Taking together place, time and manner, it would be possible to describe the encounter as comprising at least six modes: fragility, temporality, activity, integrity, causality and disparity. The author then explores what is meant by a rationality, and discusses the encounter between legal rationalities in Africa. The suggestion is that the law exists in Africa only in the tension between old and new, imposition and negotiation; the question at issue is the possibility of thinking ‘between-two-realities’, the ‘space-between’.

This paper argues that Habermas's conception of the rationality of moral and legal discussions has import for argumentation theorists interested in the rationality of public deliberations in politics and law. I begin with a survey of Haber mas's discourse theory and his criteria of rationality for moral and legal discourse. I then explain why, in his view, the forms of rational discourse in morality and law complement each other. My aim is to show how Habermas's account of (...) this complementary relationship opens up fruitful perspectives for argumentation theory. Specifically, his thought can stimulate research regarding, on the one hand, the ways in which legal procedures provide for presumptively rational resolutions of moral disputes and, on the other hand, the applicability of ideal argumentation-theoretic models to the legal field. I conclude with a proposal for integrating Habermas's ideas in a research program for legal argumentation. (shrink)

In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples (...) from legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand. (shrink)

This article explores the traditional basis of modern human rights doctrines and exposes some of the systemic shortcomings. It then posits that a number of these problems are advanced via integrating some developments in the philosophy of science and substantive scientific research into legal philosophy. This article argues that supervening holism grounded in quantum mechanics provides an alternative basis to human rights by positing an ontological construct that is congruous with many of the wisdom traditions practiced around the world. (...) Such a foundation exposes a rational imperative for universal human rights and hence appeals to legal pragmatists. (shrink)

This paper connects to Jon Bing’s great vision of an integrated national legal information system. The intention of this paper is to variegate Bing’s vision of an integrated information system by shifting the focus to the lay users, thus to those, who are subject to the law. The modified vision is an integrated information system that supports intelligible access to law for the citizens. This presupposes however an unambiguous and transparent legal system. Accordingly, it is also stressed that (...) intelligent legal knowledge engineering has high potential to increase precision and rationality in law, and hence safeguard the predictability of law and legal certainty. The central hypothesis is that putting the person who is subject to the law at the centre provides more rational reason to aim for the greatest possible precision of law by exploiting the means and technologies of our time than to uphold strategic vagueness. On this basis, the paper proposes the development of a basic set of controllable and justiciable basic legal drafting standards on EU and on national level, and promotes a transparency by design approach for legal knowledge engineering in order to enhance precision, integrity, comprehensibility and accessibility of law. Similarly to Jon Bing’s vision, this modified vision of an integrated legal information systems is, most probably, also likely to remain unfulfilled. However, what would science be without visions and (science) fictions? (shrink)

У статті досліджуються конститутивні пункти середньовічного міста, елементи онтологічної сутності цього феномену. Відправною сутністю середньовічного міста є його трансцендентна спрямованість, яка затверджує уявлені образи порядку, що втілюються в раціонально-правову цілісність та спадковість міського життя. Процес смислоутворення середньовічного міста має своє підґрунтя в біблійних образах, богословських екзегезах та архетипних діях - утворення завдяки колективній клятві асоціації рівних, що скеровують своє співжиття до досягнення релігійного ідеалу. Цей формоутворюючий процес мав задачу позбавитись status naturae і через громадське служіння, бездоганне виконання законів і доброчесність (...) наблизитися до status gratiae - земного стану духовної свободи та вдосконалення. Досвід формування міста в середні віки відроджує ідею античного поліса, його ключову відзнаку - раціонально-правову впорядкованість, що виявляється в евдомонічній формі життя. (shrink)

Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the presence of incommensurable values “is (...) more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision. This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving. (shrink)

Decision theory seems to offer a very attractive normative framework for individual and social choice under uncertainty. The decisionmaker should think of her choice situation, at any given moment, in terms of a set of possible outcomes, that is, specifications of the possible consequences of choice, described in light of the decisionmaker's goals; a set of possible actions; and a "state set" consisting of possible prior "states of the world." It is this framework for choice which provides the foundation for (...) expected utility theory, as demonstrated in the work of Leonard Savage. Problems arise, however, when the decisionmaker is boundedly rational: when the mental process of thinking about outcomes, actions, and states is itself expensive and time consuming. In the case of the unboundedly rational decisionmaker, decision theory enjoins her to employ maximally specific outcomes; to consider all possible actions; and to use a set of mutually exclusive and collective exhaustive states, each of which is sufficiently finely specified so that each action, together with each state, yields one and only one maximally specific outcome. In the case of the boundedly rational decisionmaker, this procedure is either infeasible or, if feasible, irrational. This paper presents the problem of bounded rationality. It surveys possible solutions, none of which are found to be attractive. And it concludes by discussing the difficulties that the problem of bounded rationality poses for the welfarist program for legal scholarship presented by Louis Kaplow and Steven Shavell in their book, Fairness versus Welfare. (shrink)

Bayesian models of legal arguments generally aim to produce a single integrated model, combining each of the legal arguments under consideration. This combined approach implicitly assumes that variables and their relationships can be represented without any contradiction or misalignment, and in a way that makes sense with respect to the competing argument narratives. This paper describes a novel approach to compare and ‘average’ Bayesian models of legal arguments that have been built independently and with no attempt to (...) make them consistent in terms of variables, causal assumptions or parameterization. The approach involves assessing whether competing models of legal arguments are explained or predict facts uncovered before or during the trial process. Those models that are more heavily disconfirmed by the facts are given lower weight, as model plausibility measures, in the Bayesian model comparison and averaging framework adopted. In this way a plurality of arguments is allowed yet a single judgement based on all arguments is possible and rational. (shrink)

