ABSTRACTFormal representations of lawyer–client relations are often characterised by their regulative aspects, including codes of ethics and practice. In this article I look inside the relationship by returning to the sociology of Georg Simmel, who closely examined the basic units of sociality, especially dyads and triads. Using examples drawn from empirical research on corporate lawyers and clients and banks, I open up the lawyer/client dyad and show that in most cases the practices of lawyers and banks add noise (...) and interference to the relationship. The reason is that in many situations the basic unit of analysis for lawyer–client relationships should be the triad rather than the dyad. Whereas dyads are fundamentally stable, triads are the reverse, as they allow for alliances and defections creating permanent uncertainty. I take a number of examples where clients suffered in the alliances formed between their lawyers and the banks, leaving them on the periphery. It is time to recast the lawyer–client re... (shrink)

Lawyering for the Rule of Law introduces a new model of government lawyering in which government lawyers function as an ancillary mechanism that enables the court to expand its influence on policy-making within the political branches by forming out-of-court settlements. It discusses the centrality of government lawyers with regard to judicial mobilization and the enforcement of social reforms through adjudication, and sheds light on particular functions of government lawyers as adjudicators and facilitators of institutional arrangements. It also discusses the ethical (...) and professional dilemmas of government lawyers in judicial review and the relationship between lawyers' professional morality and outcomes in litigation. (shrink)

This collection of original essays by leading and emerging scholars in the field examines the history, conditions, organization, and strategies of pro bono lawyering. Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession traces the rise and impact of the American Bar Association's campaign to hold lawyers accountable for a commitment to public service and to encourage public service within law schools. Combining empirical legal research with reflections by practitioners and theorists about the (...) meaning and practice of pro bono legal work, this collection of essays interrogates the public service ideals that are inscribed within the legal profession and places these ideals within a broader social, economic, ideological, and normative context. Particular attention is paid to the factors that explain why lawyers engage in pro bono work and the ways in which their views of pro bono are mediated by the institutional context of their legal practice. The book also explores the concept of "public" in public service and compares pro bono as a means of delivering legal services with other mechanisms such as state funding. Collectively, these essays investigate the evolving role of pro bono in the legal profession and in law schools, the relationship between pro bono ideals and pro bono in practice, the way that pro bono is shaped by external forces beyond the individual practitioner, and the multi-faceted nature of legal professionalism as expressed through pro bono practice. (shrink)

Legal practice is both a profession and, increasingly, a business. Lawyers are routinely confronted with a complex set of ethical questions due to the adversarial nature of legal practice and justice, and at the same time handle relationships with different stakeholders within their own practice, including clients, partners, and managers. This presents a unique set of challenges that are not experienced in other professions. This book provides a framework to guide the practicing lawyer through these various levels of (...) ethical complexity. Written in a highly accessible style, The Lawyer's Guide to Business Ethics transforms business ethics theory for the practice of law, identifying the unique applications and ways in which lawyers can utilize the theory and principles to enhance their decision making and case management techniques. The book examines the social, ethical, personal, and economic forces influencing lawyers' work, explains the rules of professional conduct, and presents real-life ethical dilemmas to enhance learning and to assist in finding appropriate outcomes. This book will be an invaluable resource for legal practitioners, law students and business students, and anyone interested in maintaining ethical behavior in the practice of law. (shrink)

Roles and values -- Institutions and organisations -- Regulation and discipline -- The relationship -- Conflicts of interest -- Confidentiality and privilege -- Thir parties (non-clients) -- Social responsibility -- Professional responsibility -- Litigation and advocacy -- Settlement -- Commercial practice.

When a health care professional contacts a health care attorney for advice about how to deal with a medical error involving a patient, what is the most ethically appropriate response? Honesty is the best policy; the ethical health lawyer should advise the client to tell the patient the truth. This advice is neither naïve nor impractical, as we will show. More importantly, it is without question the right thing to do for a number of sound reasons. It may not (...) be a natural inclination or an easy task to accomplish; several countervailing factors discourage health professionals from telling patients the truth about medical errors. However, we will argue that resistance to truthful disclosure can and should be overcome by rational arguments that also take into consideration the psychodynamics of the patient-health professional relationship. (shrink)

