives, and emotions, that contribute to selves' richness. Gaines, Jr provides a major integration of research on personality with research on relationship science, and demonstrates how personality constructs can be readily incorporated into the two most influential theories of close relationships: attachment theory and interdependence theory. This study will be of value to scholars in the fields of close relationships, personality psychology, communication studies, and family studies. (shrink)

The principle of proportionality, which has become the standard test for adjudicating human and constitutional rights disputes in jurisdictions worldwide has had few critics. Proportionality is generally taken for granted or enthusiastically promoted or accepted with minor qualifications. A Critique of Proportionality and Balancing presents a frontal challenge to this orthodoxy. It provides a comprehensive critique of the proportionality principle, and particularly of its most characteristic component, balancing. Divided into three parts, the book presents arguments against the proportionality (...) test, critiques the view of rights entailed by it, and proposes an alternative understanding of fundamental rights and their limits. (shrink)

The principle of equal consideration of interests is a very popular principle in animal ethics. Peter Singer employs it to ground equal treatment and solve the problem of the basis of equality, namely the problem of why we should grant equal treatment despite the variability of people’s features. In this paper, I challenge Singer’s argument because ECOI does not provide plausible grounds to presume that the interests of diverse individuals are actually equal. Analyzing the case of pain and (...) the interest in not suffering in particular, I contend that there are some insurmountable epistemic and axiological problems in accounting for the equality of interests. Besides criticizing ECOI as a basis of equality, I argue that we need to rely on an equality of moral status. I conclude by providing some considerations on the relation between equality and the principle of proportionality. (shrink)

Certain methods and weapons are traditionally considered to be?mala in se?, i.e. evil in themselves. Examples are mass rape campaigns and land mines. This article examines different interpretations of the principle that belligerents ought not to use such means. Some interpretations are reductionist in the sense that they see the principle as an instance of other principles regulating conduct in war, namely the principles of discrimination and proportionality. I suggest a horizontal and a vertical dimension of the latter. (...) Resort to violence can then be unjustified if the persons are not liable to be attacked because they bear no responsibility for the relevant threat, the amount of harm is disproportionate compared to what can be achieved by the resort to violent force, or the kind of harm is disproportionate by making individual persons suffer in ways that no one should have to endure. I defend the vertical dimension of proportionality as a key to understanding the principle of mala in se and consider whether it leads to an absolute prohibition against such means. (shrink)

Our aim is to draw a set of distinctions among types of goods which has significant implications for theories of distributive justice. We begin by providing a general account of two sets of properties--fungibility and nonfungibility, divisibility and indivisibility--and argue that goods can be distinguished according to these criteria. Further, we contend that these distinctions entail complications for structural principles of distributive justice (i.e., principles such as maximin that distribute payoffs to positions). As an example we consider James Fishkin’s (...) discussion of structural principles, arguing that Fishkin’s view that (i) value, structure, and assignment are independent holds only to the degree that the goods considered are fungible and divisible, (ii) structural principles face difficulties beyond those which Fishkin identifies and addresses with his principle of nontyranny, since structural principles cannot accommodate highly non¬fungible, indivisible goods, and (iii) these difficulties can be managed through the application of a value-sensitivity proviso. We then show that two important goods, medical care and advanced education, are highly nonfungible and indivisible and thus support the distinctions drawn earlier. Finally, we specify the nature of complementary contributions as well as coordination problems between structural principles and the value-sensitivity proviso in their application to distributive justice issues. -/- . (shrink)

Over the past decade, the Five Eyes Intelligence community has argued cryptosystems with end-to-end encryption (E2EE) are disrupting the acquisition and analysis of digital evidence. They have labelled this phenomenon the ‘problem of going dark’. Consequently, several jurisdictions have passed ‘responsible encryption’ laws that limit access to E2EE. Based upon a rhetorical analysis (Cunningham in Understanding rhetoric: a guide to critical reading and argumentation, BrownWalker Press, Boca Raton, 2018) of official statements about ‘going dark’, it is argued there is a (...) need for a domain-specific principle of cryptographic justice to reorient the debate away from competing technocratic claims about the necessity, proportionality, and accountability of digital surveillance programs. This article therefore specifies a principle of cryptographic justice by adapting more general norms of information justice to decision-making about encryption law and policy. The resulting principle is that encryption laws and policies should be designed to empower the comparatively powerless to protect themselves from domination (i.e., morally arbitrary forms of surveillance). It is argued this principle can reorient decision-making about encryption law and policy towards consideration of how cryptography impacts systems-level power dynamics within information societies. (shrink)

The proportionalist position on the revision of the principle of double effect is now an important feature of moral discourse in contemporary Roman Catholic theological discussion. While its claim to being rooted in the work of Saint Thomas Aquinas is defensible, its view on the universal applicability of proportionate reasoning for determining the moral rightness or wrongness of actions is not without problems in some key areas, such as the distinction between direct and indirect consequences of an action. (...) Indeed, proportionalists often argue in manners that would suggest that they have discarded this distinction outright. Such a result, it is argued, would be a grave error for Christian ethics. (shrink)

The paper observes the relation of fictional/figural discourses to language-games that are active in reality. The starting point for the discussion is the “theory of two contexts” by Arne Merilai, the basic idea of which is distinguishing between fictional and factual speech acts on the basis of their different contexts of truth value. It seems to be justified to expand it to the whole sphere of figurality. After that the paper views John Gibson’s Wittgensteinian theory of fiction as an archive (...) of standards/etalons of language-games and a laboratory of reshaping and creating these standards. The fictional/figural sphere can be described as the area of possibility that creates language-games of reality via poiesis. The article describes some cases where the logic of figural sphere is introduced directly into real political discourse, forcing the reality to act according to the rules of art, but thus excluding the ethical freedom of our real-life language-games. It means that there exists a certain principle of metonymy between the figural sphere as archive and laboratory of standards, on the one hand, and the language-games of reality, on the other hand, while violation of that principle involves a danger of losing the reconciliatory power of fictionality/figurality that, according to Jaak Tomberg, is a significant function of literature as a human practice. There are several possibilities for further analysis: the cases where the danger can be turned into something positive; the problems and gains of art forms (certain forms of the theatre, happenings) that use techniques of intrusion into reality; the questionif such violation of the “principle of metonymy” is specifically connected with modernist avant-gardism or not. (shrink)