The first reference on rationality that integrates accounts from psychology and philosophy, covering descriptive and normative theories from both disciplines. Both analytic philosophy and cognitive psychology have made dramatic advances in understanding rationality, but there has been little interaction between the disciplines. This volume offers the first integrated overview of the state of the art in the psychology and philosophy of rationality. Written by leading experts from both disciplines, The Handbook of Rationality covers the main normative and descriptive theories of (...) rationality—how people ought to think, how they actually think, and why we often deviate from what we can call rational. It also offers insights from other fields such as artificial intelligence, economics, the social sciences, and cognitive neuroscience. The Handbook proposes a novel classification system for researchers in human rationality, and it creates new connections between rationality research in philosophy, psychology, and other disciplines. Following the basic distinction between theoretical and practical rationality, the book first considers the theoretical side, including normative and descriptive theories of logical, probabilistic, causal, and defeasible reasoning. It then turns to the practical side, discussing topics such as decision making, bounded rationality, game theory, deontic and legal reasoning, and the relation between rationality and morality. Finally, it covers topics that arise in both theoretical and practical rationality, including visual and spatial thinking, scientific rationality, how children learn to reason rationally, and the connection between intelligence and rationality. (shrink)

One of the most detailed early modern discussions of the morality of esteem can be found in the work of the reformed jurist and historian Marquard Freher (1565–1614). Since the question of how much esteem others deserve is fraught with a high degree of uncertainty, Freher relied on the work of other legal humanists, who discussed questions of esteem from the perspective of arguments from the presumption of goodness. The humanist approach to the presumption of goodness integrated considerations about (...) presumed non-delinquency with considerations concerning natural needs, natural rights and natural duties grounded in natural rational capacities common to all (grown-up, healthy) human beings. It advised us to fulfill natural duties that derive from the natural need of being held in good esteem by others, and to develop socially valuable attitudes such as trust and positive emotions toward others. At the same time, this approach was responsive to considerations of prudence, both in grounding the presumption of goodness in considerations concerning causal powers and in balancing the presumption of goodness against a variety of presumptions of badness. Freher applied this understanding of the presumption of goodness to political practice in his role as an advisor to the Palatinate. (shrink)

Resource allocation decisions are often made on the basis of clinical and cost effectiveness at the expense of ethical inquiry into what is acceptable. This paper proposes that a more compassionate model of resource allocation would be achieved through integrating ethical awareness with clinical, financial and legal input. Where a publicly-funded healthcare system is involved, it is suggested that having an agency that focuses solely on cost-effectiveness leaving medical, legal and ethical considerations to others would help depoliticise rationing (...) decisions and command greater public acceptance. (shrink)

This book traces rabbinic thought on the near-universal phenomenon of legal circumventions, finding licit ways to achieve otherwise illegal outcomes. Rabbinic literature does not fully reject or accept loopholing, but instead determine acceptability based on whether their outcome and their process maintain the values and the integrity of the law.

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might (...) stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in. (shrink)

National Artificial Intelligence (AI) strategies articulate imaginaries of the integration of AI into society and envision the governing of AI research, development and applications accordingly. To integrate these central aspects of national AI strategies under one coherent perspective, this paper presented an analysis of Germany’s strategy ‘AI made in Germany’ through the conceptual lens of ordoliberal political rationality. The first part of the paper analyses how the guiding vision of a human-centric AI not only adheres to ethical and legal (...) principles consistent with Germany’s liberal democratic constitutional system but also addresses the risks and promises inherent to the ordoliberal problematization of freedom. Second, it is scrutinized how the strategy cultivates the fear of not achieving technological sovereignty in the AI sector. Thereby, it frames the global AI race as a race of competing (national) approaches to governing AI and articulates an ordoliberal approach to governing AI (the ‘third way’), according to which government has to operate between the twin dangers of governing too much and not governing enough. Third, the paper analyses how this ordoliberal proportionality of governing structures Germany’s Science Technology & Innovation Policy. It is shown that the corresponding risk-based approach of regulating AI constitutes a security apparatus as it produces an assessment of fears: weighting the fear of the failure to innovate with the fear of the ramifications of innovation. Finally, two lines of critical engagement based on this analysis are conducted. (shrink)

The debate between Jurgen Habermas and Charles Taylor is reflective of the enduring conflict between liberal philosophy with its emphasis upon freedom, equality, and legal rights, and Aristotelianism with its accent upon the cultivation of virtue, personal responsibility and shared notions of the Good. Though grounded in opposite ends of the philosophical spectrum, both men remain critical of the burgeoning effects of instrumental rationality and the social atomization and anomie it continues to generate; both understand the extent to which (...) the self is a social construct and the role of interpersonal intersubjectivity in the development of their individual and collective identities; both argue for the centrality of certain goods in maintaining a minimal degree of social cohesion; and both affirm that the crucial feature of human life is communication and its dialogical character. ;To overcome the adverse manifestations of our positivistic ethos with its over-reliance upon purposive-instrumental reason, each has responded with a countervailing notion of rationality---"phronesis" or Aristotelian practical reason for Taylor and "communicative reason" for Habermas. Each's choice of reason has led to profound differences in their respective notions of the self as well as fundamental incongruities in their moral and political philosophies. In the interest of preserving the autonomy and integrity of the individual while yet affirming universal justice, Habermas argues for the formalism of a "proceduralistic" ethics. Taylor, on the other hand, advocates a "substantialist" one, a communal ethics that arises from out of people's deepest moral intuitions; an ethics bound up with historical values and ideals that stresses the cultivation of virtue and shared notions of the common good. ;I argue that although Habermas's "communicative action" with its focus upon intersubjective communication helps to bridge the competing philosophies of communitarianism and classical liberalism, a basic incommensurability still persists. However, rather than being mutually exclusive, there needs to be a creative, dialectical tension maintained between them whereby each continues to inform and influence the other. In this way, a postmodern ethics rooted in dialogue and communication can be constructed which maintains people's integrity and autonomy while similarly addressing their multiple needs and concerns, but also an ethics grounded in one's deepest moral intuitions which remains sensitive to the concrete, historical, and particularistic distinctions which differentiate their identities. (shrink)