Both the Kevelson Seminar topic, ‘Lawyers as Makers of Meaning,’ and the appearance of a highly-publicized television series in the United States dedicated to the life of President John Adams (1735–1826) invite inquiry into Adams’ role as a lawyer who shaped the meaning of the American Revolution (and his role in bringing it about). Three trials from Adams’ early legal career illustrate that he presented both himself and fellow resistance leader James Otis, Jr., as heroic loners struggling for the (...) rights of Americans against British injustice. Although he did not call it that, in 1970 lawyer and future Massachusetts Superior Court Justice Hiller Zobel, in his book The Boston Massacre, undertook what we would consider a semiotic approach that investigated the relevant codes and contexts—both the legal complexities and the audiences, other lawyers, judges, and posterity about which Adams spoke, simplifying and minimizing their roles as he maximized his own (and Otis’s). Zobel’s own relationship with Adams’ legal career appeared in his own tenure on the bench, especially in the famous ‘Nanny’ (discussed by Denis Brion, in this issue) case in which he explicitly presented the Boston Massacre Trials as a relevant precedent. Despite Adams’ willingness to subordinate his clients’ welfare to the patriot cause early in his career, it can be argued that HBO television and historian David McCullough, by presenting him to the public only flawed by his outspoken, stubborn honesty, have nevertheless performed a public service. Their version of Adams offers Americans in the twenty-first century an alternative role model to the dishonest, ill-informed politicians who use public opinion polls rather than political theory, moral philosophy, and historical knowledge as the basis of their decisions. (shrink)

This collection cuts across conventional disciplinary boundaries to address the roles, responsibilities, and regulation of contemporary lawyers. Contributors address common concerns from diverse perspectives, including philosophy, psychology, economics, political science, and organisational behaviour. Topics include the nature of professions, the structure of practice, the constraints of an adversarial system, the attorney-client relationship, the practical value of moral theory, the role of race and gender, and the public service responsibilities of lawyers and law students.

This article examines the sexist work experiences of a sample of women lawyers in a mediumsized midwestern city. Specifically, it focuses on reports of discrimination, gender disparagement, and sexual harassment as components of gendered systems that maintain and reinforce inequalities between men and women on the job. The relationships between these experiences, professional role orientation and structural work characteristics are explored. Respondents report lower levels of discrimination at the more visible and legally protected “front door” than on the job. (...) For the most part, private sector employees and those in token positions report higher levels of sexist behavior. Contrary to expectations, those with careerist orientations report more sexual harassment. The interrelations and implications of these findings for women's careers in the law are discussed. (shrink)

Stephen L. Pepper argues that lawyers and clients often act together in ways that their moral convictions would prevent them from acting individually. In an attempt to address this problem, I explore the nature of the attorney's responsibility to help her client reach autonomous decisions. To do this, I review the work of some prominent medical ethicists on a parallel to Pepper's problem in doctor-patient relationships.