One of the primary aims of Christian ethics is to discover how we can convert our work toward God's purposes so that God can make our work holy. In this book, Gaines illuminates this topic as something the people of God can use to reorient our lives toward the way of Jesus and the mission of God in the world. Christians are called to action in God's created world, which is why reasoning engages practice in the chapters of this book (...) so that Wesleyan readers can think and act morally in ways that are faithfully Christian and holy in response to the leading of God. (shrink)

The precautionary approach has been widely considered reasonable for many issues in environmental policy, including climate change. It has also been recognized, however, that standard formulations of the precautionary principle suffer from many difficulties. An influential strategy to avoid these difficulties is to formulate a narrow version of the principle on the basis of the maximin rule. Rawls proposed that following the maximin rule can be rational under certain conditions. Defenders of this strategy argue that these (...) conditions are approximated when it comes to issues like climate change. In the first part of this paper, I argue that the Rawlsian conditions do not establish the unique rationality of the maximin rule, hence the precautionary principle cannot be defended on its basis. When the Rawlsian conditions are approximated, other principles can also lead to reasonable choices. In particular, a prioritarian principle can capture the precautionary approach and serve a useful role in climate change policy. I develop this proposal in the second part. (shrink)

This essay focuses on proportionality stricto sensu as a consequential test of balancing. The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic balancing rule into a series of principled balancing tests, taking into account the importance of the rights and the type of restriction. This (...) approach provides better guidance to the balancer , restricts wide discretion in balancing, and makes the act of balancing more transparent, more structured, and more foreseeable. The advantages of proportionality stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialog between the political brunches and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu however has it critics: some claim that it attempts to balance incommensurable items; others that balancing is irrational. The answer to the critics is that it is a common base for comparison, namely the social marginal importance and that the balancing rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu. (shrink)

This paper presents a non-consequentialist defense of Rawls’s general conception of justice requiring that primary social goods be distributed so that the least share is as great as possible. It suggests that a defense of this idea can be offered within a Rossian framework of prima facie duties. The prima facie duty not to harm constrains people from supporting social institutions which do not leave their fellows with goods and resources above a certain threshold. The paper argues that societies in (...) accord with the Rawlsian general conception come closest to meeting this requirement. This way of arguing for the conception enables the defenders of the theory to elude standard objections offered by utilitarians, libertarians, and even other egalitarians. (shrink)

In this article, we critically scrutinize the principle of proportionality when used in the context of security and government surveillance. We argue that McMahan’s distinction from just warfare between narrow proportionality and wide proportionality can generally apply to the context of surveillance. We argue that narrow proportionality applies more or less directly to cases in which the surveilled is liable and that the wide proportionality principle applies to cases characterized by ‘collateral intrusion’. We argue, however, that a more (...) demanding criterion than the lesser-evil justification that wide proportionality frequently entails is necessary in cases characterized by intentional intrusion upon non-liable individuals. The distinction between foreseeing and intending intrusion into the lives of individuals who are not liable has not previously been specifically addressed in discussions concerning surveillance ethics. This specification is thus increasingly important due to the general growing tendency for adherence to the precautionary principle and policies aimed at anticipating criminal acts before they are committed. Preventive surveillance of non-liable actors is considered an important instrument for obtaining this aim and thus calls for moral scrutiny in terms of permissibility and proportionality. We suggest the concept ‘wide proportionality +’ which applies to cases of intentional intrusion of non-liable individuals. (shrink)

Alan Gewirth's Reason and Morality , in which he set forth the Principle of Generic Consistency, is a major work of modern ethical theory that, though much debated and highly respected, has yet to gain full acceptance. Deryck Beyleveld contends that this resistance stems from misunderstanding of the method and logical operations of Gewirth's central argument. In this book Beyleveld seeks to remedy this deficiency. His rigorous reconstruction of Gewirth's argument gives its various parts their most compelling formulation (...) and clarifies its essential logical structure. Beyleveld then classifies all the criticisms that Gewirth's argument has received and measures them against his reconstruction of the argument. The overall result is an immensely rich picture of the argument, in which all of its complex issues and key moves are clearly displayed and its validity can finally be discerned. The comprehensiveness of Beyleveld's treatment provides ready access to the entire debate surrounding the foundational argument of Reason and Morality . It will be required reading for all who are interested in Gewirth's theory and deontological ethics and will be of central importance to moral and legal theorists. (shrink)

Owing to the problem of inescapable clashes, epistemic accounts of might-counterfactuals have recently gained traction. In a different vein, the might argument against conditional excluded middle has rendered the latter a contentious principle to incorporate into a logic for conditionals. The aim of this paper is to rescue both ontic mightcounterfactuals and conditional excluded middle from these disparate debates and show them to be compatible. I argue that the antecedent of a might-counterfactual is semantically underdetermined with respect to the (...) counterfactual worlds it selects for evaluation. This explains how might-counterfactuals select multiple counterfactual worlds as they apparently do and why their utterance confers a weaker alethic commitment on the speaker than does that of a would-counterfactual, as well as provides an ontic solution to inescapable clashes. I briefly sketch how the semantic underdetermination and truth conditions of mightcounterfactuals are regulated by conversational context. (shrink)