First Published in 1993. Routledge is an imprint of Taylor & Francis, an informa company.

The Reputation of Justice Oliver Wendell Holmes, Jr., one of the chief architects of twentieth century American law, has gone through a number of phases, changing from being altogether praiseworthy in the last years of his life and the first years after his death in 1935 to that of more sober evaluations. Writing at mid-century Henry Steele Commager offered the judgment that Holmes had had about him “much of the Olympian [and] something of the Mephistophelean.” The most (...) useful account of how the winds of change swept along Holmes' reputation is an article by G. Edward White, “The Rise and Fall of Justice Holmes,” which appeared in the University of Chicago Law Review in 1971. White examined the myth of Justice Holmes as it obtained from 1932 to 1940 and then proceeded to describe the demythologizing of Holmes from 1941 through 1949. (shrink)

With the increasing use of algorithms in high-stakes areas such as criminal justice and health has come a significant concern about the fairness of prediction-based decision procedures. In this article I argue that a prominent class of mathematically incompatible performance parity criteria can all be understood as applications of John Broome’s account of fairness as the proportional satisfaction of claims. On this interpretation these criteria do not disagree on what it means for an algorithm to be _fair_. Rather they (...) express different understandings of what grounds a claim to a good being allocated by an algorithmic decision procedure. I then argue that an important implication of the Broomean interpretation is that it strengthens the case for outcome-based criteria. Finally, I consider how a version of the levelling-down objection to performance parity criteria arises within the Broomean account. (shrink)

Social Darwinism covers a set of particulars bearing a family resemblance including, but not limited to the extension of evolutionary biology to social phenomena, a biological explanation for the success of certain more biologically "fit" groups over others, an acceptance of the use of force by the "fit" to succeed over the "unfit" in the life struggle, and a preference for competition in the marketplace and a laissez-faire ideology. The serpent of Social Darwinism leaves a trail of the eugenics movement (...) in its wake. Evidence can be found that Oliver Wendell Holmes's judicial and non-judicial philosophy fits each of these instantiations.This paper first explains the origins of Social... (shrink)

In this article I consider two pertinent questions that practitioners must consider when they deploy an algorithmic system as support in clinical shared decision‐making. The first question concerns how to interpret and assess the significance of different performance measures for clinical decision‐making. The second question concerns the professional obligations that practitioners have to communicate information about the quality of an algorithm's output to patients in light of the principles of autonomy, beneficence, and justice. In the article I review the (...) four standard performance measures used to evaluate and validate algorithms, outline their role in the discussion of algorithmic fairness, and discuss the professional responsibilities that practitioners face when communicating information about these measures to patients. (shrink)

The Principles of Biomedical Ethics by Tom L Beauchamp and James F Childress which is now in its fourth edition has had a great influence on the development of bioethics through its exposition of a theory based on the four principles: respect for autonomy; non-maleficence; beneficence, and justice (1). The theory is developed as a common-morality theory, and the present paper attempts to show how this approach, starting from American common-morality, leads to an underdevelopment of beneficence and justice, (...) and that the methods offered for specification and balancing of principles are inadequate. (shrink)

As strong as the ethical overview of artificial womb technology (AWT) by De Bie and colleagues is (De Bie et al. 2023), it does not adequately address ethical considerations that may arise within C...

In the paper ‘Genetic information, insurance, and a pluralistic approach to justice’, Jonathan Pugh1 develops an argument from unresolved pluralism in our theories of justice, via the pluralism this occasions in relation to the specific question of the use of genetic test results in insurance underwriting, to the conclusion that the UK regulatory approach in relation to the use of GTRs in insurance is broadly correct.1 Pugh’s argument is wide-ranging and I cannot provide a complete critique of it (...) in this short comment, but I will gesture towards some strands of the argument that are potentially problematic. The first potential problem in the argument is that Pugh bases his argument on a very extensive range of accounts of justice, including pure maximising consequentialism, strict egalitarianism and libertarianism, among many others. If these are all accounts of justice, it is not strange that there is pluralism of conclusions in relation to a specific question of justice or discrimination, such as the use of GTRs in the underwriting of specific kinds of insurance contracts. Pugh’s range, for instance, includes accounts of justice that deny the direct importance of distributive concerns as well as accounts that see distributive concerns as crucial. These accounts disagree not only about the answer to Pugh’s question but also about …. (shrink)

