Some accounts of the fiduciary relationship place trust and autonomy at odds with one another, so that trusting a fiduciary to act on one’s behalf reduces one’s ability to be autonomous. In this chapter, we critique this view of the fiduciary relationship (particularly bilateral instances of this relationship) using contemporary work on autonomy and ‘relational autonomy’. Theories of relational autonomy emphasize the role that interpersonal trust and social relationships play in supporting or hampering one’s ability to act autonomously. We argue (...) that fiduciary relationships, understood through the lens of relational autonomy, can provide a means of enhancing, rather than diminishing, beneficiaries’ autonomy. (shrink)

It is beyond doubt that the legal system established by the Nazi government in Germany between 1933-1945 represented a gross departure from the rule of law: the Nazis eradicated legal security and certainty; allowed for judicial and state arbitrariness; blocked epistemic access to what the law requires; issued unpredictable legal requirements; and so on. This introduction outlines the distorted nature of the Nazi legal system and looks at the main factors that contributed to this grave divergence.

This volume explores the relationship between law and geography, especially with respect to taken-for-granted distinctions between the social and the material, the human and non-human, and what constitutes persons and things. As a genuinely reflective `Law and Geography' project, this collection offers interdisciplinary inquiry, particularly in response to globalisation - of law, commerce, environmental change and society - which renders relations between the local and the global more significant. Because of the sheer expansiveness and complexity of both law and geography (...) we use conceptual frames to structure this volume - boundaries, land, property, nature, identity, culture and time, and knowledge. These frames cut across the various subdivisions of law and geography described above and provide a route into the various practical and theoretical deliberations on the interrelationship and interstices of law and geography which follow. The chapters are diverse in style, research methodology, and subject matter. (shrink)

Firearm injury in the United States is a public health crisis in which physicians are uniquely situated to intervene. However, their ability to mitigate harm is limited by a complex array of laws and regulations that shape their role in firearm injury prevention. This piece uses four clinical scenarios to illustrate how these laws and regulations impact physician practice, including patient counseling, injury reporting, and the use of court orders and involuntary holds. Unintended consequences on clinical practice of laws intended (...) to reduce firearm injury are also discussed. Lessons drawn from these cases suggest that physicians require more nuanced education on this topic, and that policymakers should consult front-line healthcare providers when designing firearm policies. (shrink)

Introduction:Can nature be controlled?. Autonomous nature -- Greco-Roman concepts of nature -- Christianity and nature -- Nature personified : Renaissance ideas of nature -- Controlling nature. Vexing nature : Francis Bacon and the origins of experimentation -- Natural law : Spinoza on natura naturans and natura naturata -- Laws of nature :Lleibniz and Newton -- Epilogue : rambunctious nature in the twenty-first century.

First published in 2008. Routledge is an imprint of Taylor & Francis, an informa company.

Alexius Meinong advocated a bold new theory of nonexistent objects, where we could gain knowledge and assert true claims of things that did not exist. While the theory has merit in interpreting sentences and solving puzzles, it unfortunately paves the way for contradictions. As Bertrand Russell argued, impossible objects, such as the round square, would have conflicting properties. Meinong and his proponents had a solution to that charge, posing genuine and non-genuine versions of the Law of Non-Contradiction. No doubt, they (...) had a clever response, but it may not adequately address Russell’s concern. Moreover, as I argue, genuine contradictions are inherent to the set of all nonexistent objects. And such contradictions lead to even further absurdities, for example, that nonexistent objects have and lack every property. Unfortunately, such implications of the theory make it too treacherous to adopt. (shrink)

This is an ethnographic and theoretical exploration of the `shadows': vast transnational networks of goods, services, people and exchanges that flow outside formal and legal state channels and international laws. These networks involve millions of people and more than a trillion dollars yearly worldwide, and my research demonstrates these are more formalized, integrated and rule-bound than traditional studies have suggested. Thus, `shadow' networks broker political, economic and social power that can rival many of the world's states, and they are profoundly (...) implicated in world markets. This article explores core characteristics and cultures defining extant extra-state systems, and the power and potentialities for social sovereignty they wield. Investigation into shadow realities prompts a reassessment of the basic theoretical ideas concerning the nexus of legality/illegality, state/non-state and formal/non-formal power relations defining the world today. (shrink)

One understanding of conscience dominates bioethical discussion about conscience. On this view, to have a conscience is to be compelled to act in accordance with one’s own moral values for the sake of one’s “integrity,” where integrity is understood as inner or psychological unity. Conscience is deemed valuable because it promotes this quality. In this paper, I describe the dominant view, attempt to show that it is flawed, and sketch a positive alternative to it. In my opinion, conscience often fails (...) to promote inner unity (regardless of the degree of inner unity we have in mind); acting with a conscience leaves many people broken rather than unified. A better view about the value of conscience is that having a conscience encourages morally responsible agency. My goal is to prove that this alternative explains better what it means to value conscience in health care and the extent to which we ought to value it. (shrink)

