This chapter develops a theory of categorical normativity, of those principles that have authority over us regardless of our ends and interests. It argues that there is an intimate connection between these norms and the conditions of agency. In this respect, it offers a version of constitutivism. But the version of constitutivism defended is unique in a few respects. First, it is naturalistic: agency is an emergent property, like the properties of biology and economics. Second, it is social: agency is (...) something constructed by the complex interaction of agents. And third, it supports the normativity of a particular contractualist procedure: adhering to Kant’s Formula of the Realm of Ends is a condition on agency, and so a categorical requirement. (shrink)

Proceedings of the 1982 Colloquium in Cerisy-la-Salle, France.

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which render certain norms, (...) but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

This volume contains a selection of papers presented at the special workshop "Truth and Objectivity in Law and Morals," held at the 26th World Congress of the IVR. The papers deal with diverse but correlated issues such as the search for truth in and through legal argumentation; the intelligible character of rules inside theories of interpretation which guarantee the coherence and the integrity of law; the role of hermeneutic analysis in the construction of the objectivity of law; the (...) procedural and contextual aspects of objectivity in legal reasoning; the role of objectivity in the distinction between the context of justification and the context of discovery; the problem about truth of normative propositions and legal statements; the incompatibility of non factualism with the traditional account of validity and legality; as well as the possibility of objectivity in morals. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

In the course of his argument for a common law conception of Constitu- tional Bills of Rights and judicial review, Wil Waluchow claims that there is a principled distinction to be drawn between a community’s ‘opinions’ or ‘mere moral preferences’ and its ‘true’ or ‘authentic’ moral commitments. Moreover, he argues that it is possible for judges to identify a community’s authentic moral commitments and apply them to decide particular cases. If he is right, it is not the case that judges, (...) in making a decision about the application and scope of constitutional rights, are inevitably importing their own subjective moral standards into the decision. I analyze Waluchow’s use of the moral opinions -moral commitments distinction. I argue first that the distinction presupposes a descriptive methodology of constitutional interpretation. I suggest however, that the methodology of interpretation in Bills of Rights cases is constructive and involves substantive, ‘evaluative and justificatory’ reasoning by interpreters and judges. I then argue that the moral opinions-moral commitments distinction either cannot do the work that Waluchow’s argument requires, or, if it is modified to do the work, it becomes a substantive distinction. A substantive conception of authenticity creates a problem for Waluchow because it undermines his purely procedural account of democratic self-governance.Resumen:Wil Waluchow al desarrollar su argumento a favor de una concepción propia del common law para las constituciones y para el judicial review, sostiene que existe una distinción de principio entre las “opiniones” de la comunidad o sus “simples preferencias morales” y los compromisos morales “verdaderos” o “auténticos”. Además, sostiene que para los jueces es posible identificar los compromisos morales auténticos de una comunidad y aplicar los mismos en la decisión de casos concretos. Si tiene razón, entonces los jueces al decidir casos concretos sobre el alcance de los derechos constitucionales no canalizan sus propios estándares mora- les subjetivos a las decisiones. En este estudio analizo el uso que hace Waluchow de la distinción entre opiniones morales y compromisos morales. Argumento en primer término que la distinción presupone una metodología descriptiva de la interpretación constitucional, y sugiero que no obstante lo anterior, la metodología de interpretación de los derechos constitucionales es constructiva e implica por parte de los intérpretes y jueces un razonamiento “evaluativo y de justificación” sustantivo. Posteriormente argumento que la distinción entre opiniones morales y compromisos morales no tiene el alcance que pretende y requiere el trabajo de Waluchow y si se modifica, entonces se convierte en una distinción sustantiva. Una concepción sustantiva de autenticidad le genera un problema a Waluchow porque debilita su explicación puramente procedi- mental de un auto-gobierno democrático. (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)

Equal Justice explores the role of the idea of equality in liberal theories of justice. The title indicates the book’s two-part thesis: first, I claim that justice is the central moral category in the socio-political domain; second, I argue for a specific conceptual and normative connection between the ideas of justice and equality. This pertains to the age-old question concerning the normative significance of equality in a theory of justice. The book develops an independent, systematic, and comprehensive theory of equality (...) and egalitarianism. The principal question is about the importance of equality in a theory of justice. More precisely, we should pose questions in four contracting circles: 1. Is justice the supreme value guiding our setup of the basic structure of society, or are there other, equally important values, such as recognition, care, communal belonging? 2. If justice is the highest guiding principle, which competing ideals—especially equality and freedom—ought to have precedence in a policy oriented toward justice? What status does the ideal of equality have in that framework? 3. If equality is a basic ideal of just policy, how should it be practically realized? What sort of equality (equal opportunity, equality of welfare, resource equality) should be demanded? 4. What patterned distribution of which specific goods does the ideal of equality demand? Which principles of distribution can be justified according to our justice ideal? To conclude and summarize: 5. What is the essential core of an egalitarian theory of justice, as opposed to an inegalitarian theory? These five questions structure the work’s order of argumentation. Part A elaborates the conceptual foundations and basic moral principles of justice and equality. Chapter I sets out to install justice as the central moral category in the socio-political domain. At the beginning of the first chapter, the conceptual foundations of justice are clarified. While not eliminating the classical distinctions between different forms of justice, I argue that the distributive paradigm is of primary importance. The primacy of justice in the socio-political domain is developed out of a confrontation with alternative positions, those which maintain either that justice generally, or distributive justice in particular, are subsidiary virtues. At the end of Chapter I, the first of the questions mentioned above is answered in a way that establishes justice as the guiding normative concept for the foundation and evaluation of any social order. To clarify the role of equality in a theory of justice, Chapter II separates the idea of equality into four different principles. They are organized in a way that begins with the most general and uncontroversial principle of equality, and progresses towards increasingly detailed and contested principles. There are two theses that articulate and defend the significance of equality for justice: First there is a conceptual connection between justice and equality, in that principles of formal and proportional equality are necessary in order to explicate the concept of justice. These two principles establish an unbreakable bond between justice and equality. Justice can only be explained—or so I argue—by reference to these and other (normative) principles of equality. The second thesis posits a normative relationship between justice and equality, which is disclosed by three substantive principles of equality: moral equality, the presumption of equality, and the principle of responsibility. I argue that the normative core of an egalitarian theory of justice is expressed by the latter two principles, which are themselves based on the first principle, that of moral equality. When we view one another as persons, what form of equality or equal treatment is normatively demanded? I argue that the answer to this question is given by the procedural principle of the presumption of equality: regardless of their apparent differences, all persons deserve strictly equal treatment, unless certain kinds of differences have whatever particular relevance would justify, on generally acceptable grounds, unequal treatment or unequal distribution. The justification of the presumption of equality is central to this work and has considerable importance. If the presumption principle’s validity can be justified by enlisting the principle of general justification, then the primacy of equality, and the essential argument for an egalitarian theory of justice, is established. This would likewise provide a procedure for the construction of a material theory of justice. The second question is answered thereby at the end of Chapter II: Equality should have primacy over competing ideals within a justice-oriented policy. The presumption of equality establishes this primacy and, at the same time, offers an appropriate metric and guideline for the construction of a material theory of distributive justice. The presumption of equality in Part B offers an elegant procedure for the development of a theory of distributive justice. Chapter III clearly sets out the necessary prerequisites that a theory of distribution must satisfy in order to determine a liberal-egalitarian distributional framework. We need to specify in which situation the distribution takes place; which goods are and are not to be distributed; in which respect the presumptive equality is to be produced; and by and to whom, and for what period, the relevant goods are to be distributed. The distribution is based on resources understood as general-purpose means. It is necessary to divide goods into different categories, since the justification for unequal treatment in one domain will not carry over into another. This makes presumptive equality necessarily complex. To that end, four spheres of justice are distinguished: (1) the political sphere, which involves allocating rights through the distribution of civil liberties; (2) the democratic sphere, in which political power and the rights of political participation are regulated; (3) the economic sphere, in which income and property are distributed; (4) the social sphere, in which social positions and opportunities are distributed. This framework of distributive justice answers the third of our guiding questions, about the nature of equality, in terms of equality of resources. Chapters IV and V set out the egalitarian distributive criteria for each sphere. I argue that the generally accepted, fundamental rights of classical liberalism are more effectively reconstructed by reference to the equal resource distribution presumptively required in those spheres. Chapter IV shows that when it comes to the first two spheres, those involving basic rights and freedoms and entitlement political participation, there can be no justified exceptions to the equal distribution of the relevant goods. That section argues, contrary to what we commonly find in theories of freedom or popular sovereignty, that the value of freedom and self-determination as the political basis of autonomy is best realized through the presumption of equal distribution. Chapter V deals with the other two spheres, those of economic goods and social positions, and argues for justified exceptions to equal distribution. In the economic sphere we find one principal reason favouring unequal distribution of resources, and three restrictions and compensations limiting that inequality. The basic exception to equal economic distribution arises from the unequal consequences of personal responsibility. From a suitably egalitarian standpoint, the principle of responsibility is the normative principle that determines which reasons justify economic inequality. Here the basic idea is that unequal shares of social goods are fair if they result from the choices and deliberate actions of the relevant parties. That individuals have to bear the costs of their own choices is a condition of autonomy. However, benefits or disadvantages arising from arbitrary and unmerited differences in social circumstances or natural endowments is unfair. The unequal consequences of independent decision-making and action must therefore be limited by compensating first for preferences, secondly for disadvantages, and thirdly by redistributing wealth in aid of the worse-off. I situations of emergency, compensating for disadvantages has priority over all other claims, owing to the urgency of the situation. Social inequalities go beyond the permissible limit if it is possible to improve the long-term social or economic situation of the worse-off by redistributing wealth to them. These exceptions lead to a complex system of free economic action within a framework of compensatory tax and transfer mechanisms. Finally, in the social sphere, the distribution of social positions, offices and opportunities must be structured to ensure that equally talented and motivated citizens have roughly equal chances of obtaining those offices or positions, irrespective of their economic or social class backgrounds. This compromise is permissible for reasons of freedom and prudence, and it makes a certain measure of inequality acceptable. The fourth of our guiding questions is answered accordingly. There are five principles of justice for the basic structure of society, and five legal principles that govern the special distribution of goods in the respective spheres—all are ranked according to their most defensible grounds of priority, ensuring that everyone is accorded equal justice. Chapter VI recapitulates the initial question of equality’s value. The conception of equal justice developed in this work postulates five principles of equality and five principles of law; these constitute an egalitarian framework because they support and promote social justice. Equality has value with respect to them, but is not given any independent, intrinsic value. That is why I call the account developed here a form of constitutive egalitarianism: justice is realized through the realization of equality, itself accomplished by applying the five postulates of equality and five distributive principles of law. This is an egalitarianism on two levels. The first level is involves the claim that morality or justice is conceptually connected with equality. The second level gives equality a substantial weight in what is conceptually validated at the first level, namely the presumption of equality, and constructs an appropriate interpretation and conception of distributive justice through principles of distribution for the individual spheres. The weight and importance of equality is shown by the distributive criteria applied to those spheres. This answers our final guiding question about the nature of an egalitarian theory. (shrink)