Bad philosophy is responsible for the climate and nature crises, and other global problems too that threaten our future. That sounds mad, but it is true. A philosophy of science, or of theatre or life is a view about what are, or ought to be, the aims and methods of science, theatre or life. It is in this entirely legitimate sense of “philosophy” that bad philosophy is responsible for the crises we face. First, and in a blatantly obvious way, those (...) institutions, organizations, corporations, businesses, endeavours, and activities of humanity that cause the crises and global problems we face, do so because of the aims they pursue (profit perhaps, or power, or heat and light for homes), and the methods adopted in pursuit of those aims – the philosophy in other words, built into the institution, organization, business, human activities, or whatever it may be. It is the philosophy of these institutions, organizations and activities that we need to change to put a stop to, or at least lessen the severity of, the crises we face, the global problems that confront us, above all the climate and nature crises. One institution has an especially crucial role in this respect: our universities. They are dominated in a multitude of ways by a particularly disastrous philosophy, a philosophy of inquiry which may be called knowledge-inquiry. This holds that the basic aim of the university is to acquire and apply knowledge. First, knowledge is to be acquired; once acquired, it can be applied to help solve social problems. But this philosophy of knowledge-inquiry is an intellectual disaster. As a result, universities are, in devastating and almost entirely unrecognized ways, humanitarian disasters too. Judged from the standpoint of helping to promote human welfare, the university shaped by the philosophy of knowledge-inquiry violates THREE of the four most elementary rules of rational problem solving conceivable in a wholesale, structural fashion, and it is this gross, wholesale, structural irrationality of the university, unnoticed by all but a few scientists and scholars, that is in part responsible for the creation of our grave global problems, and our current incapacity to learn how to solve them. The pursuit of knowledge, conducted in universities, within the framework of knowledge-inquiry over the decades and centuries, has produced much of great benefit to humanity. It has made the modern world possible. It has led to modern power production, modern industry and armaments, modern agriculture, modern hygiene and medicine, modern travel and communications, and the internet. But these very successes have also created many of our most serious current global problems: the climate crisis; the destruction of natural habitats, the catastrophic loss of wild life, and impending mass extinction of species (the nature crisis); the lethal character of modern war; the impact on the natural world of the rapid growth of the human population; the menace posed by nuclear weapons; pollution of earth, sea and air; threats to democracy caused in part by the internet and social media. All these grave global problems have been made possible by modern science and technology, pursued largely in universities within the framework of knowledge-inquiry. Nevertheless, it is not science and technology as such that are the problem, but science pursued in a way that is dissociated from a more fundamental task of the university to help humanity resolve conflicts and problems of living in increasingly cooperatively rational ways, so that progress may be made to a better world. Science and technology, pursued within the framework of knowledge-inquiry, create for some of us the power to act, but not the power to act wisely – not the power to learn how to resolve conflicts and problems of living in increasingly cooperatively rational ways. For that, we need our institutions of learning, above all our universities, to take as their primary task to help humanity learn how to do it. In order to do that, the philosophy of inquiry put into practice by universities needs to be dramatically transformed. We urgently need to bring about a revolution in the overall aims and methods of academic inquiry – a revolution in the philosophy of the university, all around the world, wherever possible, so that the basic aim becomes to seek and promote wisdom, construed to be the capacity, active endeavour, and perhaps desire, to realize what is of value in life, for oneself and others, wisdom in this sense including knowledge, understanding and technological know-how, but much else besides, methods being dramatically modified too so as to help achieve the new academic aim. The basic task of the university would be, not to solve problems of knowledge, but rather to help people in the social world beyond the university to resolve conflicts and problems of living so that what is of value in life may be realized by everyone, insofar as that is possible. The pursuit of knowledge would be vital, but not intellectually fundamental. The intellectual and institutional revolution we so urgently need in our universities would affect every discipline and aspect of the university; it would dramatically affect both research and education, and the whole way the university is related to the rest of the social world. The revolution, from knowledge-inquiry to wisdom-inquiry would dramatically enhance the intellectual integrity and rationality of natural science, social inquiry, the humanities and technology, the character of these disciplines and the relationships they have with one another. University education throughout the university would be dramatically improved. And academic inquiry as a whole would do what, on the whole, it fails to do at present: it would help humanity resolve conflicts and problems of living in increasingly cooperatively rational and, as a result, increasingly successful ways, progress at last being made to a genuinely good, civilized world – a world in which there is peace, justice, liberal democracy, individual freedom, education, reasonable equality, sustainable prosperity and worthwhile opportunities in life, all of these for everyone, insofar as this is possible. Why, it may be asked, has academic philosophy not noticed that we urgently need to transform the current bad philosophy of inquiry of knowledge-inquiry into the far more intellectually rigorous and humanly valuable philosophy of wisdom-inquiry, so that we can begin to do what so far we have failed to do so lamentably: learn how to avoid impending disasters, and even make progress to a better world, something that seems at present almost unthinkable given the horrors of war, poverty, political enslavement of the 20th century, and the horrors of this century so far too? The answer is that academic philosophy is in a particularly pitiful state, as philosophers themselves, are just beginning to realize and lament. That is why academic philosophers are blind to the intellectual and humanitarian disaster of the bad philosophy that dominates universities today, and inconceivable to them to them that they might have, as a disciplinary task, to ensure academic inquiry implements a good philosophy of inquiry, and advocate and argue for change if it does not. Once upon a time, in Europe at least, philosophy was an intellectual power in the world. In the 17th century it created modern science which massively increased and improved our knowledge and understanding of the world, which in turn led to the Enlightenment, the industrial revolution, and the modern world. Philosophy was once so intellectually powerful and influential that it changed the course of history. But philosophy also made in the past three disastrous intellectual blunders: the post-Cartesian blunder, the post-Newtonian blunder, and the Enlightenment blunder. Never acknowledged and corrected by subsequent philosophy right down to the present, these unrecognized intellectual blunders rendered academic philosophy the esoteric, pathetic, and powerless discipline it is today, so that throughout the last century and, so far, throughout this one, academic philosophy has remained blind to the intellectual disaster of knowledge-inquiry, and thus failed entirely to take up its proper disciplinary task of warning fellow academics of the structural irrationality of the philosophy that prevails in the university, and of proposing what steps need to be taken to put things right. Instead of performing such an urgently needed philosophical task, so-called analytic philosophy was reduced to analysing the meaning of words. Since then, there has been hardly any discernible improvement, even if analysis of concepts no longer dominates the scene. Bad academic philosophy is indeed responsible for intellectual and humanitarian failures of the university. What the three past intellectual blunders of philosophy are, why their persistence so dramatically reduces academic philosophy to a triviality, and why, furthermore, this results in the failure of scientists and scholars to see what is so blatantly bad about the philosophy prevailing in universities around the world – the failure to see what so urgently needs to be done to put right what has been wrong for so long: all this is made clear in this book. A new kind of philosophy emerges during the course of the argument, critical fundamentalism, which has as its task to keep alive imaginative and critical – that is rational – thinking about our fundamental problem: How can our human world, the world we experience and live in – the world of living things, people, consciousness, free will, meaning and value – how can all of this exist and best flourish embedded as it is in the physical universe? That problem encompasses all others of life, science and thought. Critical fundamentalism tries to improve answers to aspects of this problem; but it also seeks to encourage everyone to think about the problem, from time to time, and think about how it interacts, in both directions, with more urgent particular and specialized problems of life and thought. Critical fundamentalism sets out to help improve bad philosophy wherever it is to be found: in social, political, commercial, legal, financial, and international life; and especially in academia, in institutions of learning, so that they become devoted to enhancing the capacity of people to learn how to achieve what is of genuine value in this brief life of a few decades if we are fortunate. Critical fundamentalism does everything it can to bring about the revolution in our universities we so urgently need. If taken up by mainstream philosophy, it might really have an impact, and begin to transform universities for the better, in both intellectual and humanitarian terms, and thus, enable humanity to learn how, after the grim failures and horrors of the last century and this one, to make progress to a better world. -/- . (shrink)