In 1935, the Nazi government introduced what came to be known as the abrogation of the pro- hibition of analogy. This measure, a feature of the new penal law, required judges to stray from the letter of the written law and to consider instead whether an action was worthy of pun- ishment according to the ‘sound perception of the people’ and the ‘underlying principle’ of existing criminal statutes. In discussions of Nazi law, an almost unanimous conclusion is that a system (...) of criminal law ought not to contain legislation of this sort. This conclusion is often based on how the abro- gation relates to the normative claim that the law ought to be predictable. In particular, it has been argued that since the law ought to be predictable, and since this type of analogy legis- lation implied, caused or contributed to the diminution of the law’s predictability, this type of legislation ought to be prohibited. In this paper, we argue that this argument is not entirely correct. While we believe that the law ought to be predictable and that there is evidence for the claim that the Nazis’ intro- duction of analogical reasoning implied, caused, or contributed to a diminution of predictability, this fact is logically too weak to ground the conclusion that necessarily a penal system ought not to contain legislation of this kind. Despite the undeniable wickedness of the Nazi penal system, this type of analogical reasoning can be made consistent with the pre- dictability of the law. We argue that consistency of this sort depends on whether the use of analogy is supplemented by certain contextual background conditions. The occurrence of these conditions blocks an inference from the fact that the law ought to be predictable to the conclusion that a penal system ought not to allow for this type of analogical reasoning. (shrink)

In the past, the Hague Conference on Private International Law has shaped how people can become the legal parents of children born in countries other than their own. It did so by creating the 1993 Hague Convention on Intercountry Adoption. It is now interested in developing a convention on international contract pregnancy. We discuss in this commentary what such a convention would have to include for it to be ethically consistent with the Convention on Adoption.

The community has legislatively conferred on external auditors a special but lucrative responsibility to provide fair and independent opinions about management''s preparation of company financial statements. In return, auditors are obliged by professional standards to act with integrity, independently and in the public interest. This study examined 174 auditors'' predisposition to provide just and fair judgements, using Kohlberg''s theory of developmental moral reasoning, one of the most widely accepted theories in justice psychology. Respondents came from five international audit firms in (...) Copenhagen. Results indicated that auditors with pre-conventional or low level of just reasoning or comprised 64 respondents, the largest group in the sample. The pre-conventional level suggests that people will act in their own self-interest and do the right only to avoid punishment. Pre-conventional auditors have the ability to "do deals", advantageous for business. When faced with an ethical crisis, however, auditors as this level will tend to focus on their own needs at the expense of others. The post-conventional or mid level of just reasoning comprised 59 auditors, second largest group in the sample. This level indicates that these auditors have the predisposition to act fairly on principal, particularly when faced with an ethical crisis. The conventional level or mid-just reasoning consisted of 51 auditors. People with a conventional level of just reasoning believe in law and order, the maintenance of the status quo, however they tend not to be critical of laws, nor authority even if those laws and authority are unjust or evil. (shrink)

Policy‐makers, bioethicists, and patient advocates have been engaged in a fierce battle about the merits and potential harms of a federal right‐to‐try law. This debate about access to investigational medical products has raised profound questions about the limits of patient autonomy, appropriate government regulation, medical paternalism, and political rhetoric. For example, do patients have a right to access investigational therapies, as the right‐to‐try movement asserts? What is government’s proper role in regulating and facilitating access to drugs that are still in (...) development? In this review, we analyze the history of the right‐to‐try movement, review the arguments put forth by supporters and opponents of the legislation, and consider the movement’s consequences. Two possible scenarios may emerge. One is that the right‐to‐try pathway may fail to meaningfully increase patient access to investigational products. Alternatively, certain companies may attempt to rely on the federal right‐to‐try legislation to sell investigational products, taking advantage of the provision that allows for direct costs, as there is currently no clear mechanism for enforcement or monitoring of cost calculations. (shrink)

How and why have Americans living at particular times and places used and transformed their environment? How have political systems dealt with conflicts over resources and conservation? This is the only major reference work to explore all the major themes and debates of the burgeoning field of environmental history. Humanity´s relationship with the natural world is one of the oldest and newest topics in human history. The issue emerged as a distinct field of scholarship in the early 1970s and has (...) been growing steadily ever since. The discipline´s territory and sources are rich and varied and include climactic and geological data, court records, archaeological digs, and the writings of naturalists, as well as federal and state economic and resource development and conservation policy. Environmental historians investigate how and why natural and human-created surroundings affect a society´s development. Merchant provides a context-setting overview of American environmental history from the beginning of the millennium; an encyclopedia of important concepts, people, agencies, and laws; a chronology of major events; and an extensive bibliography including films, videos, CD-Roms, and websites. This concise "first stop" reference for students and general readers contains an accessible overview of environmental history; a mini-encyclopedia of ideas, people, legislation, and agencies; a chronology of events and their significance; and a bibliography of books, magazines, and journals as well as films, videos, CD-ROMs, and online resources. In addition to providing a wealth of factual information, The Columbia Guide to American Environmental History explores contentious issues in this much-debated field, from the idea of wilderness to global warming. (shrink)

In the U.S., there is no requirement for research sponsors to compensate human research subjects who experience injuries as a result of their participation. In this article, we review the moral justifications that compel the establishment of a better research-related injury compensation system. We explore how other countries and certain institutions within the U.S. have adopted various systems of compensation. The existence of these systems demonstrates both that the U.S. lags behind other nations in its protection of human research subjects (...) and that the establishment of a compensation system is both practical and feasible. We then examine factors which have prevented the U.S. from establishing its own compensation system. We consider possible alternatives for the U.S. by examining the advantages and disadvantages of both established and proposed systems. We offer a new proposal that addresses the justice concerns which compel the establishment of a national compensation system, distributes the burdens of such a system on multiple stakeholders that benefit from research, and has the additional advantage of minimizing the administrative and logistical challenges associated with initiating such a system. (shrink)