The use of algorithms to support prediction-based decision-making is becoming commonplace in a range of domains including health, criminal justice, education, social services, lending, and hiring. An assumption governing such decisions is that there is a property Y such that individual a should be allocated resource R by decision-maker D if a is Y. When there is uncertainty about whether a is Y, algorithms may provide valuable decision support by accurately predicting whether a is Y on the basis of (...) known features of a. Based on recent work on statistical evidence in epistemology this article presents an argument against relying exclusively on algorithmic predictions to allocate resources when they provide purely statistical evidence that a is Y. The article then responds to the objection that any evidence that will increase the proportion of correct decisions should be accepted as the basis for allocations regardless of its epistemic deficiency. Finally, some important practical aspects of the conclusion are considered. (shrink)

Seth Vannatta identifies the common law as a central feature of the jurisprudence of former United States Supreme Court justice Oliver Wendell Holmes, Jr. Holmes treated the common law as if it were an epistemology or a reliable mode for knowledge transmission over successive generations. Against the grand notion that the common law reflected a priori principles consistent with the natural law, Holmes detected that the common law was historical, aggregated, and evolutionary, the sum of the (...) concrete facts and operative principles of innumerable cases with reasonable solutions to complex problems. This view of the common law is both conservative and pragmatic. Vannatta’s analysis of Holmes opens new directions for the study of conservatism and pragmatism—and pragmatic conservatism—demonstrating that common-law processes and practices have much in common with the form of communal inquiry championed by C.S. Peirce. (shrink)

Although The Common Law, the seminal work by Oliver Wendell Holmes, Jr., clearly represents the culmination of an intellectual journey, the development of Holmes' thought has not been easily deciphered. Frederic Rogers Kellogg traces Holmes' intellectual path, and asks: why did Holmes write The Common Law? what did he mean by his message that the law has evolved away from moral and toward external standards of liability? how did he arrive at this conclusion? The answers, Dr. (...) Kellogg maintains, are to be found in a series of nine essays that originally appeared in The American Law Review. They show that Holmes was obsessed with elemental questions of pure legal theory and link him closely to the philosophic method of his friend Charles Sanders Peirce. Taken together with Holmes' later work, and viewed in light of American philosophy, these essays establish Holmes as the founder of a distinct approach to jurisprudence and reveal the implications of that approach for Holmes' later contributions to constitutional law. (shrink)

Neither ecologists nor economists can teach us what we most need to know about nature: how to value it. The Hebrew prophets claimed that there can be no intelligent human ecology except as people learn to use land justly and charitably. Lands do not flow with milk and honey for all unless and until justice rolls down like waters. What kind of planet ought we humans wish to have? One we resourcefully manage for our benefits? Or one we hold (...) in loving care? Science and economics can't teach us that; perhaps religion and ethics can. (shrink)

Invited response by Holmes Rolston, III, to the previous three articles in this issue of Environmental Values.

In what follows, I consider two influential views about distributive justice: democratic equality and luck egalitarianism. In examining and criticizing these views, I attempt to extract elements from each of them for what I take to be important to building a complete conception of distributive justice. I then present and defend my own view, deliberative democratic equality, a view that can be described as a hybrid account of luck egalitarianism and democratic equality.

Neither ecologists nor economists can teach us what we most need to know about nature: how to value it. The Hebrew prophets claimed that there can be no intelligent human ecology except as people learn to use land justly and charitably. Lands do not flow with milk and honey for all unless and until justice rolls down like waters. What kind of planet ought we humans wish to have? One we resourcefully manage for our benefits? Or one we hold (...) in loving care? Science and economics can't teach us that; perhaps religion and ethics can. (shrink)

Commentators of the judicial decisions of Justice Holmes have often situated the decisions inside the doctrines of freedom of expression and the rules and tests approach to legal analysis. This Paper situates his judgments in the context of a political theory. Drawing from his articles, lectures and correspondence, the Paper highlights Holmes’ reaction to the idealism and rationalism of the intellectual current before him. His view of human nature, conditioned by his war experience, is elaborated. The Paper (...) especially examines his theory of political struggle with the process-oriented view that the dominant social groups invariably become the political elite. The Paper then connects his theory of human nature to his legal doctrines, the role of the judiciary, the nature of the state, and a legal right. (shrink)