In lieu of an abstract, here is a brief excerpt of the content:The Relationship between Theology and Canon Law: Another Context of Political Thought in the Early Fourteenth CenturyTakashi ShogimenPolitical thought and ecclesiology in the early fourteenth century have often been assessed as a series of responses to the question of the relationship between church and state. The conflict between Pope Boniface VIII and Philippe IV at the turn of the thirteenth and fourteenth centuries acutely demonstrated the conflict between the (...) spiritual and temporal powers. The conflict between Pope John XXII and the claimant to the imperial throne, Ludwig of Bavaria, also seems to have formed the historical background against which contemporary intellectuals expounded their political and ecclesiological thought. Two recent excellent textbooks on medieval political thought discussed the early fourteenth century from such a perspective and situated Marsilius of Padua and William of Ockham, along with their papalist adversaries, in this context. 1It is indeed a fair treatment of the period; however, it is not the only legitimate perspective. For instance, an alternative perspective can be developed through an examination of the Poverty Controversy between Pope John XXII and the Franciscans. This dogmatic dispute over the question of whether Christ and the apostles did not own anything individually or communally had a political dimension: it involved discussions on the nature of papal power over the church and resulted in the refinement of the idea of natural rights. 2 The dichotomy [End Page 417] between the papal and imperial camps can also mislead historical interpretation if the fact that each camp was not monolithic is overlooked. Just as Marsilius and Ockham embraced different political views in the alleged imperial camp, so the alleged papal ideologists did not always share the same views. It has even been argued that the doctrines propounded by “papalists” and “anti-papalists” were not irreconcilable but differed only in emphasis. 3 It is easy to see that the problem of Church and State is not the all-embracing concern of the period.What, then, are the possible benchmarks against which we can evaluate the political views of contemporary thinkers? This paper is intended to suggest that there is another context against which political thought and ecclesiology in the early fourteenth century may be assessed: that is, the relationship between theology and canon law. The contemporary polemicists’ view on the role that theology and canon law should play in an ecclesiastical dispute such as the Poverty Controversy largely determined their political or ecclesiological perspectives. To show this, I should like to compare, in the context of the poverty dispute, the ecclesiological views of two theologians in the so-called “papalist” and “anti-papalist” camps respectively: Guido Terreni and John Baconthorpe on the one hand, and William of Ockham and Michael of Cesena on the other. The comparison between Terreni and Baconthorpe will elucidate clearly that their contrasting attitude toward the role of canon law in contemporary ecclesiastical disputes determined the paradigms of their ecclesiologies, resulting in two entirely different ecclesiologies, save the fact that they were both aimed at defending the position of Pope John XXII on Franciscan poverty. The comparison between Ockham and Michael of Cesena will reveal how their contrasting views on the nature of the Poverty Controversy—theological or canonistic—determined not only the pattern of their defense of the Franciscan doctrine of poverty but also the development of their polemics.The relationship between theology and canon law had been a perennial problem ever since the latter had grown into an independent discipline. Scholastic theologians in the thirteenth century were critical of canon law studies. Bonaventure, for example, affirmed theology’s superiority over canon law: he wrote that theology questioned propter quid, whereas canon law enquired into [End Page 418] quia. Bonaventure, following Aristotle, asserted that there are higher and lower sciences, and what for the higher science, theology, is the conclusion of its enquiry is for the lower science, canon law, its starting point. 4 Thomas Aquinas considered that the intrusion of the decretalists into theological matters was disagreeable and ridiculous, 5 as did Roger Bacon. 6 These theologians’ comments testify to the antagonism between theologians and canonists in the thirteenth century. Lawyers, too, were fully aware of this situation, as seen... (shrink)

Descriptions of the relationship between lawyers and journalists range from 'uneasy' and 'sometimes prickly' to 'strained and often combatant.' This paper explores the ethical frameworks within which lawyers and journalists work and analyses the differences between the two, especially in the context of court reporting. It begins with a consideration of whether or not journalists are members of a profession, recognising that one marker of a profession is the existence of an ethical code. The codes of ethics of both lawyers (...) and journalists are compared and contrasted. The ethical frameworks are also superimposed over two fundamental but competing principles of justice in a Western democracy: the principle of open justice and the right to a fair trial. The struggle to reconcile these two principles creates tensions between lawyers and journalists. Finally, the paper examines the ethical principles which guide lawyers' interactions with journalists. The author concludes that the fundamental difference between lawyers and journalists lies in the journalist's lack of a client. In lacking a fiduciary duty to a client, the lens through which a journalist views court reporting is never going to match in focus with the view of the lawyer, whose duties to both an individual client and the court itself will inevitably clash with a journalist whose aim is to disseminate information, as quickly as possible, to a faceless public. (shrink)

ABSTRACTThis paper examines in detail the quality of the relationship the Catholic Church in its Sydney Archdiocese had with its lawyers in the John Ellis matter as revealed in the Royal Commission into Institutional Responses to Child Sexual Abuse inquiry. It identifies the particular moral perspective embedded in its lawyers' adversarial approach and asks whether a different approach involving explicit moral conversations might have better served the Church's avowed pastoral ethos.

This paper takes as its starting point the phenomenon of young lawyers in ethical crisis. The teaching of ethics in the classroom and the ethos and environment of the law firm have created dissonance: knowing what it is right to do but being unable to do it. In examining this phenomenon, we develop the idea of commitment as a source of duty, loyalty, and courage that enables someone to accept and overcome reluctance to act ethically. Our conceptual framework combines two (...) models: Fineman’s radical view that vulnerability is universal, but ameliorated by the assets available to the individual, and Rest’s four component model that provides a taxonomy of precursors for ethical action and resilience. We consider how the structures and the relationships between law schools, regulators and law firms, acting in combination, support or degrade ethical resilience and development of a commitment to ethical action. We close by considering how changes to the structure planned by one regulator in England and Wales deplete the assets available to the young lawyer and thereby the profession. (shrink)