The Declaration of Helsinki is recognised worldwide as a cornerstone of research ethics. Working in the wake of the Nazi doctors’ trials at Nuremberg, drafters of the Declaration set out to codify the obligations of physician-researchers to research participants. Its significance cannot be overstated. Indeed, it is cited in most major guidelines on research involving humans and in the regulations of over a dozen countries.Although it has undergone five revisions,1 and most recently incorporated language aimed at addressing concerns over research (...) carried out in resource-poor countries,2–5 the Declaration could go much farther in addressing the profoundly altered landscape of research with humans. Research involving humans is now a global enterprise and often involves participants from resource-poor countries. Rather than being carried out at single institutions by veteran researchers, many studies are now conducted at many locations—including sites that are not academic medical centres—by new and relatively inexperienced investigators. A growing number of projects involve novel agents, based on innovative work in genomics and proteomics. Increasingly, research is sponsored by the for-profit sector. National governments and professional organisations around the globe provide laws, regulations and standards for the conduct of research involving humans. Considerable scholarship also critiques and guides this endeavour.In light of the current effort of the World Medical Association to revise the Declaration, we offer ideas on how to re-conceive the concept of “vulnerability” and its links with the principle of justice and, in turn, redirect the attention of researchers towards those who might be so designated.In the research context, “vulnerability” is associated with an inability partly or totally to protect one’s own interests. Typically, conceptions of vulnerability centre upon characteristics associated with particular groups that …. (shrink)

This article considers the provisions of the Mental Capacity Act 2005 in respect of advance decisions. It considers the new statutory regulation of advance directives (termed 'advance decisions' in the Act) and the formalities necessary to effect an advance decision purporting to refuse life-sustaining treatment. The validity and applicability of advance decisions is discussed with analogy to case law and the clinician's reasonable belief in following an advance decision is considered. The article assesses the new personal welfare Lasting Powers of (...) Attorney, the situation where an attorney purports to refuse life-sustaining treatment on behalf of the donor, and the contrast between best interests and substituted judgment. (shrink)

This article examines the standard of disclosure, set by law, of risks of treatment and alternative procedures that should normally be disclosed to patients. Therapeutic privilege has been recognized by the courts as an exception to this standard of disclosure. It provides a justification for withholding such information from competent patients in the interests of patient welfare. The article explores whether this justification is either legally or ethically defensible. In assessing patient welfare, the health care professional is required to consider (...) the patient's overall best interests - but this is not limited to an assessment of medical best interests. It is contended that the health care professional is neither qualified nor justified in making such a judgement, as the law recognizes that a competent adult patient determines her own best interests. This is not possible without sufficient information of risks to inform the decision. (shrink)

Disparities exist in the health, livelihood, and opportunities for the 46-60 million people living in America’s rural communities. Rural communities across the United States need a new energy and focus concentrated around health and health care that allows for the designing capturing, and spreading of existing and new innovations. This paper aims to provide a framework for policy solutions to build a healthier rural America describing both the current state of rural health policy and the policies and practices in states (...) that could be used as a national model for positive change. (shrink)

A model policy for conscientious objection in medicine.

The Hague Conference on Private International Law currently has a Parentage/Surrogacy Project, which evaluates the legal status of children in cross-border situations, including situations involving international contract pregnancy. Should a convention focusing on international contract pregnancy emerge from this project, it will need to be consistent with the Hague convention on Intercountry Adoption. The latter convention prohibits adoptions unless, among other things, ‘the competent authorities of the receiving State have determined that the prospective adoptive parents are eligible and suited to (...) adopt’. Included in it, therefore, is a parental vetting or licensing requirement. In our view, a similar requirement must also appear in any Hague Convention on international contract pregnancy if the two conventions are to be ethically consistent with one another. In particular, there should be a licensing requirement in such a convention for at least some of the prospective parents in contract pregnancy arrangements. We consider several arguments against this conclusion, and argue that none of them is successful. (shrink)

The Patient Protection and Affordable Care Act, passed in 2010, is considered by many to be the most significant healthcare overhaul since the 1960s, but part of its promise — improvement of population health through requirements for non-profit hospitals to provide “community benefit” — has not been met. This paper examines the history of community benefit legislation, how community benefit dollars are allocated, and innovative practices by a few hospitals and communities that are addressing primarily non-medical factors that influence health (...) such as social disadvantage, attitudes, beliefs, risk exposure, and social inequalities. (shrink)

BackgroundJunior medical doctors have a key role in discussions and decisions about treatment and end-of-life care for people with dementia in hospital. Little is known about junior doctors’ decision-making processes when treating people with dementia who have advance care directives, or the factors that influence their decisions. To describe among junior doctors in relation to two hypothetical vignettes involving patients with dementia: their legal compliance and decision-making process related to treatment decisions; the factors influencing their clinical decision-making; and the factors (...) associated with accurate responses to one hypothetical vignette. MethodA cross-sectional survey of junior doctors, including trainees, interns, registrars and residents, on clinical rotation in five public hospitals located in one Australian state. The anonymous, investigator-developed survey was conducted between August 2018 and June 2019. Two hypothetical vignettes describing patients with dementia presenting to hospital with an ACD and either: bacterial pneumonia; or suspected stroke were presented in the survey. Participants were asked to indicate whether they would commence treatment, given the ACD instructions described in each vignette.ResultsOverall, 116 junior doctors responded. In Vignette 1, 58% of respondents selected the legally compliant option. Participants who chose the legally compliant option perceived ‘following patient wishes’ and ‘legal requirements to follow ACDs’ as equally important reasons for complying with the ACD. The most common reason for not selecting the legally compliant option in Vignette 1 was the ‘ACD is relevant in my decision-making process, but other factors are more relevant’. In Vignette 2, 72% of respondents indicated they would commence treatment and 18% selected they would not commence treatment.. Similar reasons influenced participant decision-making in Vignette 2, a less legally certain scenario.ConclusionsThere are critical gaps in junior doctors’ compliance with the law as it relates to the implementation of ACDs. Despite there being differences in relation to the legal answer and its certainty, clinical and ethical factors guided decision-making over and above the law in both vignettes. More education and training to guide junior doctors’ clinical decision-making and ensure compliance with the law is required. (shrink)

PrécisFederally Qualified Health Centers (FQHCs) proved to be critical points of access for people of color and other underserved populations during the COVID-19 pandemic, administering 61% of their COVID-19 vaccinations to people of color, compared to the 40% rate for the overall United States’ vaccination effort. To better understand the approaches and outcomes of FQHCs in pandemic response, we conducted semi-structured interviews with FQHC health care providers and outreach workers and analyzed them using an inductive qualitative methodology.