Aldo Leopold shot a wolf a hundred years ago, the most iconic wolf kill in conservation history, a shooting now historically confirmed, which three decades later he elevated into his “green fire” metaphor and symbol. There are tensions. Was Leopold a hypocrite? He spent the rest of his life hunting and trying to produce more game to kill. Thinking like a mountain, thinking big in the big outdoors, there is a dramatic shift of focus from a dying wolf’s eyes to (...) a land ethic. Thinking big enough, globally, Leopold saving wolves, or wilderness, or game management seems simplistic and parochial before global warming or environmental justice. Still, Leopold is on a moral frontier. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Critical Issues in Future Environmental EthicsHolmes Rolston III (bio)1. Sustainable development vs. sustainable biosphere. The question is whether to prioritize development within environmental constraints, or whether to prioritize a sustainable biosphere and work out a suitable economy within that priority. Sustainable development, likely to remain the favored model, is also likely to prove an umbrella concept that requires little but superficial agreement, bringing a constant illusion of [End Page (...) 139] consensus and glossing over deeper problems with a rhetorically engaging word. Everybody co-opts the idea and justifies their desired developments. Sustainability will prove to be a "metafix" that will unite everybody including industrialists, subsistence farmers, fair-wage social workers, riverkeepers, wildlife lovers, economists, and politicians—all of whom wish to have their cake and eat it too.2. In tension with this, a "sustainable biosphere" model demands a baseline quality of environment, with the economy worked out "within" such quality of life in a quality environment (clean air, water, stable soils, attractive residential landscapes, forests, mountains, rivers, rural lands, parks, wildlands, wildlife, renewable resources). Development is desired, but even more, society must learn to live within the carrying capacity of its landscapes. The fundamental flaw in "sustainable development" is that it sees the Earth as a resource only.3. Global warming. Global warming is a threat of the greatest magnitude, involving an unprecedented convergence of complexities, natural and technological uncertainties, global and local interactions, and difficult scientific, ethical, political, and social choices. There are cross-cultural issues, intergenerational issues, distributional issues, concerns about merit, justice, benevolence, and about voluntary and involuntary risk. There is a long lag time from decades to hundreds of years. Surely but gradually, local "goods" cumulate into global "bads". There are opportunities for denial, procrastination, self-deception, hypocrisy, free-riding, cheating, and corruption. Individual and national self-interests are at odds with collective global interests. This is the "tragedy of the commons" now taken at the pitch.4. Biodiversity. Charismatic megafauna is likely to disappear, except in pockets. Conservation plans will increasingly need to incorporate local communities and governments in developing nations which are too unstable (if not corrupt) to insure long-range conservation. Fauna and flora generally are likely to become increasingly depauperate, due to development, pollution, ignorance, and disinterest outside of native-range industrial, medical, and agricultural resource benefits. The planet is likely to become less diverse, warmer, increasingly trashy, and weedy.5. Escalating populations, escalating consumption, maldistribution. [End Page 140] These are three main global problems (drivingfor instance, global warming and depauperate fauna and flora). Global capitalism has no intrinsic capacities to solve these problems. A major problem is that products and capital move freely across national boundaries, but labor cannot, resulting in exploitation of cheaper labor. In addition to the human misfortunes produced by this system, such exploited peoples will progressively degrade their environments. As a result, both rich and poor will jeopardize both sustainability and conservation.6. The "enough" problem. Humans have long been driven by desires to increase security and wealth. Humans have Pleistocene appetites for salt, sugar, fat, sex, and to maximize our short-term security for self and kin, and perhaps tribe. Without such concerns, people did not make it through winter. So humans always want more in order to make us more secure—more pay, bigger houses, better health, more preferences satisfied, more comfort, economic and national security. For all of human history, we have been pushing back limits.7. Especially in the West, we have lived with a deep-seated belief that life will get better, that one should hope for abundance, and work toward obtaining it. In the West we have built this into our concept of human rights—a right to self-development, to self-realization. But such an egalitarian ethic scales everybody up and drives an unsustainable world.8. Humans are not well equipped to deal with the sorts of global level problems we now face. The classical institutions—family, village, tribe, nation, agriculture, industry, law, and medicine—have shorter horizons. Humans have no evolutionary ability to deal with long-range problems on world scales. Many biologists think we are incapable of doing this at the ranges now demanded. A... (shrink)

This paper discusses the link between pharmacogenetics and race, and the global justice issues that the introduction of pharmacogenetics in pharmaceutical research and clinical practice will raise. First, it briefly outlines the likely impact of pharmacogenetics on pharmaceutical research and clinical practice within the next five to ten years and then explores the link between pharmacogenetic traits and ‘race’. It is shown that any link between apparent race and pharmacogenetics is problematic and that race cannot be used as a (...) proxy for pharmacogenetic knowledge. The final section considers the implications of the development of pharmacogenetics for health care systems in low‐ and middle‐income countries. (shrink)