Most of what has been written on the ECSC/ EEC/ EC/ EU, has not been done by international relations (IR) theorists, but by comparativists, sociologists, historians, anthropologists, legal scholars, and many others. These writings are in general classified as intergovernmentalist, federalist, and supranationalist (functionalist and neo- functionalist) in most accounts of the theoretical perspectives on the EU (Webb 1983, Rosamond 2000). Wiener and Diez 2004 add a rational choice institutional category, as well, as they think that the policy (...) analysis within the polity developed into an autonomous brand of literature. It is only Andrew Hurrell in his chapter in Fawcett and Hurrell 1995, who makes an attempt to present the EU, as a regional integration, from the point of view of diverse IR approaches. Drawing on his classification scheme, I conduct an inquiry of the IR theories about European unification from the point of view of whether they allow for the iteration of the European experience in other parts of the world or not. The basic conclusion is that almost all IR work on Europe falls in the inter- governmentalist category, which tends to conceptualize the European Union as representing an n of 1. (Inter- governmentalism is the choice of realism and neo-realism, English School, and neoliberal institutionalism.) Within the liberal IR paradigm, there is a tension between law-focused and security-focused approaches, on the one hand, and economic approaches, on the other. The first believe in the possibility of multiple integrations, while the latter does not think that they are desirable. Critical theories are also hindered by divergent normative commitments, though the class-based theorizing is very clear about pursuing the social control of markets. (shrink)

Neo-liberalism often reduces pluralism to a social fact based on the collapse of the big ideals that once claimed to stand in for the ideal of humanity. Tolerance of inevitable value diversity is all that can be offered by the rationalized modern western state. This understanding of pluralism is completely inadequate in the post colony. Ernst Cassirer offers a philosophical understanding of symbolic plurality that allows us to respect divergent symbolic forms, including myth and religion. This understanding of pluralism opens (...) the space for respect for the customary law and the great indigenous ideals such as uBuntu which has often been denigrated as mythical and thus outdated or, worse yet, not law at all. This denigration is inseparable from colonial violence, and demands a process of transculturation as integral to this struggle to transform the new South Africa into a society that lives up to the Constitution’s call for the respect of all of its citizens. This respect can only be done if there are serious economic reforms and a challenge to the hegemonic neo-liberal capitalism. (shrink)

Most of what has been written on the ECSC/ EEC/ EC/ EU, has not been done by international relations theorists, but by comparativists, sociologists, historians, anthropologists, legal scholars, and many others. These writings are in general classified as intergovernmentalist, federalist, and supranationalist in most accounts of the theoretical perspectives on the EU . Wiener and Diez 2004 add a rational choice institutional category, as well, as they think that the policy analysis within the polity developed into an autonomous (...) brand of literature. It is only Andrew Hurrell in his chapter in Fawcett and Hurrell 1995, who makes an attempt to present the EU, as a regional integration, from the point of view of diverse IR approaches. Drawing on his classification scheme, I conduct an inquiry of the IR theories about European unification from the point of view of whether they allow for the iteration of the European experience in other parts of the world or not. The basic conclusion is that almost all IR work on Europe falls in the inter- governmentalist category, which tends to conceptualize the European Union as representing an n of 1. Within the liberal IR paradigm, there is a tension between law-focused and security-focused approaches, on the one hand, and economic approaches, on the other. The first believe in the possibility of multiple integrations, while the latter does not think that they are desirable. Critical theories are also hindered by divergent normative commitments, though the class-based theorizing is very clear about pursuing the social control of markets. (shrink)

The power to integrate of the European Union (EU) is after all interlinked to the ability of approximating the different law systems of the member states. On the other side the EU-Treaty stipulates the respect of the national identities of even those states as a core principle (Art. 6 para. 3). Thus a rational manner of law approximation is needed which is sensitive to the law-cultural particularities of the member states. The article tries to develop a coherence-based approach of (...) legal reasoning, which gets the sensitivity looked for by applying the method of comparative law. While differentiating between a horizontal (EU) and a vertical (member states) coherence the method of comparative law can identify meeting points of EU- and member state law. This will, eventually, be demonstrated at the decision of the European Court of Justice (ECJ) in the case of Simone Leitner vs. TUI Germany. (shrink)

This paper examines Guillermo Lariguet’s paper ‘Analytical Legal Philosophy Reloaded,’ offering two interpretations of the ‘reloading’ project. The paper argues that a naturalistic reading of the project is unmotivated and that a more promising way of interpreting Lariguet’s proposal is in terms of a rather ambitious methodological agenda, which is analogous to the broadly encompassing methodological criticism envisioned by Jürgen Habermas in some of his work, which centers on communicative action. This ‘reasonableness’ proposal, as I shall call it, is (...) a plea to invigorate and enrich not just legal philosophy, but philosophical discourse in general, and shows that the reloading of legal philosophy cannot be understood as a project that originates only from within legal philosophy.Resumen:En este trabajo se examina el ensayo de Guillermo Lariguet intitulado “Analytical Legal Philosophy Reloaded”, y se ofrecen dos interpretaciones de su proyecto de “renovar” la filosofía analítica del derecho. En primer lugar se sostiene que una lectura naturalista del proyecto es injustificada, y que la vía más prometedora de interpretar su propuesta es en términos una agenda metodológica más ambiciosa, la cual es análoga al criticismo metodológico exhaustivo imaginado por Jürgen Habermas en algunos de sus trabajos, en los que centra su acción comunicativa. La “razonabilidad” de la propuesta, como la denomino, es una invitación a revitalizar y enriquecer no sólo la filosofía jurídica, sino el discurso filosófico en general; además muestra que la “renovación” de la filosofía del derecho no puede ser entendida como un proyecto que se origine única- mente desde el interior de la filosofía jurídica. (shrink)