This qualitative study describes the lived experience of physicians who work in communities that have experienced a public mass shooting. Semi-structured interviews were conducted with seventeen physicians involved in eight separate mass casualty shooting incidents in the United States. Four major themes emerged from constant comparative analysis: The psychological toll on physicians: “I wonder if I'm broken”; the importance of and need for mass casualty shooting preparedness: “[We need to] recognize this as a public health concern and train physicians to (...) manage it”; massive media attention: “The media onslaught was unbelievable”; and commitment to advocacy for a public health approach to firearm violence: “I want to do whatever I can to prevent some of these terrible events.”. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

Abstract:Carolyn Merchant's book The Death of Nature, first published in 1980, has been seminal for feminist research on the relationships between gender, knowledge production, and human-nature relations. In her historical reconstruction of the transition from the organic to a mechanical worldview during the sixteenth and seventeenth centuries, she points to the coincidence of colonialism, resource exploitation and the establishment of the scientific methods for understanding nature's laws. Merchant's first book launched a productive debate among historians of science and feminist (...) researchers on epistemology. With its thought-provoking approaches the book is still inspiring critical thinking about social relationships to nature. The article gives an overview on the academic persona of Carolyn Merchant and the vivid discussions The Death of Nature has sparked. (shrink)

This article shows that the conspicuous and consistent idiosyncrasy of Grotius's Biblical interpretation is an important part of his revolutionary effort to secularize natural law. In De iure praedae and related works, Grotius systematically deployed a range of exegetical techniques in order to demonstrate that the Bible, like all texts, is open to multiple interpretations and susceptible to hijacking by rival agendas. This strategy aimed to render the Bible inadmissible as evidence in legal disputes and political legitimacy claims. The consistent (...) instrumentality of Grotius's use of the Bible in IPC cannot be dismissed as mere legalistic opportunism or described as an atheistic move. Rather, Grotius's exegetical strategy was motivated by pacifism and a desire to protect religion from politicization. The article positions this secularization strategy in the intellectual environment of the Leiden Circle, and shows how competing Catholic, Calvinist, and Mennonite political readings of the same key biblical passages during the Dutch-Iberian conflict provided the immediate occasion for writing IPC. In order to construct a natural law theory that was independent from, and therefore acceptable to, all religious sides, it was necessary to ensure that the Bible have no final word in law or politics, lest its invocation link disagreements to belief and thereby render them impossible to resolve. (shrink)

What makes the rule of law so special that it is to conscientiously punish the â oebadâ doers and reward the â oegoodâ onesâ "such that, where there is the rule of law, peace and order are to be expected, so that â oethe rule of law is better than the rule of any individualâ? Take the case of international law, as an illustration. While different international courts have been busy going after the killers of innocent victims in Rwanda and (...) Liberia, they have turned a blind eye to the major powers which have killedâ "on a much larger and more brutal scale, by comparisonâ "innocent civilians in Iraq and Afghanistan, just to cite two current examples. Contrary to the conventional wisdom conveniently held by many in human history, the rule of law has its other side which has not yet been systematically understood, such that the rule of law is neither possible nor desirable to the extent that the defenders of legal institutions in human history would like us to believe. Lest any misunderstanding hastily occur, this is not to imply that the rule of law is absolutely useless, or that the literature in jurisprudence (and other related fields like political philosophy, ethics, law and economics, and the sociology of law) should be dismissed because of its scholarly irrelevance. Of course, neither of these two extreme views is reasonable either. Instead, this book provides an alternative (better) way to understand the nature of law, in relation to its necessity and contingency in the context of justiceâ "while learning from different approaches in the literature but without favoring any one of them (nor integrating them, since they are not necessarily compatible with each other). In the process, this book offers a new theory to transcend the existing approaches in the literature in a new directionâ "in that, in the end, there is no justice without injustice and that it will be transcended too. This seminal project, if successful, will fundamentally change the way that we think about the nature of law, from the combined perspectives of the mind, nature, society, and culture, with enormous implications for the human future and what I originally called its â oepost-humanâ fate. (shrink)

It is argued (a) that laws are assurances of protections of rights and (b) that governments are protectors of rights. Lest those assurances be empty and thus not really be assurances at all, laws must be enforced and governments must therefore have the power to coerce. For this reason, the government of a given region tends to have, as Max Weber put it, a "monopoly on power" in that region. And because governments are power-monopolizers, it is tempting to think that (...) the concepts of government and law are to be understood in terms of the concept of power. In actuality, the first two concepts are to be understood primarily in terms of the concept of morality--of rights-protection, to be specific--and only secondarily in terms of the concept of power. Contentions (a) and (b) appear to be inconsistent with obvious facts (e.g. the fact that Pol Pot's regime violated the rights of those over whom it had power). But (a) and (b) are compatible with those facts. This is a consequence of two principles. First, moral requirements have a "dimension of weight," as Dworkin put it, meaning that one moral imperative can be outweighed, without being obliterated, by another moral imperative. Second, sentential operators can have different degrees of scope. "It is hereby assured that" is such an operator. Linguistic surface structure may obfuscate the degree of scope that it has in a given sentence. That fact compatibilizes our analysis with the fact that there are evil laws and evil governments. (shrink)