Global trends increasingly appear to be legitimizing same-gender relationships, yet international research shows that despite statutory rights to marry—and by extension, adopt children—same-gender couples continue to experience difficulties when trying to adopt. Primary among these barriers are the persistent heteronormative beliefs, which strongly underpin the unfounded myths about parenting abilities of same-gender couples. Such biased beliefs are perpetuated by some adoption professionals who oppose placing children with lesbian or gay couples. In 2013, New Zealand passed the Marriage Equality Act, (...) making it possible for same-gender couples to legally marry—and by extension, adopt. This provided an opportunity to investigate the perceptions of New Zealand professionals about children being placed with same-gender couples, in a country often perceived to be more tolerant of LGBT people. New Zealand social workers and lawyers (an under-studied group)—the professions most likely involved in adoption—were recruited via professional bodies. Because studying perceptions and beliefs on socially sensitive topics are highly susceptible to social desirability, we designed an instrument utilizing multiple methods to assess and corroborate participants’ views about placing children for adoption with couples of the same gender. Administered online and anonymously, the survey included demographic questions, evaluation of negative-meaning and positive-meaning statements, and used a sc... (shrink)

Legal domains concerned with deception often recognize and regulate cases of negligent deception. The philosophical discussion of deception should follow suit, shifting from an exclusive focus on deception-as-wrongful-manipulation to a broader panorama that includes negligent deception and contemplates cases in which negligent deception may be wrong even when intentional deception about the same information may be permissible. Interesting philosophical questions then arise about what distinguishes negligent deception from mere misunderstandings and mistakes. Those questions require further thought about how relationships (...) involve epistemic cooperation and interdependence, and when such relationships generate responsibility for others’ mental contents. (shrink)

In Regina v. Murray, (2000, Ont S.Ct.J.) the learned trial judge, Justice Gravely, errs in his interpretation and application of the law of mens rea in the offense of willfully attempting to obstruct justice under section 139(2) of the Criminal Code of Canada. In view of his findings of fact and law, including the determination that the accused knowingly and intentionally committed the actus reus of the offense and the absence of any suggestion that he lacked awareness of any relevant (...) facts, there is no question in law but that Kenneth Murray was liable to be, and actually should have been, convicted. Nonetheless, the trial judge concluded that Murray’s alleged belief, that his actions were required by his duty to his client, raised a reasonable doubt about his intention to obstruct justice and entitled him to be acquitted. -/- In his reasons for judgment, the trial judge analyzes mens rea as if there is a “color of right” defense to the offense of obstruction of justice. In law, however, no such defense exists to this offense. Consequently, even if Mr. Murray did “honestly believe” that he had a duty to his client not to disclose the existence of the video tapes, that belief could not provide him with an exculpatory defence. In Canada, pursuant to common law and section 19 of the Criminal Code, mistakes of law do not excuse accused persons from responsibility for criminal conduct in the absence of a statutory exception. No exception exists for the offense of obstruction of justice. Yet the Crown did not choose to appeal and thereby signaled its acceptance of the legal analysis adopted by the trial judge. By contrast, if the analysis proposed in this piece had been adopted, the Crown should have prevailed at trial and, if unsuccessful at trial, would have had a right of appeal on a question of law. -/- At least two tendencies converge as significant influences shaping the outcome in the Murray case. The central tendency, discussed in Part I of this article, is the trial judge’s treatment of the accused’s alleged mistake about his legal duty as if it were a mistake about a question of fact which therefore could give rise to a reasonable doubt about intention or culpable awareness. This approach to mistaken beliefs ignores the distinction between mistakes of law and mistakes of fact, and then characterizes all mistakes as mistakes of fact. Unfortunately, this is not uncommon in the case law. In recent years however, as explained below, the judiciary has rejected that approach in a number of leading cases and ruled that mistakes which are actually mistakes about the meaning, scope, or application of the law are subject to the general rule and do not provide an accused with an exculpatory defense. The relationship between mistake of law and mens rea in Canadian criminal law has also been the subject of critical scholarly comment in Canada in recent years. The Murray decision provides evidence that, despite clarification by the Supreme Court, in some lower courts the unrefined approach to mistaken belief continues to shape the legal analysis of criminal culpability, even when the mistaken belief is overtly a belief about the law. This will not change until the proper characterization of mistaken beliefs as legal or factual becomes a deliberate and common-place aspect of case analysis at the trial court level. -/- The other tendency, discussed in Part III of this article, is one that often appears as a companion to the first - the judicial tendency to perceive and invoke analytical legal ambiguity in favour of accuseds more readily in cases in which the impugned conduct involves the discretionary exercise of authority which, when used appropriately, is fully legitimate and essential to the normal functioning of the existing socio-legal order. Of course, courts are strongly influenced by the arguments put to them by counsel. And counsel, acting on behalf of client groups with particular group interests may, consciously or unconsciously, favour the development of those lines of analysis which are protective of that interest or associated institutional interests. One of the reasons for scrutinizing the Murray case is that it provides a concrete context for discussion of those issues in relation to an actual decision made by Crown prosecutors. The case provides an occasion to examine a specific example of the exercise of prosecutorial discretion, its implications for the administration of criminal justice, and its broader potential impact on the public interest. [See also errata in UNBLJ 2002 volume 52 at pp 309-310.]. (shrink)