The second edition of this volume is a comprehensive, practical and up-to-date analysis of the principles and rules of construction and post-probate issues, including how the courts interpret wills once they become the subject of litigation. This comprehensive work takes account of all recent case law-as well as new legislation such as the Land and Conveyancing Law Reform Act 2009-pertaining to trustees, trusts, trusts of land, and the amendments of the Rules of the Superior Courts by SI No 254 (...) of 2016 relating to the conduct of trials, and SI No 255 of 2016 which deals with pre-trial procedures. Part 1 provides the principles and rules of construction, and the rules of intrinsic and extrinsic evidence, which are applied by the courts when attempting to ascertain and give effect to a testator's intention from vague or uncertain language used by him or her in creating gifts. Part 2 deals with issues that may arise in construction suits concerning, not only uncertain language used in the creation of gifts, but also the actual legal validity of such gifts. Part 3 supplies a useful constructive and interpretative methodology that may be applied for construing and interpreting relevant statutory provisions. Part 4 deals with the forms and procedures required for instituting construction suits, and with issues involving the award of costs. This book is written primarily with legal practitioners in mind and will be of practical use in construction and probate litigation matters. It will also be a useful resource for academic lawyers, students engaged in professional courses, and those undertaking law degrees. [Subject: Wills & Trusts, Irish Law]. (shrink)