A law, say, prohibits homosexual conduct or punishes the prostitute for plying her trade. According to some it is a bad law, according to others a necessary one. Those who argue that it is a bad law do so on a variety of grounds—that it is sheer folly to try to change human nature by law, that such legislation can only be effective at the price of the right to privacy, that the punishment of acts arising from compelling desires is (...) cruel and excessive, that the law has no business meddling in what people do to others with their consent. Those who argue that it is a necessary law do so on one ground, that the act in question is immoral, and that what is wrong must be punished, lest the law itself fall into disrepute by failing to carry out a consistent campaign against wrong-doing. (shrink)

In criminal law, the mental state of the defendant is a crucial determinant of the grade of crime that the defendant has committed and of whether the conduct is criminal at all. Under the widely accepted modern hierarchy of mental states, an actor is most culpable for causing harm purposely and progressively less culpable for doing so knowingly, recklessly, or negligently. Notably, this hierarchy emphasizes cognitive rather than conative mental states. But this emphasis, I argue, is often unjustified. When we (...) punish and blame for wrongful acts, we should look beyond the cognitive dimensions of the actor’s culpability and should consider affective and volitional dimensions as well, including the actor’s intentions, motives, and attitudes. One promising alternative mental state is the attitude of culpable indifference. However, we must proceed carefully when permitting criminal liability to turn on culpable indifference and similar attitudes, lest we punish vicious or unvirtuous feelings that are no.. (shrink)

The story of Judah and Tamar in Genesis 38 is one of the most intriguing stories in the Hebrew Bible. While it yields many useful insights into the character of God, the nature of sin and the aspiration of our redemption, it is equally offensive when one looks at it from a human rights perspective, considering, in particular, the vulnerable and defenceless woman, Tamar. Her being returned to her father’s house is portrayed as acting in accordance with the law for (...) a childless widow. However, using the critical hermeneutical lens, it becomes apparent that the real motive that drove Judah to send her away was his fear lest his only surviving son Shelah should share the fate of Er and Onan, whose deaths he plainly attributed to Tamar’s doing. As such, Tamar was deprived of the right to marry Shelah as provided for in the levirate marriage law. Using feministic hermeneutics and the comparative approach, this article foregrounds the vulnerability experienced by women, especially when their husbands mysteriously or suddenly pass away. Because of the patriarchal hegemony of African and Israelite societies, childless widows often find themselves ostracised from the same families which they thought they were now part and parcel of by virtue of having married into that family. Much of the ostracism emanates from the fact that they are usually fingered as the prime suspects responsible for having played a part in their husbands’ deaths. Hence, the crux of this article is to present the interface between the Israelite and African worldviews, highlighting the parallels between the plight of widows in the Israelite and Shona societies. (shrink)

Peter Forrest argues that theism is warranted by an inference to the best explanation that does not posit God as a supernatural entity. Lest theists fear that Forrest settles for an ersatz naturalistic conception of God, let me reassure them that his view might be captured by the slogan, "Neither a naturalist nor a supernaturalist be!" Both naturalism and supernaturalism attempt to understand what Forrest calls the "familiar"—the things observable by humans, including the phenomena of consciousness—but they differ about the (...) constraints on acceptable explanations. Naturalism accepts, while supernaturalism rejects, the following constraints: don't posit an "unfamiliar" entity unless a well-confirmed scientific theory provides a "precedent" for it, and don't violate any well-confirmed laws of nature. Forrest's antisupernaturalism accepts, but weakens to : don't posit an unfamiliar kind of entity unless there is some precedent for it, either in the familiar entities we already believe in, or in a well-confirmed scientific theory. Thus, every naturalistic explanation is antisupernaturalist, but some antisupernaturalist ones are not naturalistic because they posit unfamiliar entities on the basis of a commonsense nonscientific theory. (shrink)