What I have tried to do here is to provide a historical example of the interdependence between nature and culture that is one of the themes of this conference. To sum up: Scientific descriptions of the world emerge out of a complex interaction between nature, economic production, and the legal system. “Science” consists of a struggle among scientists, and between scientists and citizens, over what counts as “reality.” Lawmaking, in turn, consists of a struggle between people who want to (...) allocate access to resources for particular purposes, whether for commercial use, recreational use, or “natural” uses. Production, for its part, is a complicated function of technology, the sociology of user groups, the structure of legal entitlements to access, and the availability of resources. Nature, finally, is at any point, to no small degree, the product of past and present human impacts on it — which impacts, in turn, are determined in no small way by the sociology and the legal structure of the market.Each process takes place in continual conversation with all the others. As John Muir put it, “When we try to pick out anything by itself, we find it hitched to everything else in the universe.”45 Historically, resource managers have gotten into trouble when they have unconsciously assumed that such is not the case — yet such, assumptions are powerful because they are made instinctively, unthinkingly, at the level of people's basic understanding of the world and their place in it. Lots of them persist.On the other hand, in a few experimental cases in the United States and Canada where government and users have shared power and responsibility for resources management, including long-range planning for recovery and enhancement, here have been some notable improvements. The strategy goes under the name of “co-management” and involves negotiated agreements for shared decision-making between central authority and local groups. Typically, both government and industry resist such arrangements because they involve restructuring the power relations between different sectors in the industry; the result is that the few experiments in co-management that we have seen in the United States have come in areas, typically fisheries and wildlife, where the resource is in serious crisis and all of the parties to the agreement have had to abandon the positions they held previously.Examples of successful co-management regimes include those among American tribes in the Pacific Northwest, among commercial salmon fishers in Alaska, and in a project to rehabilitate the clam industry in New Jersey. Government employees and local groups share responsibility for gathering scientific data about the resources, for developing plans to manage them, and for enforcing regulations. Successful experiments at co-management seem to generate better scientific data about their resources than traditional management regimes do; they significantly reduce enforcement costs; and they enhance the economic power of the resource users. Most importantly, they nurture among the user groups a sense of control over their own destinies, and a willingness to share both costs and benefits of managing the resources rationally and to develop lasting, stable mechanisms for conflict resolution. The process is both democratic and ecologically rational. The key is to link the day-to-day work of producers to their long-range interests as residents in their communities and as working parts of the ecological systems in which they live.45At a minimum, it is clear that objective certainty about the state of the resources or the likely effect of whatever regulations we do impose is simply not attainable. This is partly because of the important role that random shocks play in the environment (and should play in our thinking about it), and also because of the sheer complexity of the system in which we are embedded. There will always be something that even the most complete model leaves out; and in any event the total system of ecology, production, and management will change every time something changes in any part of it.The policy lesson to be derived from all of this, finally, is that what we ought to sustain when we approach conservation problems is not the size of a particular resource, or even the prosperity of a particular harvesting group, but the long-term health of the interaction between nature, the economy, and the political system. We can recognize that the balance of the system, our attempted insurance against an uncertain future, democracy among user groups, and our moral duty to avoid extinguishing species — all of these things being difficult to quantify — do play integral roles in the conversation between nature and humankind, and perhaps more significant roles than the more objective measures to which we usually look for guidance. We can recognize, as John Muir did, that because everything in the universe is hitched to everything else, every step we take will change the total system in some way. When we make choices, then, we can keep an eye on what kind of conversation we want to have with the rest of Creation and make our choices accordingly. *** DIRECT SUPPORT *** A8402064 00014 *** DIRECT SUPPORT *** A8402064 00015. (shrink)

Research carried out in Lithuania shows that the system of expert bodies has already prepared for change. Such opinion is supported by the Lithuanian Government working group meeting concerning the improvement of experts’ performance. In our opinion, Lithuania should ensure strategic, integrated multi-level forensic analysis, rational and potential use of material by not only dealing with a variety of forensic issues, but also by the interpretation of criminal investigation and prevention on scientific, methodological, didactic and organisational levels. The article (...) presents the concept of research that is accomplishing in scientific project ‘Special scientific knowledge of the investigation of crime: the concept and its realisation mechanism” and first intermediary results of the research. The purpose of the project is to formulate the scientific concept and realisation of special knowledge in the investigation of crimes and administrative offences in the direction of legal system reform. (shrink)

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the (...) institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata. (shrink)

Neutrality, liberalism, and islam integration in Europe and America -- Limits of excluding: the French burqa law of 2010 -- Limits of including: Germany's reticence to "cooperate" with organized Islam -- "Reasonable accommodation" and the limits of multiculturalism in Canada -- The dog that didn't bark: Islam and religious pluralism in the United States -- Islam and identity in the liberal state.