Translated by Drew S. Burk and Anthony Paul Smith. Excerpted from Struggle and Utopia at the End Times of Philosophy , (Minneapolis: Univocal Publishing, 2012). THE END TIMES OF PHILOSOPHY The phrase “end times of philosophy” is not a new version of the “end of philosophy” or the “end of history,” themes which have become quite vulgar and nourish all hopes of revenge and powerlessness. Moreover, philosophy itself does not stop proclaiming its own death, admitting itself to be half dead (...) and doing nothing but providing ammunition for its adversaries. With our sights set on clearing up this nuance, we differentiate philosophy as an institutional entity, and the philosophizability of the World and History, of “thought-world,” which universalizes the narrow concept of philosophy and that of “capital.” We also give an eschatological and apocalyptical cause to this end, of “times” or “ages” rather than those of philosophical practice. Last but not least, it is the Future itself in the performativity of its ultimatum that determines this end times, reversing these times from the Identity the Future accorded to it, withdrawing the thought-world from the lie of its death. Why this style of axioms and oracles, these more or less subtle distinctions, old and debased, with an appeal to the ultimata , to end times and last words? We fight to give, parallel to the concept of Hell, its new theoretical position, for its philosophical return and its non-philosophical transformation. No more so than any other word, Hell is not a metaphor here, just the Principle of Sufficient World. Every man, no doubt, has his “hell” readily available, connivance, control, conformism, domestication, schooling, alienation, extermination, exploitation, oppression, anxiety, etc. We have our little list that the Contemporaries established in the previous century in the same way one used to construct lists of virtues and vices or honors and wealth. They invented it for us without knowing it, for us-the-Futures who have as our responsibility to invent its use. In the Christian and Gnostic tradition, the struggle of the End Times takes place “on earth.” The most sophisticated of believers have it taking place in Heaven as well, above all in Heaven. The various kinds of gnosis imagine infinite falls and vertiginous highs, the vertigo of salvation. On Earth as in Heaven, a hell is available. The Marxists have the law of profit and the control of production, the class struggle Capital imposes on man. The Nietzscheans, the dull grumble of the struggle in the foundations of World and History, the domestication of man, the society of control. The phenomenologists, the capture of being, the most superficial amongst them, the age of suspicion. But all of these “hells” are taken from World, History, Society, and Religion. What we call Hell is no longer of the order of these specific and total intra-worldly generalities, it is both more singular and more universal, no longer being at all of the same order, it is the determinant Identity of these small hells strung out through history but unified here in the name of the last Humaneity. It is even found within the French idiom for hell [ enfer ], en-fer literally means “in-irons.” We are as much “in-irons” as we are “alive” [ en-Vie ]. We believe in Hell but as non-philosophers and it is even because we are non-philosophers that we can believe in it outside of any sort of religion. Hell is less mythological than ideological, it combines philosophizability with universal capital. Under what form? A single term could work for them without being a metaphor or something they would participate in by analogy, a more innovative and conjectural term than control, more universal than profit. It would denote the growing and permanent extortion of a surplus-value of communication, of speed and of urgency in change, in productivity and in work, in the pressure of images and slogans. It would be worse than solicitation, more tenacious than capture, more active and persecutory than control, softer and more insidious than a frontal attack, just as perverse as questioning and accusation, less brutal and offensive than extermination, less ritualized than inquisition, it would be soft and dispersed, instantaneous and vicious, it would be a crime without declared violence. Collusion and conformism, it would be afraid to show itself. Related to rumor, from which it borrows its infinite and tortuous ways. It is harassment. As a modernized form of Hell, perhaps harassment has a long future in front of it, of innocent torture, slow assassination, in short the fall, but radical with no way of recovering and which tolerates only salvation. THE PHILOSOPHICAL PAST OF NON-PHILOSOPHY Non-philosophy is thus Man as the utopian identity of the philosophical form of the World, a utopia destined to transform it. We still have to understand these equations, in particular that of the being-uni-versed from Man, and this book adheres to this by re-exposing non-philosophy in a different way via one of its new possibilities. It uses this opportunity to once again take up formulations that lead to objections answering certain external critics, as well as revisiting diverging interpretations specific to non-philosophers. A portion of this book is devoted to going through these theories via a strict or “lengthy” presentation of non-philosophy, and its defense against more expeditious solutions. This work of rectification is the occasion, merely the occasion, for refocusing non-philosophy on Man (the “Man-in-person,” “Humaneity”), and in a more innovative manner, on its utopian vocation established since the book Future Christ . As for this “occasion,” it is quite obvious. A school of posture, not to say a school of thought, supposes a minimum of closure from the most liberating of knowledge, a heritage, its utilization, and its no less certain dispersal. Within its development, a variety of interpretations will no doubt appear, deviations that are as much normalizations, and a struggle against this multiplication of divergent tendencies. These are perhaps not inevitable evils, especially here, merely a normal development according to the twisting paths of history. But the problem is made worse by the fact that this school of non-philosophers is that of utopia. Not the former attempts devoted to commenting on the worst authoritarian and criminal forms of the past and the present, but utopia as the determinant principle for human life, or to put it another way, of the Future as an irreducible presupposition of (for) thinking the World and History. Non-philosophers are engaged in an aleatory navigation between the respect for the most rigorous utopia, whose rules are not that of the reproductive imagination but those from the Future determining imagination itself, as well as the temptations, diversions, and remorse of history. Little by little, we will begin to understand that the Future as we understand it no longer has any temporal consistency or positive content, without being an empty form or a nothingness, but that it is foreclosed to past and present History, just as it is foreclosed to the place of places, the World, and that it is the only method for establishing the practice of thinking in a non-imaginary instance. Because it is the World and History that are imaginary and have a terrible materiality, it is not necessarily utopia. We will overlap two objectives here: the defense of non-philosophy against the (non-) philosophers that we are, only occasionally, and the introduction of philosophy to a rigorous future. Together they set out to definitively render, without any possible return to philosophical conformism or towards the facilities of the past and present, the non-philosophical enterprise understood as utopia or uchronia. Imagination and speculation, left to themselves and thus undistinguished, are quite good for participating in the grand game of History but have little value or worse for the Future which is unimaginable and unintelligible and must be maintained as such. MAN-IN-PERSON AS SUSPENSION OF THE PHILOSOPHICAL CHORA The point where philosophical resistance is concentrated is without a doubt the invention of the Name-of-Man, first name, oracular as much as axiomatic, of the determining cause for the non-philosophical posture. And that which concentrates the differends is the style of non-philosophy as identity that possesses the dual aspect, of discipline and of the oeuvre, of the theorem and of the oracle. But the real difficulty in understanding the simplicity of non-philosophy is profoundly hidden in the depths of philosophy itself. Because philosophy, from Parmenides to Derrida, even Levinas, continues to be a divided gesture, without a veritable immanence, transforming its thematic contents of transcendence in also forgetting to transform the operative transcendence in the element from which the ontology of surface is established which we will call, in memory of Plato, the chorismos. The general effect of the chora literally gives place to philosophy, demanding binding and sutures to which we will once and for all “oppose” the Man-in-person, his power of cloning, and his future being. All philosophy contains a hinter-philosophy in which it deploys its operations and weaves its tradition like an understudy of a topographical nature and in the best of cases being itself topological. Philosophy as well consists of two levels, its pre-ontological operative conditions on the one hand, and its superficial theme on the other, it too has its presupposed, but is not aware of it or erases it within the unity of appearance named Logos. Rightly, the Logos, and its flash or lightning nature, possesses a “dark precursor,” the chora, which is as much a virtual image, and philosophy, dazzled by its own lightning flash, seems to completely forget about it at the same time it sets itself up within it. Non-philosophy risks taking this same path, of confusing what it believes to be the real with its phantom double, contenting itself to working on the thematic level of philosophy, not its surface objects and its idle chatter (we stopped talking about this a long time ago and in any case they are merely simple materials for inducing a work of transformation), but the transcendence-form of its objects. In the end it risks, through precipitation, taking back up the heritage of philosophy, a heritage of a misunderstood presupposed, even more profound than the play of transcendences. This is what the imperative of the radicality of immanence meant, to treat immanence in an immanent manner, not to make a new object out of it. And from here we get non- (philosophy) and its refusal of the Platonic chorismos , symbol of all abstraction, and thus all transcendental appearance. There are no illusions. The message will leave a heritage in tattered pieces and interpretations. But it was difficult not to dispute the differend to its core. There will be complete confusion of the multiple, possible, and necessary effectuations of non-philosophy with its interpretations. The non-philosophical or human freedom of philosophical effectuation and the philosophical freedom of interpretation. Effectuations demand non-philosophy to return to zero from the point of view of its philosophical material and thus also but within these limits the formulation of its axioms , but in no way providing from the outset divergent interpretations of the aforementioned axioms. They are divergent because they do not take into account the material from which these axioms are derived within non-philosophy, and because they do not see themselves as symptoms of another vision of the World. The utterances of non-philosophy are not mathematical theorems and pure axioms, they merely have a mathematical aspect . They are, by their extraction or origin, mathematical and transcendental. And by their determined function in-Real, within non-philosophy, they are identically in-the-last-Humaneity entities which have an aspect of an axiom and an aspect of interpretation (or an oracular aspect as we say) that attempts (sometimes it is ourselves who provide the occasion) to isolate and transform, in complete freedom of interpretation. There will be an opportunity to complain about