One of the ways in which public health officials control outbreaks of epidemic disease is by attempting to control the situations in which the infectious agent can spread. This may include isolation of infected persons, quarantine of persons who may be infected and detention of persons who are present in or have entered premises where infected persons are being treated. Most who have analysed such measures think that the restrictions in liberty they entail and the detriments in welfare they impose (...) can be justified and this paper proceeds from the assumption that detention measures are justifiable in some circumstances. Such measures are often implemented without any compensation being given to the persons who are detained. This raises the question: What do we owe to those whose liberty is justifiably restricted (e.g. through isolation, quarantine or detention) as a public health measure during a public health emergency? More specifically, do we owe them compensation for any losses they experience? The paper falls in four main sections. The first section provides examples of the current regulatory state of affairs from the US, Canada and WHO. The second section lays out the liberal, welfarist and pragmatic arguments for providing compensation. The third section discusses the arguments against compensation and the fourth and final section provides the conclusion. It is argued that the arguments for providing compensation clearly outweigh the counterarguments and that the default public policy therefore should be that compensation is provided. (shrink)

The Principles of Biomedical Ethics by Beauchamp and Childress is a classic in the field of medical ethics. The first edition was published in 1979 and “unleashed” the four principles of respect for autonomy, non-maleficence, beneficence, and justice on the newly emerging field. These principles were argued to be mid-level principles mediating between high-level moral theory and low-level common morality, and they immediately became very popular in writings about medical ethics. Over the years Beauchamp and Childress have developed this (...) approach and vigorously defended it against the various criticisms that have been raised. The 5th edition of this book is, as all the …. (shrink)

In his dissent in the Abrams case (November 1919), U.S. Supreme Court Justice Oliver W. Holmes coined the metaphor of a “free trade in ideas” to justify stronger free speech guarantees. This epistemic argument for free speech, later turned into the notion of a “marketplace of ideas,” became a powerful normative and interpretive rationale of expressive freedoms. However, before the Abrams dissent, Holmes was far from being a champion of free speech. As late as the spring of (...) 1919, he had upheld the constitutionality of repressive wartime legislation. Thus, the summer of 1919 is a major turning point in Holmes's views. This article focuses on the role of the young Harold Laski during these months, examining his book recommendations to the Justice. Insisting on the truth-seeking functions of expressive freedoms, Laski's books pointed argument which is found in the Abrams dissent. I also consider additional reasons for Holmes's change of mind, particularly how the “First Red Scare” affected Laski and other civil rights activists. Lastly, the article reflects on what the Laski-Holmes relationship may tell us regarding the later assimilation of the Abrams dissent and the “marketplace of ideas” as core elements of a long-term libertarian tradition of free speech. (shrink)

The UNCED Earth Summit established two new principles of international justice: an equitable international order and protection of the environment. UNCED was a significant symbol, a morality play about environment and economics. Wealth is asymmetrically distributed; approximately one-fifth of the world (the G-7 nations) produces and consumes four-fifths of goods and services; four-fifths (the G-77 nations) get one-fifth. This distribution can be interpreted as both an earnings differential and as exploitation. Responses may require justice or charity, producing and (...) sharing. Natural and national resources come into tension with the common heritage of humankind, exemplified in disputes about. who owns biodiversity resources. Ethics has to learn planetary home economics. (shrink)

A problem of paramount importance to understanding John Dewey’s ethics is to clarify his conception of judgment and his distinction between judgments and propositions. Depending upon how one interprets him on this matter, different answers suggest themselves to some of the most basic questions underlying his ethical theory, particularly those dealing with the relationship between science and ethics, the relationship between practical judgments and descriptive statements, and the differentiae of moral and scientific judgments within the genus practical judgment. Oversimplified answers (...) are usually given to these, the stock interpretation being that he believes that ethics is reducible to science, that practical judgments are descriptive and hence that moral judgments are essentially scientific in nature. Although he undeniably says much to invite such an interpretation, it nonetheless fails to do justice to his considered view, and a probe of his account of the nature of judgments and propositions reveals that he views the whole relationship of moral to scientific judgments, hence of ethics to science, in a different light than is generally supposed. In consequence, much of his ethics needs reappraisal, particularly as having relevance to topics in the forefront of contemporary British and American ethical thought. (shrink)

In many European countries, the introduction of private hospitals into predominantly public health systems has raised serious questions of distributive justice about access to care and the extent of acceptable inequalities.