This volume addresses three major themes regarding recipes: their nature and identity; their relationship to territory, producers, consumers and places of production. The first part looks at taxonomies of recipes, the relationship between recipes and their source, and how recipes have changed over time, including case studies that look at unsourced recipes through to recipes for foods that are very highly processed. The second part identifies the constitutive relationships that characterize recipes, between territory, producers, consumers, places and spaces of production. (...) The third part studies the values and norms guiding the naming, production and consumption of recipes, scrutinising the cultural appropriation of recipes, how to stake authority in claiming a recipe, and the interplay between aesthetics and ethics in recipe making. With contributors ranging across disciplines including philosophy, law and history, and including established academics such as Carolyn Korsmeyer and food writers such as Rachel Laudan this volume will be of vital importance for those looking to understand how archival material forms our understanding of eating habits and culture throughout history. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Wittgenstein on Non-Mediative CausalityJames C. KlaggeIn the late autumn of 1947 Wittgenstein dictated a selection of manuscript material to a typist1 that contains some remarks so striking that they merit extensive quotation:903. No supposition seems to me more natural than that there is no process in the brain correlated with associating or with thinking; so that it would be impossible to read off thought-processes from brain-processes. I mean this: (...) if I talk or write there is, I assume, a system of impulses going out from my brain and correlated with my spoken or written thoughts. But why should the system continue further in the direction of the centre? Why should this order not proceed, so to speak, out of chaos? The case would be like the following—certain kinds of plants multiply by seed, so that a seed always produces a plant of the same kind as that from which it was produced—but nothing in the seed corresponds to the plant which comes from it; so that it is impossible to infer the properties or structure of the plant from those of the seed that it comes out of—this can only be done from the history of the seed. So an organism might come into being even out of something quite amorphous, as it were causelessly; and there is no reason why this should not really hold for our thoughts, and hence for our talking and writing. (Zettel 608)904. It is thus perfectly possible that certain psychological phenomena cannot be investigated physiologically, because physiologically nothing corresponds to them. (Z 609)905. I saw this man years ago; now I have seen him again, I recognize him, I remember his name. And why does there have to be a cause of this remembering in my nervous system? Why must something or other, whatever it may be, be stored-up there in any form? Why must a trace have been left behind? Why should there not be a psychological regularity to which no physiological regularity corresponds? If this upsets our concepts of causality, then it is high time they were upset. (Z 610) [End Page 653]906. The prejudice in favor of psycho-physical parallelism is also a fruit of the primitive conception of grammar. For when one admits a causality between psychological phenomena, which is not mediated physiologically, one fancies that in doing so one is making an admission of the existence of a soul alongside the body, a ghostly soul-nature. (cf. Z 611)909. Why should not the initial and terminal states of a system be connected by a natural law, which does not cover the intermediary state? (Only don’t think of efficacy/influence [Wirkung]!) (Z 613)918. …Well—but now that the structure of the eye is known—how does it come about that we act, react, in this way? But must there be a physiological explanation here? Why don’t we just leave explaining alone?—But you would never talk like that, if you were examining the behavior of a machine!—Well, who says that a living creature, an animal body, is a machine in this sense?— (Z 614)Lest you think, or hope, these ideas were just a passing fancy of Wittgenstein’s, it is worth noting that these passages were among the ones that he cut from this typescript to save in a box and rearrange and perhaps revise for future use. They were published posthumously as Zettel.2What are we to make of these striking ideas? Do they hint at “mystical vitalism”? Is there an intellectual trajectory along which they can be located and appreciated, even if perhaps ultimately rejected? Or is he simply making a “natural” objection to reductionism about memory?3In an earlier publication I briefly offered a motivation for these views,4 but I now have more to say and wish to try again. Earlier I saw these passages primarily in relation to Wittgenstein’s other views about mental phenomena, but I now think something can be gained by seeing them in relation to his views about causality. Unfortunately causality is not a topic about which Wittgenstein had... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 31.3 (2001) 30-56 [Access article in PDF] The Priceless IntervalTheory in the Global Interstice Reingard Nethersole In a poignant scene in Goethe's Faust [1.2038-39] an eager student seeking what we would call curriculum advice today asks what subjects he should study. Counseled by Mephisto in the guise of the master, Faust, the student is admonished to read for anything but theory because: "Grey, my friend, is all theory, (...) / Green alone is life's golden tree." Uttered from within the epitome of an ivory tower image, a vaulted "gothic study," the advice gains rhetorical strength from alliterative, juxtaposed color metaphors which celebrate an organicist, holistic vision of life. Given current attitudes toward literary theory, many enthusiastic freshmen will receive similar guidance. Theoretical deliberation and mediation in the academy were not always popular, to be sure, but the resistance to theory was never as acute as it is now, when the very institutional space inhabited by thought is being curtailed largely because of financial considerations. Thus drawn into cost-benefit calculations that figure the student (in South Africa) as "client," the professor as "cost factor," and education as branded product, the University sees itself compelled, under the hegemony of the economic, to side with praxis in place of theory. "Doing" rather than thinking, action rather than reflection might have seemingly won the day, yet the controversy surrounding the relation between theory and literature on the one hand and theory and praxis on the other persists both inside and outside the academy.At the heart of a modern organization of knowledge, the dichotomy of theory and praxis is inscribed in Kant's Conflict of the Faculties. It will be remembered that Kant divided the domains of philosophy, theology, law, and medicine that constituted the University of his day into the "lower faculty," philosophy (lower from the point of view of government), and the "higher" faculties of theology, law, and medicine (higher because they are closer to government power). However, by granting philosophy (reason) implicit guardianship over the "higher faculties," lest these would revert to magical practices, Kant's Enlightenment philosophy placed a wedge between theory and praxis, a wedge that not only recast an ancient (Western) fissure between contemplation and action, a conscious I think and an active I do, but also opened a space for a troubled relationship between philosophy and the other faculties and between the faculties and state power—or as is the case today—economic power.Kant's university, of course, did not know the "humanities" of which history and