The escalating integration of Artificial Intelligence (AI) in clinical settings carries profound implications for the doctrine of informed consent, presenting challenges that necessitate immediate attention. China, in its advancement in the deployment of medical AI, is proactively engaging in the formulation of legal and ethical regulations. This paper takes China as an example to undertake a theoretical examination rooted in the principles of medical ethics and legal norms, analyzing informed consent and medical AI through relevant literature data. The (...) study reveals that medical AI poses fundamental challenges to the accuracy, adequacy, and objectivity of information disclosed by doctors, alongside impacting patient competency and willingness to give consent. To enhance adherence to informed consent rules in the context of medical AI, this paper advocates for a shift towards a patient‐centric information disclosure standard, the restructuring of medical liability rules, the augmentation of professional training, and the advancement of public understanding through educational initiatives. (shrink)

From a legal-philosophical point of view, The Redress of Law presents a critical analysis of a number of related doctrinal fields: constitutional, labour and EU Law. Focusing on the organisation and protection of work, this book asks what it means to protect work as an essential aspect of human flourishing. This is an ambitious and highly sophisticated intervention in contemporary academic and political debates around a set of critically important questions connected to processes of globalisation and market integration. The (...) author redefines the nature of legal and political thought in an age in which market rationality has exceeded its classic domain and has come to pervade the organization of social and political life. This restatement of critical legal theory is intended to defend the concept of constitutionalism and suggest new ways to deploy the law strategically. (shrink)

The paper argues against the polarisation of the health economics literature into pro- and anti-QALY camps. In particular, we suggest that a crucial distinction should be made between the QALY measure as a metric of health, and QALY maximisation as an applied social choice rule. We argue against the rule but for the measure and that the appropriate conceptualisation of health-care rationing decisions should see the main task as the integration of competing and possibly incommensurable normative claim types. We identify (...) the main types as consequences, rights, social contracts, individual votes and community values and note situations in which the contribution of each claim type is limited. We go on to show that the integration of (at least some of) these claim types can be formalised within the mathematical framework provided by non-linear programming. (shrink)

The paper emphasizes the role of knowledge dimensions of an action which could be regarded as rational. Rational action usually results of specific decision — making process including selection, evaluation and acceptance of a preferred alternative. This process should integrate not only various types of knowledge but also the interdisciplinary or interdepartmental knowledge integration. The integration of knowledge may cover various forms, especially integration of knowledge relating to different domains, of different quality, of knowledge connected with different goal-orientations. (...) The paper stresses the role of the hitherto known and recognized alternatives. The integration procedures should also include the integration of various spheres and types of knowledge with accepted and justified systems of values. (shrink)

Preface The status of sovereignty as a highly ambiguous concept is well established. Pointing out or deploring, the ambiguity of the idea has itself become a recurring motif in the literature on sovereignty. As the legal theorist and international lawyer Alf Ross put it, “there is hardly any domain in which the obscurity and confusion is as great as here.” 1 The concept of sovereignty is often seen as a downright obstacle to fruitful conceptual analysis, carried over from its (...) proper setting in history to “plague and befog contemporary thought.” 2 . . . So contested is the concept that, rather than pursuing the contestation, many political theorists think we should give up so protean a notion. Granting that the debate on the relevance of sovereignty frustratingly oscillates between claims that it will either continue to exist or that it is about to disappear, forgetting it altogether, and thereby escaping this seemingly endless argument, can easily appear as the most urgent task for political theory . The following argument makes a case that the “urgent task” is not the abandonment of the concept of sovereignty, but an understanding of its essential philosophical nature as an integrated and evolving expression of practical reason. Sovereignty is neither ambiguous nor obscure once its fundamental presuppositions are laid bare and its many philosophical and historical manifestations shown to be the product, in actuality, of a single, dialectally dynamic but integrated set of metaphysical elements. This is the first of three arguments describing the evolution of international law as a manifestation of practical reason through an application of philosophical method to the source , locus , and scope of the concept of sovereignty. It moves from a dialectic balance favoring utility to a balance dominated by legal right to a dialectic of duty to humanity and nature. All three arguments are meant to be a contribution to the new field of International Legal Philosophy as defined by Phillip Allott. 4 This field combines a sensitivity to legal practice with an effort to understand the underlying philosophical determinants of empirical choice and behavior. One purpose of international legal philosophy is to “remove” from the minds of those who study the law what Diderot defined as “the sophism of the ephemeral,” and what Allott calls “the disempowering idea that what xii Preface happens to exist now is inevitable and permanent.” 5 A core imperative is to “reunderstand what it is to be a thinking being” 6 and to rediscover the dialectic between the private and the public as it determines, and is redetermined by, legal practice. This requires a “revolution in the human mind” 7 so that we may transcend the current dependence on positivist methods and empirical fact as an end-in-itself, and try to understand the underlying and more constant and essential ideas and inherent dialectics that constitute the substructure or “metaphysics” of international law. I will approach this “revolution” with the use of R. G. Collingwood’s philosophical method 8 and the philosophy of David Hume, applied to international law as an expression of practical reason. The goal of philosophical method is the construction of a comprehensive policy argument (CPA) for a public policy or legal issue. In addition to the conventional use of empirical models and their logic of investigation in the study of policy and law, CPA requires that an underlying philosophical logic of concepts be deciphered to identify the ideas within the issue, and their definition, overlap, and systematic interdependence. Philosophical method is a means with which to interpret and understand competing systematic and complete conceptual logics, existing at the core of an issue and pertinent to policy change. Philosophical method is therefore not meant to be a replacement for the empirical investigation of a policy or legal issue, or the use of scientific method in social studies. Rather, it is a complimentary and prerequisite method that seeks to transcend the limitations of positivism and present a more complete understanding of the philosophical presuppositions of positivist ideas like power, interest, or strategic rationality. Philosophical method is meant to be used with the facts of the policy or legal issue to match an illuminating logic of concepts with a pertinent logic of investigation . Within the CPA, the use of philosophical method and the metaphysics of a policy or legal issue is assumed to be critical to the full understanding of the overlapping concepts, dialectics, and scale of forms that determine, and are determined by, the empirical context of the policy or legal topic. Specifically, instead of utilizing bits and pieces of various theoretical arguments to address narrowly focused empirical questions, as positivism prescribes, I will address the evolution of international law as practical reason in three phases. Each will be approached through a single integrated logic of philosophical concepts from a particular philosopher (i.e., David Hume, G. W. F. Hegel, Immanuel Kant). This philosophically holistic approach to the law is based on the assumption that only through the use of a single integrated argument in legal analysis can sovereignty, or any concept, be understood as a truly systematic and logical whole. A complete philosophical paradigm has a dialectic integrity and systematic logic that can more adequately describe the evolving essence of a concept like sovereignty. This approach also has the advantage of generating a number of distinct holistic descriptions of the law through the application of different philosophical systems, one at a time, to its factual structure. 9 Positivism does not seek Preface xiii holism, and rejects the idea that “theory” has such a characteristic. The essential or comprehensive substructure of any idea is therefore ignored in a method that recommends the observation of empirical problems through the use of whatever hodgepodge of theoretical elements is seen fit to frame its superstructure. This failure to deal with metaphysics has retarded both an essential understanding of international law as a species of legal system, and any holistic and dialectical conceptualization of its inherent concepts, like sovereignty. A second positivist convention expects modern theorists to create new theory rather than to refine and apply that of existing philosophy. This predisposition is driven by the positivist goal of discovery that ignores refinement as a possible purpose of philosophical analysis. Collingwood argues that philosophy must take that set of ideas already known and utilize existing systematic philosophical arguments to refine them so that they evolve closer to their essence as concepts. Considering this imperative, the idea of sovereignty can be assumed to have had valid usage for hundreds of years, over which time, the concept has evolved to mean different things, each a refinement of the definition that preceded it. Transcending positivism means that the scholar’s search is not for “new” material, but to decipher the metaphysical essence of a concept as it has been made manifest over time and context. These manifestations are rooted, and refined from, the known terms of that concept’s inherent idea(s). Rather than depending exclusively on positivism and its conventions, my work utilizes, in addition to Collingwood, the intact philosophical systems of Hume, Hegel, and Kant to trace the refinement of international law as a product of human practical reason. These paradigms, or integrated systems of logical concepts, will be applied to legal practice individually, so that each CPA can be deciphered separately. This provides a set of integrated and logically intact paradigms for the evolutionary stages of practical reason in international law. Because each argument is applied systematically, a deeper understanding of the source, locus, and scope in the development of law in general, and international law in particular, is possible where it is not with the application of various disconnected components of many theories. Each CPA based on Hume, Hegel, or Kant can then be used to describe a distinct context that its logic of concepts best illuminates; specifically, the (1) genesis, (2) contemporary dilemmas, and (3) future of the international legal system. By widening the perspective of international lawyers and policymakers, they can more easily perceive the dialectic of ideas that has created, and is refined by, the legal practice in which they participate. We also move toward Allott’s goal of “human self-perfecting.” 10 And, in addition, by providing a more complete knowledge of the origins of legal practice and its evolution, we illuminate the practical possibilities for what we might “choose to be” 11 in the future. To achieve this, the essential metaphysical elements of state sovereignty and its inherent evolutionary scale of forms will be deciphered and described. This will transform what appears to be a multitude of definitions and xiv Preface practical realizations of the concept of sovereignty into a set of interdependent manifestations of a single substructure, made of a single set of dialectic elements. The interpretation of international law through practical reason sorts and integrates a diverse and discordant literature and defines state sovereignty as a single concept evolving on a scale of forms that allows it to exhibit diverse character traits, all arising from different combinations of common and essential metaphysical elements. This approach, compared to positivist methods and legal realism, allows one to transcend current agreement that sovereignty is, at best, a narrowly focused set of empirical characteristics or, at worst, “organized hypocrisy.” 12 This method also encourages the scholar and practitioner to understand the predispositions and pitfalls of the concept of sovereignty, as well as its potential future paths, more effectively. The use of philosophical method to create policy paradigms out of preexisting philosophical systems and apply these to international law will be called Philosophical-Policy & Legal Design . This approach allows the use of preexisting and complete philosophical arguments that provide an adequate logic of concepts to chart the evolution of the idea of sovereignty along its scale of forms. An examination of the source of practical reason in human social convention with the employment of a philosophical-policy drawn from Hume’s logic of concepts about human nature will demonstrate this new approach. Why Hume? Because, up to now, without an adequate substructure we have arguments, like Brunne é’ s and Troope’s, 13 that may correctly identify international law as an “interactional” system, but cannot present any argument as to why it is, where this empirical reality comes from, or what its implications are for the future. Comparatively, Hume provides a logic of philosophical concepts that answers these concerns. First, he fulfills the requirements for a fuller understanding of the origin and evolution of law from social convention and the dependence of social convention on the human imperative for society. Second, he offers a more adequate delineation of the overlapping concepts of the law in terms of the ideas and institutions that deal with norms and justice (e.g., principle, process, practice, rule, power, interest). Third, he provides a fundamental understanding of the essential dialectics at the core of a conceptualization of the law with both unconscious and conscious human participation (i.e., passion. (shrink)