Communicating genetic information to family members has been the subject of an extensive debate recently in bioethics and law. In this context, the extent of the relatives’ right to know and not to know is examined. The mainstream in the bioethical literature adopts a liberal perception of patient autonomy and offers a utilitarian mechanism for solving familial tensions over genetic information. This reflects a patient-centred approach in which disclosure without consent is justified only to prevent serious harm or death to (...) others. Based on a legal and bioethical analysis on the one hand, and an examination of empirical studies on the other, this paper advocates the adoption of a relational perception of autonomy, which, in the context of genetics, takes into account the effect that any decision—whether to disclose or not to disclose—will have on the familial relationship and the dynamics of the particular family. Adding this factor to the criteria usually advocated by lawyers and ethicists will facilitate reaching a sensitive decision, which recognises the various interests of family members beyond the risk to physical health. Taking this factor into account will require a process of deliberation both between doctors and patients, and in the family. It will also require a relaxation of medical confidentiality, as the family rather than the patient is gradually perceived as the unit of care. Moreover, adopting such a relational approach will accord with current views of doctors and patients who base their decision primarily on the nature of the familial relationship. (shrink)

This paper examines how the application of legal fiduciary principles , can serve as a framework to promote management of clinical genomic “incidental” or secondary target findings that is patient-centered and consistent with recognized patient autonomy rights. The application of fiduciary principles to the clinical genomic testing context gives rise to at least four physician fiduciary duties in conflict with recent recommendations by the American College of Medical Genetics and Genomics . These recommendations have generated much debate among lawyers, clinicians, (...) and bioethicists hence I believe this publication will be of value and interest to your readership. (shrink)

Lawyers and the legal system have been much criticized in recent years. Despite popular perceptions, the legal system contains numerous mechanisms and rules designed to ensure fair results. This paper shows how the legal system tries to implement, in commercial transactions, the ethical principles of truthfulness and fairness. The Anglo-American development of Equity Courts is reviewed briefly. Several examples of the Law's enforcement of ethical principles are presented, in four different legal areas: Contracts, Securities, Goods, and Real Estate. The intent (...) here is to present an overview of the problem, with area-specific illustrations, rather than a comprehenisve examination of the cases in just one area. (shrink)

Lawyers and the legal system have been much criticized in recent years. Despite popular perceptions, the legal system contains numerous mechanisms and rules designed to ensure fair results. This paper shows how the legal system tries to implement, in commercial transactions, the ethical principles of truthfulness and fairness. The Anglo-American development of Equity Courts is reviewed briefly. Several examples of the Law's enforcement of ethical principles are presented, in four different legal areas: Contracts, Securities, Goods, and Real Estate. The intent (...) here is to present an overview of the problem, with area-specific illustrations, rather than a comprehenisve examination of the cases in just one area. (shrink)

To illustrate the development of argumentation theory, the paper traces the journey of the pragma-dialectical theory as it widened its scope, step by step, from an abstract model of critical discussion to the complexities of actual argumentative discourse. It describes how, having contextualized, empiricalized and formalized their approach, pragma-dialecticians are now putting the theory’s analytical instruments to good use in identifying prototypical argumentative patterns in specific communicative activity types in the various communicative domains. This means that they can now start (...) answering the crucial question about the typical characteristics of their discourse asked by interested lawyers, politicians, academics and other practitioners of argumentation. (shrink)