the complex character of the language of non-philosophy, an idiom saturated with classical references, sophisticated in a contemporary way. Its freedom of decision up against the whole of philosophy demands these effects of “complication” and “privatization,” as the saying goes. But it also demands fighting against the drift [ dérive ] of the pedagogical-all and the mediatic-all that leads philosophy into the shallow depths of opinion, which is the site of its impossible death. The noble idealism of “pop-philosophy” has been consumed into a “philo-reality;” against this we propose philo-fiction. Parricide, which is at the bottom of these interpretations and which we can judge as being quite fertile, although it has informed tradition, only takes place once or within one lone meaning. In regards to Parmenides, it was possible; Plato introduced the Other as non-being and language, bringing into existence the philosophical system of the World, but is it possible to repeat it again with the same fecundity in regards to non-philosophy, this time in introducing (non) religion or (non) art, still mixing them without taking into account this mixture, alternatively as a philosophical or religious resentment? If philosophy begins via a crime, it is no doubt obliged to continue down similar pathways, to the effect that the crimes of philosophy, once the founding crime has been committed, are a reaction of self-defense. It is undoubtedly from this that we get Marx’s declaration that history begins by tragedy and repeats itself or ends in farce. The preservation of rigor and fecundity is, in every respect, a psychologically difficult task within a theory such as non-philosophy. Having posited an essential objective of liberation in regards to philosophy and its services, one has often understood this objective as an authorization of providing particular interpretations of its axioms and ends up obliterating their scope. This ends up confusing, on one hand, two kinds of freedoms in regards to non-philosophy, the freedom of its interpretations and the freedom of its effectuations. On the other hand, any defense of “principles” against precipitated interpretations is immediately taxed with a will to orthodoxy, a prohibitive objection when we are dealing with, as is the case here, a heretical theory of thought. Nevertheless, it is time to stop confusing heresy as the cause of thought with an ideology of heresies, which is certainly not at all our object, but rather a form of normalization. As for the “disciplinary” aspect, which is not the only aspect, it demands something other than philosophical “answers to objections,” a precision in the definition and use of its procedures in the formation of utterances, since non-philosophy is neither a supplementary doctrine interior to philosophy nor a vision of the world but one whose priority is a “vision of Man,” or rather Man as “vision” that implies a theory and a practice of philosophy. In the end, struggle is only one aspect of non-philosophy, not its whole or telos, struggle coming only from its materiality. In particular, if the discipline of non-philosophy is inseparable from struggle, it is not a question of reducing the monomaniacal obsession of its “marching orders.” This would reduce its complexity and kill its indivisibility, deploying it in a “long march” and a form of Maoization whose philosophical presuppositions no longer have any pertinence here, a case of the One and the Two, which are now cloned and no longer tied together. More generally, non-philosophy is a complex thought composed of a multitude of aspects, which is to say, unilateral interpretations, of a philosophical origin but reduced by their determination in-the-last-instance . The “liberalism” of non-philosophy is merely one of the aspects of which it is capable, not an essence. Similarly, it is only capable of having a “Maoist” aspect. Let us generalize. The weakness of non-philosophy is due to a specific cause, the determination-in-the-last-Humaneity of a subject for the World. Everything that has a right to the philosophical city can be said about it in turn and in a retaliatory mode since Man contributes nothing of himself that Man takes from the World. We can consider non-philosophy as being pretentious, absurd, idealistic, empty, materialistic, formalistic, contradictory, modern, post-modern, Zen, Buddhist, Marxist; it endures or tolerates, perhaps “appeals” to, or at least renders possible, sarcasms, ironies, and insults without even talking about the misunderstandings, partly for the same reason as psychoanalysis. All of this goes beyond simple “deviations.” They are its aspects, which is to say, its “unilateral” philosophical interpretations in both senses of the word, being either sufficient coming from the mouth of philosophers, or reduced to their absolute dimension of sufficiency and totality in the mouths of non-philosophers, and both times due to the weakness and strength of Man-in-person as their determination only in-the-last-instance. The non-philosopher is certainly not a Saint Paul fantasizing about a new Church. The non-philosopher is either a (Saint) Sebastian whose flesh is pierced with as many arrows as there are Churches, or a Christ persecuted by a Saint Paul. What is engaged in here is the practice of retaliation. A negative rule of the non-philosophical ethics of outlawed discussion by way of argumentation (the sufficient is you, the orthodox one is always you, you are the fashionable one, and when a master you are someone else) that is founded on the confusion of effectuations of non-philosophy and of its overall interpretations. Retaliation is the law but as with any too-human law, it must acquire a dimension that displaces it, or rather emplaces it and takes away its authority but not all of its effectiveness. If the non-philosopher is only authorized by himself, which is to say by philosophy but limited by the Real-of-the-last-instance, its critique of other non-philosophers can merely be retaliatory under the same conditions, only by the Real limited in-the last-instance. THE TREE OF PHILOSOPHICAL SAINTLINESS The thematic horizon or material of these debates is in the relationships between philosophy, religion as gnosis, and non-philosophy. It is inevitable, regarding non-philosophers in general (whether they are non-philosophers by name or simply its neighbors) that we often end up evoking Marx’s Holy Family and imagining, arranged on the neighboring branches of the tree of philosophy and annexed, sometimes abusively, to non-philosophy, authors who would quite evidently and quite rightly refuse this label. So it is that we find, for example, a Saint Michel, a Saint Alain, a Saint Gilles 1 without even mentioning the youngest who aspire as well to the freedom of “saintliness” and who make their muted voices heard here. If there is a Holy Family of non-philosophers, it extends completely beyond these three, provided that the sectarian spirit can save us. This book is organized in the following manner: To begin, in order to recall the essential part of the problematic, we have organized a Summary of Non-Philosophy , a vade-mecum of notions and basic problems, in a classical style. Secondly, there is Clarifications On the Three Axioms of Non-Philosophy , designed to posit their proper use as much as to elucidate their meaning. Thirdly, an analysis of Philosophizability and Practicity , both being extreme constituents of philosophical material or the contents of the third axiom. Fourthly, the heart of this work: Let us Make a Tabula Rasa of the Future or of Utopia as Method . Fifthly, we have a theoretical outline of a non-institutional utopia, The International Organization of Non-Philosophy, L’Organisation Non-Philosophique Internationale, (ONPHI) already created in practice but under the conditions of possibility and functioning from which here we put into question “de jure,” thus not without a perplexity concerning “facts,” in any case, without the capability of “getting to the bottom of things.” Sixthly, an essay characterizing The Right and the Left of Non-Philosophy , a brief topology of several philosophizing and normalizing positions of proponents or tenants of this problematic. Seventhly, Rebel in the Soul: A Theory of Future Struggle , a systematic discussion starting from a confrontation of non-philosophical gnosis and non-religious gnosis to the extent that they pose, posed or perhaps still will pose themselves as rivals to non-philosophy in a mixture of fidelity and infidelity. Despite the fact that it can also be read as putting non-philosophy into perspective: it pits against a standard Platonism two contemporary appropriations of Gnosticism. On the basis of the paradigm of Man who never ceases to come as the Future-in-person, each one of these moments strives to reestablish not the “true” non-philosophy and its orthodoxy, but the minimal conditions to respect in order to allow for its maximum fecundity. And in order to bring about one of the last possibilities of its development, making explicit Humaneity as a utopia-for-the-World. In introducing these considerations in the form of a “testament” and “ultimatum,” we want to indicate two things: First, that this is the last time we will intervene in order to caution non-philosophers against the temptation of returning and looking backwards towards philosophy. Only a disillusioned nostalgia for the former World and its traditions barely remain permissible to us.… Secondly, that non-philosophy is also a sort of ultimatum for considering one’s life and transforming one’s thought from the perspective of a uni-version rather than a conversion. Man as future is this ultimatum in action, not an impatient self-proclaimed genius, and philosophy is his testament. It is obviously the ultimatum that determines this testament as “old” with a view towards a life that is, itself, non-testamentary. In and of itself, the “old” can never bear a veritable eschaton. Thus, this book intersects according to the logic of this paradigm, under the sign of the ultimate or “last” as future, philosophy as testament and cautionary note for maintaining the non-philosophical oeuvre as “future” or “utopian.” We will see that between these two dimensions it cradles a theory of struggle. In the end, this book envisions non-philosophers in multiple ways. It inevitably sees them as subjects of knowledge, most often academics insofar as life in the world demands, but above all as close relatives of three great human types. The analyst and political militant are quite obvious, for non-philosophy is close to psychoanalysis and Marxism insofar as it transforms the subject in transforming philosophy. Here again, one must have a sense not of certain nuances but of aspects (of the interpretations, albeit unilateralized) and not in order to construct a simple proletarization or militarization of thought as theory. To be rigorous, rather than authoritarian or spiteful, is its task. And lastly, non-philosophy is a close relative of the spiritual but definitely not the spiritualist. Those who are spiritual are not at all spiritualists, for the spiritual oscillate between fury and tranquil rage, they are great destroyers of the forces of Philosophy and the State, which are united under the name of Conformism. They haunt the margins of philosophy, gnosis, mysticism, science fiction and even religions. Spiritual types are not only abstract mystics and quietists; they are heretics for the World. The task is to bring their heresy to the capacity of utopia, and their utopia to the capacity of the paradigm. NOTES We will recognize allusions, and sometimes references, to closely related or distant themes, but which are related, in the work of Michel Henry, Alain Badiou and via the representative of “non-religious” gnosis of a Platonic origin, in Gilles Grelet. It goes without saying that these discussions are current and local, neither concerning the ensemble of doctrines nor prejudging the eventual evolution of certain amongst them. This concerns defining certain proximities with non-philosophy (rather than adversaries which in some sense they are) and typological and emblematic differends (rather than conflicts with a certain author). (shrink)