Carl Schmitt, one of the most influential legal and political thinkers of the twentieth century, is known chiefly for his work on international law, sovereignty, and his doctrine of political exception. This book argues that greater prominence should be given to his early work in legal studies. Schmitt himself repeatedly identified as a jurist, and Hugo E. Herrera demonstrates how for Schmitt, law plays a key role as an intermediary between ideal, conceptual theory and the messiness and complexity (...) of practical, concrete situations. Law is concerned precisely with balancing the extremes of theory and reality, and in this respect, Schmitt associates it with philosophical thinking broadly as being able to understand and explain the tensions in human experience. Reviewing and analyzing prevailing interpretations of Schmitt by Jacques Derrida, Heinrich Meier, and others, Herrera argues that the importance of Schmitt's legal framework is both significant and overlooked. (shrink)

Skene and Parker are demonstrably mistaken in suggesting that the amicus role of Catholic bishops in three cases has been concerned with “developing” the law. In contrast with Skene and Parker’s freestanding conception of legal principle, the Catholic understanding of law’s rational moral foundations has permitted Catholic bishops to defend longstanding legal principle as well as defending the integrity of the church’s health care and welfare services. It is shown that in the three cases under discussion (...) Catholic bishops were providing needed argument otherwise unavailable to the courts in defence of existing statute. In face of the attempts by pressure groups to bypass the legislature and use the courts to subvert fundamental legal principles, the church is perhaps uniquely capable of continuing to provide to the courts rational defences of those principles. (shrink)

Muhammad Arsyad Al-Banjari who lived from 1710 to 1812 in Borneo, Indonesia, applied a model of integrating uses of the Banjarese tradition into Islamic Jurisprudence based on a dialectical constitution of qiyās, the legal argumentation theory for parallel reasoning and analogy, he learned from the Shāfi‘ī-school of jurisprudence (uṣūl al-fiqh). Our paper focuses in the model of integration proposed and practiced by Al-Banjari, a rational debate grounded on a dynamic view on legal systems. We will illustrate the (...) method with the help of two different kinds of qiyās deployed by Al-Banjari in order to argue for the rejection of some traditional Banjarese offering-rituals for avoiding disease or calamities (manyanggar and mambuang pasilih), and for the acceptance of the use of consuming the traditional drink called lahang made of the juice of sugar-palm. As our dialogical reconstruction shows, the development of the debates, particularly the first one, is quite sophisticated, with a Banjarese opponent that does not surrender easily to the rejection of his use of those rituals. (shrink)