This paper provides an empirical study of Italian ‘boutique law firms’. By building on seventeen semi-structured interviews with lawyers, the paper explores institutional, professional, and societal features of such firms and their lawyers. The article shows that, while the rise of large law firms triggered a partitioning of the Italian legal field in the past decades, more recently this small, but economically important, sector of the profession revived the classic model of delivering legal services characterised by a strong sense of (...) autonomy and independence, a client-centered but ethically robust approach to legal practice, a close relationship with academic and political environments, and a focus on projecting a professional image of themselves and their firms in society. These are, in other words, the last bastion of professionalism and are increasingly gaining an important role in the Italian field. (shrink)

Role of lawyer -- Regulation of lawyers -- Defining and forming the lawyer-client relationship -- Compensating lawyers -- Confidentiality -- Incompatible relations -- Representing organizations -- Duties to the court and others -- Advertising and solicitation -- Judicial conduct.

This paper provides an empirical study of Italian ‘boutique law firms’. By building on seventeen semi-structured interviews with lawyers, the paper explores institutional, professional, and societal features of such firms and their lawyers. The article shows that, while the rise of large law firms triggered a partitioning of the Italian legal field in the past decades, more recently this small, but economically important, sector of the profession revived the classic model of delivering legal services characterised by a strong sense of (...) autonomy and independence, a client-centered but ethically robust approach to legal practice, a close relationship with academic and political environments, and a focus on projecting a professional image of themselves and their firms in society. These are, in other words, the last bastion of professionalism and are increasingly gaining an important role in the Italian field. (shrink)

Our moral judgments are fallible, and we’re often uncertain what morality requires. I argue that, in the face of these challenges, it’s not only rational to use effective procedures for trying to be moral – we have a moral responsibility to do so, and being reckless when navigating moral uncertainty, is, itself, a form of moral wrongdoing. These strategic requirements present a large class of under-explored norms of morality. I use these norms to address moral and social questions concerning, for (...) example, interpersonal toleration, exceptions to moral rules in high-stakes cases, and principal-agent relationships (such as those between lawyers and clients). -/- (email for full text). (shrink)

This article examines disciplinary proceedings about sexual misconduct by lawyers. Sexual misconduct in a professional relationship is harmful and unacceptable and should result in immediate disciplinary action to protect victims, future victims and the public. However, there is no explicit offence of sexual misconduct in Australian disciplinary legislation regarding lawyers. Rather, sexual misconduct must be linked to the statutory offences. While the Australian Solicitors’ Conduct Rules guide the interpretation of the offences, there is only express reference to sexual harassment. We (...) examined tribunal and court legal disciplinary cases from 2000 to 2020 across all Australian jurisdictions in which sexual misconduct had occurred. Decision makers typically only considered sexual misconduct sufficiently egregious to meet the required standard of a disciplinary offence when accompanied by a criminal conviction. The conduct was often portrayed as a result of character flaws, rather than harmful to victims and the public. Thus, decision makers failed to locate the behaviour in the wider incidence of violence against women. The profession’s failure to acknowledge sexual misconduct reflects narrow professional norms which do not robustly protect victims. Explicit acknowledgement of sexual misconduct in disciplinary proceedings is essential. These amendments would signify the importance, frequency and impact of sexual misconduct. (shrink)

Lawyers who write about responsibility tend to focus on criminal law at the expense of civil and public law; while philosophers tend to treat responsibility as a moral concept,and either ignore the law or consider legal responsibility to be a more or less distorted reflection of its moral counterpart. This book aims to counteract both of these biases. By adopting a comparative institutional approach to the relationship between law and morality, it challenges the common view that morality stands to law (...) as critical standard to conventional practice. It shows how law and morality interact symbiotically, and how careful study of legal concepts of responsibility can add significantly to our understanding of responsibility more generally. Central to this project is a distinction between two paradigms of responsibility -- the criminal law paradigm and the civil law paradigm. Whereas theoretical discussions of responsibility tend focus on conduct and agency, taking account of civil law reveals the importance of outcomes and the interests of victims and society to ideas of responsibility. The book examines from a distinctively legal point of view central philosophical questions about responsibility such as its relationship with culpability (challenging the common view that moral responsibility requires fault), causation and personality. It explores the relevance of sanctions and problems of proof and enforcement to ideas of responsibility, as well as the relationship between responsibility and distributive justice, and the role of concepts of responsibility in public law. At the heart of this book lie two questions: what does it mean to say we are responsible? and, what are our responsibilities? Its aim is not to answer these questions but to challenge some traditional approaches to answering them and more importantly, to suggest fruitful alternative approaches that take law seriously. (shrink)

"Thinking like a lawyer" is a phrase familiar to every law student, and the development of these analytical skills are, of course, essential. In this essay, however, I reflect on the value of a more expansive approach to professional formation. I argue that legal education best serves students, the bar, and the society when it takes seriously the importance of moral imagination, interpersonal relationships, and personal wellness.