Rationality and reasonableness can be illustrated as Janus-faced concepts, not only in a descriptive diagnosis but also in a normative construction of adjudication, and in the analysis of its practical and rhetorical effects. Considering such an illustration, the present reflection returns to the discussion on the relevance of rationality and reasonableness in legal interpretation, aiming at distinguishing and/or connecting principles and criteria, beyond formally logical and/or procedurally argumentative decision-making, and, thus, within a normatively practical adjudication. Such an approach (...) will be presented in two main steps. In a first step, the rationality/reasonableness dichotomy will be discussed within a constitutive connection between principles and criteria in adjudication, and understanding legal principles as normatively substantial foundations to legal criteria—the former as axiological references filtered into the juridical system and the latter as their concretizations, and whose practical adequacy is rhetorically assigned by the interpretive communities involved in/by adjudication, and normatively referred both to their practical accordance to the axiological normativity of the principles they shall presuppose and to their suitability as practical operators to the problematic relevance of the sub judice cases. In a second step, and consequently, encompassing the projection of legal interpretation, in semiotic and in practical-normative perspectives, in order to discuss their constituting practical relevance in adjudication, the rationality/reasonableness dichotomy will be experimented within formal-logical procedures and within practical-dialectical connections between juridical problem and juridical system—therefore stating a discussion on the foundations, the intentionality and the consequences of adjudication, amongst deduction and analogy. (shrink)