literature were to become an integral part along with philosophy in the early nineteenth century, but by ranking reason below the utilitarian subjects or "faculties" while, at the same time, recognizing philosophy's preeminence as their imperative, Kant's positioning of thought/theory in relation to praxis 1 set up a tension between thinking and doing [End Page 30] that reverberates, for instance, in literary studies' perennial conflictual pairing between a "green" intuitive, untrammeled appreciation of literary texts and a "grey" theory. Moreover, supported by a particular modern, Western socioreligious structure (Protestantism) that values (bourgeois) industriousness or labor more than (aristocratic) leisure, the legacy of the "conflict of the faculties" implicates the connection between the university as institution of knowledge production in relation to the various domains of knowledge application and/or consumption.Concerned about the multiple changes that involve our being and acting in the world before an ever-expanding planetary horizon, which in turn profoundly alters the educational objective of institutions of higher learning in general and menaces such sites of thought as literary theory in particular, I shall, in the following, sketch the interval, a topos borrowed from musicological discourse, as a place for theory under global conditions. In addition I shall attempt to conjoin the disparate sides/sites of criticism and theory by cross-stitching Bill Readings's thoughts on the transformation of the university, descriptions of university "reform" currently under way in South Africa, and Goethe's text in order to illustrate the kind of subject/self produced by education or Bildung in contrast... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Women on the Global Market: Irigaray and the Democratic StateNicole Fermon (bio)Best known for her subtle interrogation of philosophy and psychoanalysis, Luce Irigaray clearly also conducts a dialogue with the political, proposing that women’s erasure from culture and society invalidates all economies, sexual or political. Because woman has disappeared both figuratively and literally from society [see Sen, “More Than 100 Million Women Are Missing”], Irigaray conceives the contemporary ethical (...) project as a recall to difference rather than equality, to difference between women and men—that is, sexual difference. She characterizes relations between men and women as market relations in which women are commodities, objects, but never subjects of exchange, objects to men but not to themselves: women do not belong to themselves but exist “to keep relationships among men running smoothly” [TS 192]. Women under these conditions require imaginative ways to reconfigure the self, to subvert the melancholy and regression of masculinist economies and envisage a future in which women would not be ashamed of the feminine, would experience it as a positivity worth emulating.Irigaray contends that after the gains of egalitarian politics are carefully examined, the inclusion of women in the political arena has failed to take into account women’s distinct and different position from men, and from each other, as well as perpetuating the fiction of the “neutral” citizen, the ahistorical individual citizen of the nation-state. It is that fiction Irigaray dispels in her critique of liberal democratic politics and its creation, “citizens who are neuter in regard to familial singularity, its laws, and necessary sexual difference” [SG 112] in order to benefit the State and its laws. The subject is male; the citizen is neuter. Who is the female citizen in contemporary society? What is the ethical elaboration of the contractual relations between women and men, and between sexed individuals and the community? How do women imagine a distinct set of rights and responsibilities based on self-definition and autonomy, given the particular strictures of contemporary politics—that is, the market-driven, antidemocratic nature of the current economic national and global forces? Irigaray suggests that “the return of women to collective work, to public places, to social relations, demands linguistic mutations” and profound transformations, an embodied imagination with force and agency in civil life [TD 65].Irigaray warns that if civil and political participation is construed in overly narrow terms, if focus is on economic or judicial “circuits” alone, we overlook the symbolic organization of power—women risk losing “everything without even being acknowledged” [TD 56]. Instead an interval of recognition can expand the political to include the concerns and activities of real women, lest silence imply consent to sexual neutrality, or more likely, to women’s obliteration under men’s interests and concerns. Women’s insistence on self-definition and wage labor, on love and justly remunerated work, [End Page 120] testifies to the obduracy of women’s difference, one that is not likely to disappear. The patriarchal family is still the legal norm, even when certain exceptions are made, while enduring questions regarding women’s health and children’s physical welfare as priorities beyond market considerations are consigned to legislative obfuscation, still a political afterthought. Instead, in the US the liberal state removes the slender welfare net specific to women and children, Aid to Families with Dependent Children, and fails to provide medical coverage to those who are among the most vulnerable of its citizens. Women without access to the legal protection of sex-neutral citizenship, poor working women without language (the money for an effective “mouthpiece” to represent their distress in a court of law), are further disempowered by liberal politics’ insistence on sexual neutrality—that is, on repression or amnesia regarding the lived experiences of women.Sexual difference is key to any project of self-definition by women. Irigaray insists on the sexual nature of this self-definition, not solely for its obvious procreative necessity, but because the natural world is a source of renewal and fecundity which requires attentive interrogation and respect [SG 15]. This rebirth seems alien to the structure of male politics, which instead seem to provoke disasters (Bhopal, Chernobyl, or the current runaway... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ought We to Require Emotional Capacity as Part of Decisional Competence?Paul S. Appelbaum* (bio)AbstractThe preceding commentary by Louis Charland suggests that traditional cognitive views of decision-making competence err in not taking into account patients’ emotional capacities. Examined closely, however, Charland’s argument fails to escape the cognitive bias that he condemns. However, there may be stronger arguments for broadening the focus of competence assessment to include emotional capacities, centering on (...) the ways in which emotions aid humans in processing information. Before emotional capacities are added to the list of functions essential for decisional competence, though, the feasibility and utility of such a reorientation must be demonstrated.To what extent ought persons’ capacities to experience emotion be taken into account when determining whether they should be deemed competent to make their own decisions? In the previous article, Louis Charland (1998) argues that traditional models of decision-making competence—of which the MacArthur Competence Treatment Study is a typical example—are mistaken in focusing narrowly on persons’ cognitive abilities to the neglect of emotional factors. In contrast, he suggests, constructs of competence ought explicitly to require a capacity to experience emotions, which he believes is central to meaningful decision making, before deeming persons competent.Charland, as he acknowledges, is not the first to suggest that the presence of some degree of emotional capacity is a