According to Dascal, controversy is characterised by a special kind of rationality, one result thereof being the unique contribution of this kind of polemics to the growth of knowledge. This, in turn, implies that complete cooperation may be detrimental for the efficiency of communication. In this article I discuss the kind of rationality that characterises controversy in legal discourse, in order to provide additional support to Dascal’s thesis about the uniqueness of the rationality of this kind of polemic exchange. (...) I present empirical evidence supporting the conclusion that we may characterise the rationality inherent in controversy by its tolerance to inconsistency; I elucidate the tolerance to inconsistency of the rationality of legal polemic by showing that the norms recommended by the Israeli Supreme Court in the domain of conjugal relationships between men and women verge on inconsistency: On the one hand, the legal system defends the right of women over their bodies, including a woman’s right to establish a romantic relationship, regardless of the nature of the relationship she has with other men; on the other hand, the court acknowledges a man’s uncontrolled tendency to impose monogamous behaviour on his female partner. (shrink)

In the 17th and 18th centuries, the doctrine of just war was one of the most popular theories in international law. According to this doctrine, the right to war is an integral part of natural law and, under specific circumstances, morally justified. To my mind, Kant was a fervent critic of the theory of just war. He critically reformulates the rational and normative principles of right in a way that leaves no place for war as a legitimate procedure to (...) resolve a conflict between states. In section, I shall analyze the fundamental principles of ius gentium, in particular, the duty to leave the state of nature at the international level and the juridical form that the association between states must adopt. The exit of the state of nature between nations must generate an international legal framework that not only protects human rights but also safeguards the sovereignty of the peoples. In section, I shall examine Kant’s critique of the doctrine of just war in Zum ewigen Frieden and in the Rechtslehre, exploring why the idea of an ius ad bellum is incompatible with the critical reformulation of the right of nations proposed there. (shrink)

BackgroundClinical trials involving children previously considered unethical are now considered essential because of the inherent physiological differences between children and adults. An integral part of research ethics is the informed consent, which for children is obtained by proxy from a consenting parent or guardian. The informed consent process is governed by international ethical codes that are interpreted in accordance with local laws and procedures raising the importance of contextualizing their implementation.FindingsIn Zimbabwe the parental informed consent document for children participating in (...) clinical research is modeled along western laws of ethics and requires that the parent or legally authorized representative provide consent on behalf of a minor. This article highlights the experiences and lessons learnt by Zimbabwean researchers in obtaining informed consent from guardians of orphaned children participating in a collaborative HIV clinical trial involving the Medical Research Council, United Kingdom and four centers, three of which are in Uganda. Researchers were faced with a situation where caregivers of orphaned children were not permitted to provide informed consent for trial participation. The situation contrasted with general clinical practice where consent for procedures on orphans is obtained from their caregivers who are not legal guardians.ConclusionThe challenges faced in obtaining informed consent for orphans in this clinical trial underscores the need for the Zimbabwe ethics committee to develop an ethical and legal framework for pediatric research that is based on international guidelines while taking into account the cultural context. The Medical Research Council of Zimbabwe has since started the process that is expected to involve critical stakeholders namely the community including children, ethicists, the legal fraternity and researchers. (shrink)

Personal autonomy is often lauded as a key value in contemporary Western bioethics. Though the claim that there is an important relationship between autonomy and rationality is often treated as uncontroversial in this sphere, there is also considerable disagreement about how we should cash out the relationship. In particular, it is unclear whether a rationalist view of autonomy can be compatible with legal judgments that enshrine a patient's right to refuse medical treatment, regardless of whether the reasons underpinning the (...) choice are known and rational, or indeed whether they even exist. Jonathan Pugh brings recent philosophical work on the nature of rationality to bear on the question of how we should understand personal autonomy in contemporary bioethics. In doing so, he develops a new framework for thinking about the concept of autonomy, one that is grounded in an understanding of the different roles that rational beliefs and rational desires have to play in it. Pugh's account allows for a deeper understanding of d the relationship between our freedom to act and our capacity to decide autonomously. His rationalist perspective is contrasted with other prominent accounts of autonomy in bioethics, and the revisionary implications it has for practical questions in biomedicine are also outlined. (shrink)

This chapter contains sections titled: The Moral Duty to Assist Others in Their Health Care Health Care Should Be Provided by the Government The Duty to Provide Truly Universal Health Care Rejecting the Liberal Model.

The goal of this book is to help the reader gain knowledge on ethical and legal issues in the field of student affairs and develop competency to follow the profession’s principles and standards of conduct. The significance of the book is due to its focus on the practical value of ethics and legal issues and its aim to address the knowledge, skills, and dispositions required of student affairs educators to develop and maintain integrity in their life and (...) work as described by the ACPA/NASPA. The text offers readers a number of major unique features: It offers multiple ethical decision-making models to guide student affairs educators in their ethical decision-making process. It proposes that ethics is not an individual but an organizational responsibility. It offers that ethical decision making is a professional skill that can be practiced and applied in student affairs educators’ day-to-day practice. It presents the reader with the most current legal issues in student affairs and higher education. Finally, it reflects three themes: integration of ACPA/NASPA competency areas; development of professional identity; and application of knowledge and theory to practice. The book is critical and timely. A book that focuses on ethical and legal issues in student affairs is needed for faculty in preparation programs, new professionals navigating their identity as student affairs educators, and a resource for mid- and senior-level professionals facilitating ongoing professional development. The book begins to address what it means to have a professional identity, which is ground in the shared ethical and legal values espoused within the profession and academia. Each chapter uniquely contributes to the complexity embedded in the study of ethics and how that is applied to practice. Additionally, the volume is a balance of procedural knowledge, case illustrations, and guided practice exercises to facilitate the reader’s ability to translate the theory and research discussed into professional decision making and application. (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)