Applied naturalism -- Natural rights -- Applied positivism -- A concept of interpretive methodology -- Application of principles of public policy -- Interpretative sources of law -- The formulation of legal principles -- The formulation and application of principles of interpretative construction -- The formulation and application of principles of constructive interpretation -- Application of appropriate equitable principles -- The formulation and application of determinant legal tests and criteria by the courts -- The practical adoption of the jurisprudential (...) process of conceptualisation -- Legal factors and formulae determining correct motion procedures -- The usefulness of templates and principles in maintaining integrity of law in legal practice. (shrink)

This dissertation examines the conceptual limitations of Kant's ethical theory with the purpose of assessing its suitability as a model of practical philosophy based upon the idea of autonomy. My aim is not only to exhibit the specific weaknesses in Kant's treatment of morality, but also to explore a contrast between two different approaches in ethical theory. This contrast can be characterized in terms of an opposition between a 'formal-individualistic' and a 'social-historical' model for the analysis and derivation of ethical (...) principles. The crucial problem here is whether an ethical theory can be constructed on the exiguous basis of concepts such as the 'rationality' or 'freedom' of the will, or whether it requires an insight into the connection between moral principles and specific conditions of historical and social life that constitute the real foundation of moral judgment. ;The dissertation is composed of four chapters. In Chapter One I consider the deficiencies in Kant's treatment of the historical and temporal dimensions of moral volition. I focus especially upon his neglect of the conditions of historical genesis that underlie the framework of moral concepts he analyzes. In the second and third chapters I examine Kant's failure to attend to the social dimension of morality and distinguish two separate parts to this objection: difficulties resulting from his restriction of the scope of moral freedom to the domain of an agent's inner intentions, so that a consideration of the consequences of action is excluded, and problems arising from his monological interpretation of the universalization procedure. Finally, in Chapter Four I argue that Kant's neglect of the historical and social dimensions of morality is by no means accidental. Rather, it is a function of his reliance upon a two-world metaphysical framework in which moral principles are understood essentially as the laws governing a purely rational, non-natural order. The dependence of Kant's ethical theory upon 'problematic' metaphysical premises--particularly in his justification of the moral law--suggests that the two dimensions he excludes from his analysis--history and society--must be integrated within it in order to yield a more convincing elaboration of the basic concepts of morality. (shrink)

Intuitionistic logic formalises the foundational ideas of L.E.J. Brouwer’s mathematical programme of intuitionism. It is one of the earliest non-classical logics, and the difference between classical and intuitionistic logic may be interpreted to lie in the law of the excluded middle, which asserts that either a proposition is true or its negation is true. This principle is deemed unacceptable from the constructive point of view, in whose understanding the law means that there is an effective procedure to determine the (...) truth of all propositions. This understanding of the distinction between the two logics supports the view that negation plays a vital role in the formulation of intuitionistic logic.Nonetheless, the formalisation of negation in intuitionistic logic has not been universally accepted, and many alternative accounts of negation have been proposed. Some seek to weaken or strengthen the negation, and others actively supporting negative inferences that are impossible with it.This thesis follows this tradition and investigates various aspects of negation in intuitionistic logic. Firstly, we look at a problem proposed by H. Ishihara, which asks how effectively one can conserve the deducibility of classical theorems into intuitionistic logic, by assuming atomic classes of non-constructive principles. The classes given in this section improve a previous class given by K. Ishii in two respects: (a) instead of a single class for the law of the excluded middle, two classes are given in terms of weaker principles, allowing a finer analysis and (b) the conservation now extends to a subsystem of intuitionistic logic called Glivenko’s logic. This section also discusses the extension of Ishihara’s problem to minimal logic.Secondly, we study the relationship between two frameworks for weak constructive negation, the approach of D. Vakarelov on one hand and the framework of subminimal negation by A. Colacito, D. de Jongh, and A. L. Vargas on the other hand. We capture a version of Vakarelov’s logic with the semantics of the latter framework, and clarify the relationship between the two semantics. This also provides proof-theoretic insights, which results in the formulation of a cut-free sequent calculus for the aforementioned system.Thirdly, we investigate the ways to unify the formalisations of some logics with contra-intuitionistic inferences. The enquiry concerns paraconsistent logics by R. Sylvan and A. B. Gordienko, as well as the logic of co-negation by G. Priest and of empirical negation by M. De and H. Omori. We take Sylvan’s system as basic, and formulate the frame conditions of the defining axioms of the other systems. The conditions are then used to obtain cut-free labelled sequent calculi for the systems.Finally, we consider L. Humberstone’s actuality operator for intuitionistic logic, which can be seen as the dualisation of a contra-intuitionistic negation. A compete axiomatisation of intuitionistic logic with actuality operator is given, and comparisons are made for some related operators.Abstract prepared by Satoru Niki.E-mail:[email protected]. (shrink)

This article considers the meaning of the ancient Chinese magic square Luoshu. It is known that this square is the most ancient of this type of squares. The importance of the magic square in the philosophical tradition and in the whole culture of China is large. The ancient understanding of number differs from the modern one by its dual character, combining the features of philosophical symbolism and mathematical constructions. Unfortunately, modern interpretations of the Luoshu as well as other numerical constructions (...) preserved by the Chinese tradition are too often limited to a superficial statement of their symbolic, “numerological” nature, ignoring the effects of the mathematical structure represented by them. At the same time, some scholars strongly emphasize the intuitive aspects of numerology, which do not presuppose accuracy. On the contrary, Leibniz saw in the Chinese binary system of thinking the beginning of an exact universal language. The author, appealing to the concept of A.A. Krushinskiy, analyzes the arithmetic laws of the structure of the square. The article shows that the magic square Luoshu is not a numbers game. Without any doubt, its main meaning lies in the application of arithmetic. Chinese magic square is an illustrative implementation of one of the main features of Chinese language and traditional thinking – its rational and mathematical basis. The Luoshu square is a vivid example of visual constructivism in the Chinese style of thinking. By means of the magic square’s scheme, the procedure of generalization that is a basis of concepts formation is carried out. This procedure uses a mathematical magic square algorithm based on the numerical codes of the five elements. The quinary spontaneous symbolism is rooted in the Chinese traditional culture of thinking and life order. (shrink)

Institutions of higher education, especially universities, have undergone a gradual transformation in the last 20 years or so under the pressures of accountability-related measures such as the research assessment exercise, quality assurance procedures, outcomes-based teaching and learning, and the university rankings system. These measures have led academic institutions to adopt practices that emphasize corporate management concerns. Universities are no longer regarded as institutions of learning but more as corporate enterprise. One aspect of this transformation is also seen in the implementation (...) of staff appraisal systems and promotion exercises, which are becoming increasingly formal and less transparent, often operating behind closed doors, and privileging increased power to decision-makers. There is a resulting danger of policies and procedures being designed, constructed, and interpreted to assign maximum control to decision-makers over the outcome of such processes. This paper presents analysis of a corpus of policies, rules, and procedures being used in a number of institutions of higher education, focusing on the issues of transparency, power and control in academic appraisals and promotions, to study the extent to which these rules and procedures are likely to make the exercise transparent and assign equitable power and control to the decision-makers as well as to the staff at the receiving end. (shrink)