necessary element of competence, but his argument is among the most elaborate to date and is certainly worth closer examination. Looked at carefully, however, Charland’s argument does not make quite the case for the determination of emotional capacity in competence assessment that he claims for it. Indeed, as I demonstrate below, Charland may share the same “pernicious [End Page 377] cognitive bias” that he ascribes to more traditional approaches. However, despite what I identify as the problems in Charland’s argument, others have raised more disturbing questions about the lack of attention to emotional issues in competence assessment. Thus, I am not ready to reject entirely the possibility that determinations of decisional competence ought to consider emotional factors. I conclude by outlining the questions that remain to be answered to identify more clearly the potential benefits of such an approach.The Construct of Decision-Making CompetenceSome preliminary comments about the nature of the dominant construct of decision-making competence may provide a useful frame for my response to Charland’s paper. Contemporary ideas of competence are tied inextricably to the ideal of self-determination in modern Western societies. Such societies are committed to respect for individual choice, both as a good in its own right and on the grounds that each person knows best what choices will maximize his or her own welfare. In general, therefore, states will not intervene to prevent persons from acting on their decisions, even when the choices they make—like the decision to smoke or to refuse potentially life-saving medical care—may objectively be thought to be detrimental to them.In some cases, however, the presumption that people will act in their own interests, as well as the notion that there is something intrinsically valuable in respecting their choices, fails (Buchanan and Brock 1989). When people’s minds are so disordered that they cannot be said to be making meaningful choices, other values come into play. Such people are called “incompetent.” When persons reach that point, the state’s interest in protecting its citizens becomes primary and someone else must make decisions on their behalf. Note that the size of this group must be sharply limited, lest a liberal society’s commitment to self-determination be undermined: There is no more profound infringement of the rights of citizens than the determination that they are incompetent. Thus, the criteria for incompetence must be selected in a deliberately narrow fashion—alternately, one might say that the standards for competence are made intentionally broad—so that all but a tiny percentage of citizens will be permitted to make decisions on their own.In the Anglo-American world, the process of formulating criteria of competence by and large has been left to the common law courts. Over the course of centuries they have identified the capacities that are, in... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Hume Studies Volume 32, Number 1, April 2006, pp. 113-117 How Wide Is Hume's Circle? (A question raised by the exchange between Erin I. Kelly and Louis E. Loeb, Hume Studies, November 2004) ANNETTE C. BAIER Hume's version, in An Enquiry concerning the Principles of Morals, section 9,2 of the viewpoint from which moral assessments are made, and from which traits are recognized as virtues or vices, is that (...) it is one which activates a "universal principle of the human frame," the "principle of humanity." It displays "the force of many sympathies," and depends upon our possession of "some propensity to the good of mankind" (EPM 5.39; SBN 226). Does this represent a revision, on Hume's part, of his Treatise claim that sympathy with a person's "narrow circle" is what enables us to judge that person's moral goodness? A humanity-wide circle is scarcely "narrow," even if it is not wide enough for those who see our treatment of animals as relevant to our moral merit or demerit. The claim about sympathy with the narrow circle is made in the Treatise section "Of goodness and benevolence."3 It has recently been assuming the status of a definition of the Humean moral point of view, in some commentators' writings.4 If it had been so intended, then there would indeed be a revision in EPM, where there is no mention of narrow circles, merely two footnotes, 22 and 25, to the section "Why utility pleases," concerning the wisdom of confining our efforts to do good to those close to us, lest our efforts be "dissipated or lost for want of a properly limited object." But in fact Hume never claimed that sympathy with a Annette Baier formerly taught in the Department of Philosophy at the University of Pittsburgh, and is now retired. Email: [email protected]. 114 Annette C. Baier person's narrow circle was enough to enable us to recognize her bravery, her proper pride, her prudence, her good judgement, her wit, her integrity, her "justice" or her allegiance to lawful magistrates. It is needed only to judge her "goodness and benevolence. " (I take it that the title, "Of goodness and benevolence," is pleonastic, that the varieties of benevolence exhaust "goodness.") Just as benevolence is not the whole of virtue, for Hume, nor is "goodness." The section in which he uses the phrase, "narrow circle," begins with an explicit limitation of what is there to be discussed: "Having thus explained that praise and approbation for everything we call great in human affections, we now proceed to give an account of their goodness..." (T 3.3.3.1; SBN 602). "Good" is not, for Hume, the most general term of moral approbation. Just as we can judge some to be "too intrepid" (an ingredient in "greatness of mind"), so we can judge some to be "too good" (EPM 7.22; SBN 259). Hume's most general terms of approbation are "meritorious" and "estimable." He uses "good" in a restricted sense, for a person's possession of the group of virtues that come under "benevolence." In the Treatise 3.3.3.15 (SBN 581-82), he speaks not of one moral point of view, but of "steady and generalpoinrs of view" (my emphasis), and it is possible, indeed plausible, that sympathy with circles of different widths will be needed to recognize different virtues and groups of virtues. For some, such as justice, "extensive sympathy" (T 3.3.1.23; SBN 586) is needed. For others, such as affability, and other aspects of "goodness," we sympathize with the effects of the person's character on a less extensive circle. A good person is affable, generous, and kind, does well as friend, as parent, as neighbor, as colleague, as employer. She does considerate and helpful things to those she encounters, both those close to her, friends, family, and work-mates, and also to those to whom she is not so close, such as the needy in her own community, to whom she may give employment, or charity. Hume uses other phrases in Treatise 3.3 which are sometimes taken to refer to the same... (shrink)

Although most Asian states are signatories to UNCLOS, which offers options for dispute resolution by either voluntary or compulsory processes, in reality fewer than a dozen Asian states have taken advantage of such an approach. The decision to adopt third-party mechanisms comes under great scrutiny and deliberation, not least because of the entailing legal procedures and the politically sensitive nature of disputes. Vietnam claims the second-largest maritime area in the South China Sea dispute after China. A comparison of two recent (...) cases—the arbitration between the Philippines and China and the conciliation between Timor-Leste and Australia—highlights the importance of selecting between binding and nonbinding decisions and framing a complaint. In particular, any legal action under UNCLOS should specify China’s claims and actions in areas that encroach on Vietnam’s claimed exclusive economic zone (EEZ) and violate international law. (shrink)