Lawyers tend to look to the law to resolve disputes and to create certainty about the rights and responsibilities of parties to relationships. There is a particularly acute need for certainty in the context of global trade in surrogacy services, both because of the number of parties who may be involved in creating familial relationships and because of the vulnerabilities created as a result of surrogacy arrangements. Participants in the Global Health Challenges conference were invited to consider to (...) what extent law is implicated in global health challenges — both in terms of how law might help to resolve the challenges, and, how law might contribute to or create these challenges. (shrink)

The main thesis of Scott Hershovitz's recent book is in its title: Law is a Moral Practice. By this, Hershovitz means that legal practices aim to adjust people's moral relationships (and generally succeed in doing so). He further thinks that lawyers' arguments in court concern the precise moral effect of legal practices on the moral relationships of the parties. They are, in other words, moral arguments that aim to identify the parties' moral relationships, which implies that the (...) rights and duties contested in court are moral rights and duties. To defend the thesis, Hershovitz focuses on cases or phenomena that seem best to fit the competing, nonmoral view, and show that, in spite of initial appearances, these too can be better accounted for by the moral practice view. This is a risky strategy for it does not allow for presenting the view at its strongest, and may encourage confusion over what the final position is. Indeed, it seems to me that Hershovitz ends up leaving an opening, an exit for his opponent that I think survives Hershovitz's arguments in favour of the moral practice view, and indicates that, in the end, the opponent has the better, more nuanced view. (shrink)

This book explores the relationship between the law and pervasive and persistent reasonable disagreement about justice. It reveals the central moral function and creative force of reasonable disagreement in and about the law and shows why and how lawyers and legal philosophers should take reasonable conflict more seriously. Even though the law should be regarded as the primary mode of settlement of our moral conflicts,it can, and should, also be the object and the forum of further moral conflicts. There is (...) more to the rule of law than convergence and determinacy and it is important therefore to question the importance of agreement in law and politics. By addressing in detail issues pertaining to the nature and sources of disagreement, its extent and significance, as well as the procedural, institutional and substantive responses to disagreement in the law and their legitimacy, this book suggests the value of a comprehensive approach to thinking about conflict, which until recently has been analysed in a compartmentalized way. It aims to provide a fully-fledged political morality of conflict by drawing on the analysis of topical jurisprudential questions in the new light of disagreement. Developing such a global theory of disagreement in the law should be read in the context of the broader effort of reconstructing a complete account of democratic law-making in pluralistic societies. The book will be of value not only to legal philosophers and constitutional theorists, but also to political and democratic theorists, as well as to all those interested in public decision-making in conditions of conflict. (shrink)

Issues concerning religion in the public sphere are rarely far from the headlines. As a result, scholars have paid increasing attention to religion. These scholars, however, have generally stayed within the confines of their own respective disciplines. To date there has been little contact between lawyers and sociologists. Religion, Law and Society explores whether, how and why law and religion should interact with the sociology of religion. It examines sociological and legal materials concerning religion in order to find out what (...) lawyers and sociologists can learn from each other. A groundbreaking, provocative and thought-provoking book, it is essential reading for lawyers, sociologists and all who are interested in the relationship between religion, law and society in the twenty-first century. (shrink)

This paper discusses the relationship between obesity, law, and public health preparedness as well as the relevant roles of public health practitioners, policymakers, and lawyers. Each group believes they have a unique role in this relationship although there can be overlap and/or lack of clarity as to what that role may be.The role of the lawyer in the public policy process is to identify relevant legal issues, to analyze them and give advice on the risks of taking a given (...) action, and to communicate legal advice in a clear manner. Simply put, the lawyer’s role is to dive deep into the law surrounding the topic at hand and to offer advice regarding the permissible limits of policymakers’ options and the associated risks. (shrink)