The issue of the emergence of formal axiomatic logical systems due to the emergence of logical antinomies in formal axiomatic systems, specifically the issue of developing formal logical axiomatics in the calculus of considerations was investigated in the considered research. At the same time, in order to determine the characteristics of the implementation of the logical-methodological principles and provisions of the deductive reasoning obviously, conceptual-logical foundations of the calculus of considerations was studied and the main propositions of the calculus of (...) considerations and the analysis of the initial logical operations on them were given in the study. The basic laws of logic and the expression of one logical act with another one were also explained in the research work by giving the concepst of proportional form and tautology in the calculus of considerations. At the same time, main properties and the procedure of setting of the formal deductive theory in the calculus of considerations were studied in the article. In order to provide an adequate characterization of the conceptual and methodological bases of the calculus of considerations in the research work, the basic logical laws of the calculus of considerations developed by the German mathematician and thinker P. Hilbert were also given. In addition, the main principles and methodological provisions of the deductive method were investigated, and the rules of deriving new conclusions from the axioms were interpreted. At the end of the reviewed article, the main principles and methods of the formal axiomatic mathematical systems built on a deductive basis, specifically the calculus of considerations, were studied and a logical-methodological analysis of the calculus of considerations was carried out on this basis. In this framework, the syntactic and semantic analysis of formalized language in formal axiomatic logical systems was carried out separately, the constituent parts of those systems, including the construction scheme, were given. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prudence: Classical Virtue, Postmodern PracticeDavid DepewPrudence: Classical Virtue, Postmodern Practice. Ed. Robert Hariman. University Park: Pennsylvania State University Press, 2003. Pp. xi + 337. $65.00, cloth."This volume," writes the editor, "is one contribution to the contemporary revival of interest in the concept of prudence" (ix). What interest? Notably, that of latter-day "virtue ethicists," whose discontents with the algorithmic decision-making procedures of modernism have given wings to a hope (...) that we (considered as members of some sort of imagined polis) will return to the context-sensitive "practical wisdom" of the ancients. (Prudentia is Cicero's Latin translation of the Greek phronesis, practical wisdom.)In theory, this line of reasoning was supposed to break the mold of contemporary politics. In practice, it has been captured by the political right. Virtue ethicists and civic republicans like Benjamin Barber have been outflanked by "virtuecrats" such as Bill Bennett (he of the gambling habit), the pompous columnist George Will, and Amitai Etzioni, the neo-corporatist founder of the Communitarian Party. It should be said right away, then, that few, if any, of the contributors to this collection are sympathetic to this sort of thinking. Admittedly, they share with virtuecrats a critique of rule-governed forms of decision-making, whether deontological or utilitarian, especially when these procedures masquerade as ways of "operationalizing" morality. Such calculi are indeed creatures of the institutional cultures of business firms and bureaucracies, which have increasingly affected law and politics. In addition, the authors of this volume are no less inclined than right-leaning virtuecrats to rake through intellectual history in order to come up with something relevant to the present and future. "There is a looking backward in order to see more clearly a mentality that is overlooked and undervalued in the present" (20). But they do so with a view to seeing what will come up when management of the topic of prudence is taken away from philosophers and reconnected (as it was from antiquity [End Page 167] until the nineteenth century) with the art of rhetoric, considered as an array of teachable discursive practices that are helpful in identifying and commending appropriate responses to contingent circumstances. The most salient features of the volume follow: a shift of the center of gravity from Aristotle to Cicero (ix), and a consideration of how, through rhetorical performances that involve the construction of a visible, embodied self, that strangest of creatures, a post-modern prudence, might be brought forth.I am pleased to report that changes of meaning in the collection's key term are discernible as we move from Cicero's prudentia to Machiavelli's prudenzia, and from the prudence that Edmund Burke invoked to justify American independence against his government's blind, imprudent rule-following to the quite different, and indeed incompatible, prudence that the Americans actually ended up with by the Jacksonian period, which is explored here by James Jasinski and Christine Oravec. Still, greater attention to the first great fracture in the concept, as phronesis moved across the Adriatic and became prudentia, would have made it clearer that, if there is to be a post-modern prudence, whether on terms set forth here by Maurice Charland or Hariman, or elsewhere by others, it cannot conceivably be seen as emerging out of a continuous root stock that managed to cross two seas intact, but as invented by doing repeated violence to a term, in part by providing it with a handsome pedigree that must be fitted up for the occasion.At this point let me register my only complaint. In spite of some useful remarks about Aristotle's notion of phronesis by Hariman and Charland, the volume lacks a systematic treatment of the Greek notion of practical wisdom (phronesis) even as a foil. This makes it difficult to see that the notion of phronesis was diversely interpreted by fourth-century Greeks; that Cicero's assimilation of phronesis to a Latin term already loaded with local associations—the subject of an informative essay by Robert Cape—might not preserve the Greek notion intact; that to the extent that Cicero does preserve aspects of Greek phronesis, his version is probably closer to Isocrates' rhetoric-friendly... (shrink)

The issue of the emergence of formal axiomatic logical systems due to the emergence of logical antinomies in formal axiomatic systems, specifically the issue of developing formal logical axiomatics in the calculus of considerations was investigated in the considered research. At the same time, in order to determine the characteristics of the implementation of the logical-methodological principles and provisions of the deductive reasoning obviously, conceptual-logical foundations of the calculus of considerations was studied and the main propositions of the calculus of (...) considerations and the analysis of the initial logical operations on them were given in the study. The basic laws of logic and the expression of one logical act with another one were also explained in the research work by giving the concepst of proportional form and tautology in the calculus of considerations. At the same time, main properties and the procedure of setting of the formal deductive theory in the calculus of considerations were studied in the article. In order to provide an adequate characterization of the conceptual and methodological bases of the calculus of considerations in the research work, the basic logical laws of the calculus of considerations developed by the German mathematician and thinker P. Hilbert were also given. In addition, the main principles and methodological provisions of the deductive method were investigated, and the rules of deriving new conclusions from the axioms were interpreted. At the end of the reviewed article, the main principles and methods of the formal axiomatic mathematical systems built on a deductive basis, specifically the calculus of considerations, were studied and a logical-methodological analysis of the calculus of considerations was carried out on this basis. In this framework, the syntactic and semantic analysis of formalized language in formal axiomatic logical systems was carried out separately, the constituent parts of those systems, including the construction scheme, were given. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ethics CommentaryMichael Robertson, Senior Research FellowThe French philosopher Michel Foucault once recounted the story of the English King, George III, being restrained by his guards at the direction of his physician Dr. Willis. King George, presumably deranged by a psychotic mania consequent upon porphyria, was incapable of self-rule and his power was usurped by the medical profession in an act of coercion tantamount to treason. This for Foucault was (...) a profound metaphor of psychiatric power.1The plight of Mdm. W yokes the two most emotive issues in psychiatry — involuntary treatment and the administration of ECT. Whilst only utilised at an extremity of clinical practice, both of these are the most misunderstood of actions performed by the psychiatric profession. Yet, in many circumstances, they are life-saving.In essence, we are confronted with a profoundly depressed woman, whose illness is seemingly resistant to first line treatment and poses a serious, credible risk of harm. Most psychiatrists would regard this as somewhat of a psychiatric emergency. We are informed that Mdm. W’s family has transcended any cultural taboos about mental illness and is engaged in her care, has an extensive lived experience of her severe mood disorder and accepts, indeed welcomes, the use of ECT to terminate a severe episode of depression. In the course of a psychotic depression, Mdm. W is suffering profound distress and presents a risk of either suicide or serious medical complications if the episode persists. Despite the minimal discomfort during the actual administration of ECT, Mdm. W’s distress will be compounded by the further restraint needed to prevent from her eating and drinking prior to anaesthesia.It is difficult to know what Mdm. W’s experience of this situation would [End Page 230] be. Through the prism of her disturbed mental state, with its derangements in thinking, cognitive functioning and apprehension of reality, she would likely experience the situation as one of fear or terror; she would likely interpret ECT and the enforced restriction of oral intake prior to the procedure as punitive — further evidence of her “sins”, reinforcing her delusional guilt and nihilism. Yet to speak to Mdm. W in circumstances of euthymia or normal mood, where such derangements no longer occur, might reveal an utterly different perspective on the situation. Like many people with episodic mental illnesses, Mdm. W might, when such a scenario was put to her, consent to future treatment with ECT without equivocation. Indeed, many patients with bipolar disorder formulate advance directives in regard to the specific management of their possible future episodes of illness.If the clinical and legal aspects of this situation are so clear, why is there a sense of a dilemma in the realm of clinical ethics? Beyond the emotive nature of the situation, we see a deeply distressed woman being provided potentially life-saving treatment, which is being denied to her by the profound impairments of insight and judgement consequent upon her illness.In Singapore, such detention and enforced treatment under the Mental Capacity Act (2010) applies to a person with a mental illness or disorder who lacks capacity to make decisions in their own best interests based upon impairment of mind or brain. This would be considered a “capacity” based mental health law. In other jurisdictions, the legal test and evidentiary justification for such care may be predicated upon risk of harm to self or others. In either setting, Mdm. W’s clinical situation provides adequate legal justification for such enforced care.The moral justification of such laws falls into two general categories — the “risk” argument and the “capacity” argument. In mental health legislation, the “harm principle”, as first elaborated in John Stuart Mill’s On Liberty,2 is usually defined in terms of the construct of “risk”. Risk is a term that has multiple meanings in different disciplinary contexts, although all approaches to “risk” attempt to apply knowledge to an area of uncertainty.3 The notion of “risk assessment” is usually considered as the process of categorising individuals by their perceived likelihood of causing serious harm to themselves or harm to others. In the insurance industry, actuarial assessment is a mathematical discipline aimed at computing a probability of adversity... (shrink)