This paper describes the present resource allocation problems in the Danish tax-based public health care system and presents an analysis of the two policy options put forward as a solution to these problems: (1) explicit rationing of services, and (2) the introduction of two-tiered health care. It is argued that a two-tiered system with a private second tier is unlikely to be acceptable and viable in Denmark, whereas an introduction of a second tier within the public system may be more (...) acceptable. It is further argued that present implicit rationing methods may be unethical and ought to be replaced by explicit rationing. Keywords: justice, resource allocation, two-tiered health care CiteULike Connotea Del.icio.us What's this? (shrink)

I AM glad that Dr. Fotheringham in the interesting paper which appeared in the Classical Quarterly adhered to the view that ‘Caesar calculated the new moon for January 1 [45 B.C]…and that this calculation determined the inaugural day of the Julian calendar.’ As the object of my brief note, on which he commented, was merely to show that Groebe had failed to prove that the day in question was January 2, I have only a few questions to ask. But first, (...) in justice to Judeich, I ought to say that his calculations, which Dr. Fotheringham notices, were made with the help of the assistant-astronomer attached to the observatory of the University of Strassburg. While Dr. Fotheringham admits that I was right in maintaining that the new moon of January 2, 45 B.C. was not visible on the evening of that day, he holds that Groebe was ‘fairly entitled to say’ that the new moon of March 24, 58 B.C. , was visible on March 25. Dr. Fotheringham may be justified in saying that it ought ‘in normal [or abnormally fine ?] weather to have been visible that evening’; but, as I observed in my note, Groebe affirmed that in calculating the time of visibility of the crescent we should accept the mean of the Babylonian estimates, 36 hours—less, I should have added, in the early spring and the winter, more in the summer and autumn. Was he entitled to deduct 9 hours from the mean for an observation made not in the clear atmosphere of the East, but in Switzerland? Dr. Fotheringham tells us that ‘the shortest interval between a new moon and the observation of the moon by Schmidt's naked eye comes’ not, as Groebe said, to 29, but ‘to 25.7 hours.’ But forty-eight of Schmidt's forty-nine observations were made at Athens, where the atmosphere is clearer than in Switzerland. The great difference in visibility which a clear atmosphere makes must strike everyone who goes from this country or from Switzerland to the East or to Northern Africa. I realized it for the first time when I was exploring in Tunisia before the war. Has Dr. Fotheringham or any other trustworthy observer ever seen with the naked eye in an atmosphere no clearer than that of Geneva a moon not more than 27 hours old? If so, is it not remarkable that, as Dr. Fotheringham has said, ‘Hitherto it has been the practice to assume that [in the early spring or the winter and in favourable weather ?] the moon becomes visible on the first evening when she is more than 30 hours old at sunset’? (shrink)

Around the world the wealthy can get their lives extended while the poorget little basic medical help. Over the same years that the field ofbioethics has prospered and expanded, this disparity has increased.Reasons for the failure of bioethics to successfully address thishealth/wealth issue include its identification with the cognitiveand social authority of medicine; its gatekeeping behavior;its funding sources; its questionable use of ``principlism'' andits emphasis on crises and dilemmas to the neglect of ``housekeeping''issues. The work of most women in bioethics (...) rarely addresses thehealth/wealth issue; if it does, their work may be ignored, aswere the recommendations of Canadian feminists working under governmentgrants. To achieve equity in health care, the structure of both medicineand bioethics needs to be changed. Yet, since bioethicists generallyhave accepted the status quo, this seems unlikely to happen. (shrink)

Philosophy and Kafka is a collection of original essays interrogating the relationship of literature and philosophy. The essays either discuss specific philosophical commentaries on Kafka’s work, consider the possible relevance of certain philosophical outlooks for examining Kafka’s writings, or examine Kafka’s writings in terms of a specific philosophical theme, such as communication and subjectivity, language and meaning, knowledge and truth, the human/animal divide, justice, and freedom.

Quality improvement (QI) is fundamental to maintaining high standards of health care. Significant debate exists concerning the necessity for an ethical approval system for those QI projects that push the boundaries, appearing more similar to research than QI. The authors discuss this issue identifying the core ethical issues in family medicine (FM), drawing upon the fundamental principles of medical ethics, including principles of autonomy, utility, justice and non-maleficence. Recent debate concerning the application of QI ethics boards is discussed with (...) relevance to primary care and issues such as general practitioner (GP) intentions, the impact of QI on patients and the use of confidential patient data and the impact of dissemination. The authors conclude that a system of QI ethical approval leaves many issues unresolved and potentially creates several barriers to implementing QI. To ensure ethical QI work is generated within FM it is essential for GPs to learn about and engage in more ethical reflection so that they can better judge and resolve these issues. (shrink)