PHOTO ID 121339257© Designer491| Dreamstime.com ABSTRACT When physicians use their clinical knowledge and skills to advance the well-being of their patients, there may be apparent conflict between patient autonomy and physician beneficence. We are skeptical that today’s medical ethics education adequately fosters future physicians’ commitment to beneficence, which is both rationally defensible and fundamentally consistent with patient autonomy. We use an ethical dilemma that was presented to a group of third-year medical students to examine how ethics education might be causing (...) them to give undue deference to autonomy, thereby undermining their commitment to beneficence. INTRODUCTION The right of patients to choose which treatments they prefer is rooted in today’s social mores and taught as a principle of medical ethics as respect for autonomy. Yet, when physicians use their clinical knowledge and skills to advance the well-being of their patients, there may be a conflict between patient autonomy and physician beneficence. We are skeptical that today’s medical ethics education adequately fosters a commitment to beneficence, which is both rationally defensible and fundamentally consistent with patient autonomy. I. An Ethical Dilemma The impetus for this paper arose when students who were completing their third clinical year discussed a real-life ethical dilemma. A middle-aged man developed a pulmonary hemorrhage while on blood thinners for a recently placed coronary stent. The bleeding was felt to be reversible, but the patient needed immediate intubation or he would die. The cardiologist was told that the patient previously expressed to other physicians that he never wanted to be intubated. However, the cardiologist made the decision to intubate the patient anyway, and the patient eventually recovered.[1] Students were asked if they believed that the cardiologist had acted ethically. Their overwhelming response was, “No, the patient should have been allowed to die.” We looked into how students applied ethical reasoning to conclude that this outcome was ethically preferred. To explore how the third-year clinical experience might have formed the students’ judgment, we presented the same case to students who were just beginning their third year. Their responses were essentially uniform in recommending intubation. While there is likely more than one reasonable view in this case, we agree with the physician and the younger medical students that intubation was the ethically appropriate decision and will present an argument for it. But first, we explain the reasoning behind the more advanced medical students’ decision to choose patient autonomy at the expense of beneficence. II. Medical Ethics Education and the Priority of Autonomy Beauchamp and Childress’s Principles of Biomedical Ethics, first published in 1979 and now in its 8th edition, is a significant part of the formal ethics education in medical school.[2] Students learn an ethical decision-making approach based on respect for four ethical principles: autonomy, beneficence, nonmaleficence, and justice. While Beauchamp and Childress officially afford no prima facie superiority to any principle, the importance of respect for patient autonomy has increased through the editions of their book. For example, early editions of their book opposed the legalization of physician-assisted death compared to recent editions that defended it.[3] As another example, Beauchamp and Childress make paternalism harder to justify by adding an autonomy-protecting condition to the list of conditions for acceptable paternalism.[4] Authority, they contend, need not conflict with autonomy—provided the authority is autonomously chosen.[5] “The main requirement,” they write, “is to respect a particular patient’s or subject’s autonomous choices, whatever they may be.[6] In the principlism of Beauchamp and Childress, autonomy now seems to have a kind of default priority.[7] However, the bioethics discourse has strong counternarratives, noting some movement to elevate the role of beneficence and to respect the input of stakeholders, including the family and the healthcare team. Ethics education achieves particular relevance in the third clinical year when students become embedded in the care of patients and learn from what has been called the informal curriculum. They observe how attending physicians approach day-to-day ethical problems at the patient’s bedside. In this context, students observe the importance of informed consent for serious treatments or invasive procedures, a practice that highlights the principle of patient autonomy. In both the formal and informal curriculum, medical students observe how, in the words of Paul Wolpe, “patient autonomy has become the central and most powerful principle in ethical decision-making in American medicine.”[8] In short, students appear to learn a deference for patient autonomy. This curricular shift in favor of autonomy coincides with legal developments that protect patients’ rights and decision-making with respect to their healthcare choices. The priority of autonomy in medicine benefits patients by reflecting their choices and, in some cases, their fundamental liberty. III. The Practice of Medicine and the Commitment to Beneficence There are many critiques of the dominant place that autonomy has in biomedical ethics,[9] especially considering that autonomy seems to be biased toward individualistic, Western, and somewhat American culture-driven values.[10] In addition, many bioethical dilemmas are cast as a conflict between autonomy and beneficence. Our point is that medical students bring to their study of medicine a commitment to beneficence that seems to be suppressed by practical ethics education. We think this commitment is rationally defensible and should be nurtured. It is striking that young medical students have a pre-reflective commitment to beneficence at all. For, as we mentioned, it is not just medicine but Western culture generally that prioritizes autonomy in settling ethical dilemmas. In wanting to act for the good of others (rather than simply agreeing to what others want), physicians are already swimming somewhat against the cultural tide.[11] However, doing so makes sense, given the nature of medicine and the profession of healing. When prospective medical students are asked why they wish to become physicians, the usual answer is some variation on caring for the sick and preventing disease. It is unlikely that a reason to become a physician is to respect a patient’s autonomy. It would be easy to dismiss medical students’ commitment to beneficence as a mere intuition and contrary to a more reasoned and deliberative approach. Beauchamp and Childress seem to minimize the value of physician intuition, stating that justifications for certain procedures are “…supported by good reasons. They need not rest merely in intuition or feeling.”[12] Henry Richardson writes that “situational or perceptive intuition…leaves the reasons for decision unarticulated.”[13] We think this is a crude and rather thin way of understanding intuition. Some bioethicists have defended intuition as essential to the practice of medicine and not something opposed to reason.[14] In the case we describe, we believe the ethical justifications s for the patient’s intubation are fundamentally sound: the patient did not have a “do not intubate” order written in the chart, the emergency intubation had not been foreseen, so the patient did not have the opportunity to consent to or reject intubation; the patient had consented to the treatment for his cardiac disease so his consent for intubation could have been assumed;[15] and the consequences of respecting his autonomy did not justify allowing him to die.[16] While it is possible to have more than one reasonable view on this case, we think the case for beneficence is strong and certainly should not be dismissed out of hand. We do not deny that if a patient makes a clearly documented, well-informed decision to forgo intubation that this decision ought to be respected by the physician (even if the physician disagrees with the patient’s decision). But, in this situation, as in many others in the practice of medicine, the patient’s real wishes and preferences are not well-articulated in advance. There are many cases where a physician acts based on what she believes the patient, or the surrogate, would want, sometimes in situations that do not allow much time for reflection. An example might be resuscitation of a newborn at the borderline of viability. In their ethics education, beneficence would mean acting first to save a life. If the patient or surrogate makes an informed decision to the contrary, a beneficent physician respects that autonomous decision. In the case presented, the patient expressed gratitude to the cardiologist when extubated. But what if he had expressed anger at the physician for violating his autonomy? There are those who could argue that not only was intubation ethically wrong but that the cardiologist put himself in legal jeopardy by his actions (especially if there had been a written refusal applicable to the specific situation). In the example we use, we point out that the cardiologist may not have escaped a lawsuit if the patient had died without intubation. His family, when hearing the circumstances, may have sued for failure to act and dereliction of the cardiologist’s duty to save him. Beyond a potential legal challenge for either action or inaction, there is an overriding ethical question the cardiologist had to address: what course would be most satisfying to his conscience? Would he rather allow a patient to die for fear of recrimination, or act to save his life, regardless of the personal consequences? In the absence of real knowledge about the patient’s considered wishes, it is most reasonable to err on the side of promoting patient well-being. A physician’s commitment to beneficence is not necessarily a way of undermining a patient’s autonomy. In acting for the patient's good, physicians are also acting on what it is reasonable to believe a patient (or most patients, perhaps) would want, which is obviously connected to what a patient does want. Pellegrino and Thomasma argue that beneficence includes respect for a patient’s autonomy since “the best interests of the patient are intimately linked with their preferences.”[17] Instead of conceptualizing ethical dilemmas in medicine as conflicts between autonomy and beneficence, it is possible that medical schools could teach students that truly practicing beneficence is a way of valuing patient autonomy, especially when the patient’s wishes are not specific to the situation and are not clearly expressed. CONCLUSION It is important for students and practicing physicians to understand the principle of respect for patient autonomy in a pluralistic society that demands personal self-determination. However, the role of the physician as a beneficent healer should not be diminished by this respect for autonomy. Respecting a patient’s autonomy is grounded in and manifested by physician beneficence.[18] That is, seeking what is good for the patient can only be good if it respects their personhood and dignity. We propose that a commitment to beneficence, incipient in young medical students, should be developed over time with their other clinical reasoning skills. Such a commitment need not be sacrificed on the altar of patient autonomy. Beneficence needs greater relative moral weight with students as they proceed in their ethics education. - [1] S. Jauhar, “When Doctors Need to Lie,” New York Times, February 22, 2014, https://www.nytimes.com/2014/02/23/opinion/sunday/when-doctors-need-to-lie.html. [2] T. L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 8th ed. (New York, NY: Oxford University Press, 2019). [3] Louise A. Mitchell, “Major Changes in Principles of Biomedical Ethics,” The National Catholic Bioethics Quarterly 14, no. 3 (2014): 459–75, https://doi.org/10.5840/ncbq20141438. [4] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 8th ed. (New York, NY: Oxford University Press, 2019), 238. [5] Beauchamp and Childress, 103. [6] Beauchamp and Childress, p. 108. [7] For other accounts that prioritize autonomy, see e.g. Allen E. Buchanan and Dan W. Brock, Deciding for Others: The Ethics of Surrogate Decision Making (Cambridge University Press, 1989), 38–39; R Gillon, “Ethics Needs Principles—Four Can Encompass the Rest—and Respect for Autonomy Should Be ‘First among Equals,’” Journal of Medical Ethics 29, no. 5 (October 2003): 307–12, https://doi.org/10.1136/jme.29.5.307. For examples of critiques of these accounts, see footnote 9. [8] P. R. Wolpe, “The Triumph of Autonomy in American Bioethics: A Sociological View,” in Bioethics and Society: Constructing the Ethical Enterprise, p. 43. [9] V. A. Entwistle et al., “Supporting Patient Autonomy: The Importance of Clinician-Patient Relationships,” Journal of General Internal Medicine 25, no. 7 (July 2010): 741–45; C. Foster, Choosing Life, Choosing Death: The Tyranny of Autonomy in Medical Ethics and Law, 1st ed. (Oxford ; Hart Publishing, 2009); O. O’Neill, Autonomy and Trust in Bioethics, The Gifford Lectures, University of Edinburgh 2001 (Cambridge, UK: Cambridge University Press, 2002). [10] P. Marshall and B. Koenig, “Accounting for Culture in a Globalized Bioethics,” The Journal of Law, Medicine & Ethics: A Journal of the American Society of Law, Medicine & Ethics 32, no. 2 (2004): 252–66; R. Fan, “Self-Determination vs. Family-Determination: Two Incommensurable Principles of Autonomy,” Bioethics 11, no. 3–4 (1997): 309–22. [11] Arguments stressing the importance of beneficence, as ours does here, certainly approach paternalistic arguments. We set aside the complex issue of paternalism for purposes of this paper and simply note that the principle of beneficence as such does not say anything specifically about acting against the patient’s will. In the case study that focuses this paper, we do not believe the patient’s will or wishes were clearly indicated. [12] Beauchamp and Childress, Principles of Biomedical Ethics, p. 20, see note 2 above. [13] H. S. Richardson, “Specifying, Balancing, and Interpreting Bioethical Principles,” The Journal of Medicine and Philosophy: A Forum for Bioethics and Philosophy of Medicine 25, no. 3 (January 1, 2000): 285–307, p. 287. [14] H. D. Braude, Intuition in Medicine a Philosophical Defense of Clinical Reasoning (Chicago ; University of Chicago Press, 2012). [15] R. Kukla, “Conscientious Autonomy: Displacing Decisions in Health Care,” The Hastings Center Report 35, no. 2 (2005): 34–44. [16] M. Schermer, The Different Faces of Autonomy: Patient Autonomy in Ethical Theory and Hospital Practice, vol. 13, Library of Ethics and Applied Philosophy (Dordrecht: Springer Netherlands, 2002). [17] E. D. Pellegrino and D. C. Thomasma, For the Patient’s Good - the Restoration of Beneficence in Health Care (New York, NY: Oxford University Press, 1988), p. 29. [18] Pellegrino and Thomasma, For the Patient’s Good. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Prudence: Classical Virtue, Postmodern PracticeDavid DepewPrudence: Classical Virtue, Postmodern Practice. Ed. Robert Hariman. University Park: Pennsylvania State University Press, 2003. Pp. xi + 337. $65.00, cloth."This volume," writes the editor, "is one contribution to the contemporary revival of interest in the concept of prudence" (ix). What interest? Notably, that of latter-day "virtue ethicists," whose discontents with the algorithmic decision-making procedures of modernism have given wings to a hope (...) that we (considered as members of some sort of imagined polis) will return to the context-sensitive "practical wisdom" of the ancients. (Prudentia is Cicero's Latin translation of the Greek phronesis, practical wisdom.)In theory, this line of reasoning was supposed to break the mold of contemporary politics. In practice, it has been captured by the political right. Virtue ethicists and civic republicans like Benjamin Barber have been outflanked by "virtuecrats" such as Bill Bennett (he of the gambling habit), the pompous columnist George Will, and Amitai Etzioni, the neo-corporatist founder of the Communitarian Party. It should be said right away, then, that few, if any, of the contributors to this collection are sympathetic to this sort of thinking. Admittedly, they share with virtuecrats a critique of rule-governed forms of decision-making, whether deontological or utilitarian, especially when these procedures masquerade as ways of "operationalizing" morality. Such calculi are indeed creatures of the institutional cultures of business firms and bureaucracies, which have increasingly affected law and politics. In addition, the authors of this volume are no less inclined than right-leaning virtuecrats to rake through intellectual history in order to come up with something relevant to the present and future. "There is a looking backward in order to see more clearly a mentality that is overlooked and undervalued in the present" (20). But they do so with a view to seeing what will come up when management of the topic of prudence is taken away from philosophers and reconnected (as it was from antiquity [End Page 167] until the nineteenth century) with the art of rhetoric, considered as an array of teachable discursive practices that are helpful in identifying and commending appropriate responses to contingent circumstances. The most salient features of the volume follow: a shift of the center of gravity from Aristotle to Cicero (ix), and a consideration of how, through rhetorical performances that involve the construction of a visible, embodied self, that strangest of creatures, a post-modern prudence, might be brought forth.I am pleased to report that changes of meaning in the collection's key term are discernible as we move from Cicero's prudentia to Machiavelli's prudenzia, and from the prudence that Edmund Burke invoked to justify American independence against his government's blind, imprudent rule-following to the quite different, and indeed incompatible, prudence that the Americans actually ended up with by the Jacksonian period, which is explored here by James Jasinski and Christine Oravec. Still, greater attention to the first great fracture in the concept, as phronesis moved across the Adriatic and became prudentia, would have made it clearer that, if there is to be a post-modern prudence, whether on terms set forth here by Maurice Charland or Hariman, or elsewhere by others, it cannot conceivably be seen as emerging out of a continuous root stock that managed to cross two seas intact, but as invented by doing repeated violence to a term, in part by providing it with a handsome pedigree that must be fitted up for the occasion.At this point let me register my only complaint. In spite of some useful remarks about Aristotle's notion of phronesis by Hariman and Charland, the volume lacks a systematic treatment of the Greek notion of practical wisdom (phronesis) even as a foil. This makes it difficult to see that the notion of phronesis was diversely interpreted by fourth-century Greeks; that Cicero's assimilation of phronesis to a Latin term already loaded with local associations—the subject of an informative essay by Robert Cape—might not preserve the Greek notion intact; that to the extent that Cicero does preserve aspects of Greek phronesis, his version is probably closer to Isocrates' rhetoric-friendly... (shrink)