Low-Beer, a lawyer, Canadian federal politician, and poet, examines judgment as exercise, identifying the critical elements of the exercise of judgment and relating them to cognitive functions. He argues against relegating judgement to the realm of the subjective, and looks at the extent to which it can be learned and its reciprocal relationship to character. He concludes that the exercise of judgment is a defining characteristic of professionalism in the courts, the professions, politics, and commerce. For scholars and lay (...) readers. Annotation copyright by Book News, Inc., Portland, OR. (shrink)

The modern lawyer operates within a conception of law as a body of rules. To confront the law of contract, of torts, or of property, is to familiarize oneself with an intricate set of rules. Such familiarity is not yet legal scholarship, much less legal practice. For in order to use the rules as lawyers use them, the rules must be contemplated and considered, and the relationship between the different rules must be understood. Because the intellectual processes involved in (...) handling the rules exhibit a high degree of sophistication, those intellectual processes may themselves become the subject matter of philosophical argument. Thus we may regard jurisprudential theories as embodying differing understandings of the processes of handling legal rules; and we may conceive of legal theory as the attempt to grasp the moral significance of rules as a foundation for social order. This essay shall offer some thoughts on the relationship between the rule of law, considered as a moral ideal, and the notion of rules as the principal means by which legal order is manifested. (shrink)

Two challenges facing Archbishop John Bede Polding after arriving in Sydney in 1835 were providing for the spiritual needs of Catholics in the colony and managing their affairs in a way that attempted to guarantee a good working relationship with the government. It became apparent to Polding that education was fundamental in developing both these areas. Polding regarded education as a means of social advancement, beneficial to those 'on the lower steps of the social scale'. He wanted a 'native race (...) of priests and statesmen, of lawyers and physicians, of solicitors, and sailors, and artists'. He sought to emulate Downside Abbey's approach to education in Australia; specifically in the field of secondary education that would 'transcend the mere bread-and-butter preoccupations of the masses and prepare an 'elite' from among whom the offices of Church and state could eventually be filled'. Polding's goal was to create schools that would provide a Catholic education for its students founded on the principles of Benedictine ideals. But, as Francesca Fitz-Walter argues, it was the colonial conditions of the time that placed obstacles on Polding's expression of the Benedictine ideal in education. Given that the colonial conditions of the time imposed restrictions on the expression of the Benedictine ideal, Polding still maintained that a lifelong education was significant in developing in the student the ability to make an informed Christian response to whatever circumstance might emerge in the life of that person. (shrink)

Philosophers have never shied away from interrogating the nature of our obligations beyond borders. From Hobbes to the international lawyers Grotius, Pufendorf, Vattel, and of course Kant, modern philosophy has always attempted to define the nature and shape of a just international order, and the types of mutual obligations members of different political communities might share. In today's hyper-connected world, these issues are more important than ever and have been an impetus to a political theory with global scope and aspirations. (...) Global Political Theory offers a comprehensive and cutting-edge introduction to the moral aspects of global politics today. It addresses foundational aspects of global political theory such as the nature of human rights, the types of distributive obligations that we have toward distant others, the relationship between just war theory and global distributive justice, and the legitimacy of international law and global governance institutions. In addition, it features analyses of key applied moral debates in global politics, including the ethical aspects of climate change, the moral issues raised by the mobility of financial capital, the justness of different international trade regimes, and the implications of natural resource ownership for human welfare and democratic political rule. With contributions from leading scholars in the field, this accessible and lively book will be essential reading for students and teachers of political theory, philosophy and international relations. (shrink)

Physically frail, badly educated girls, brought up to lead useless lives as idle gentlewomen, married to dominant husbands, and relegated to "separate spheres" of life—these phrases have often been used to describe Victorian upper-middle-class women. M. Jeanne Peterson rejects such formulations and the received wisdom they embody in favor of a careful examination of Victorian ladies and their lives. Focusing on a network of urban professional families over three generations, this book examines the scope and quality of gentlewomen's education, their (...) physical lives, their relationship to money, their experience of family illness and death, and their relationships to men (brothers and friends as well as fathers and husbands). Peterson also examines the prominent place of work in the lives of these "leisured" Victorian ladies, both single and married. Far from idle, the mothers, wives, and daughters of Victorian clergymen, doctors, lawyers, university dons, and others were accomplished and productive members of society who made substantial public and private contributions to virtually every sphere of Victorian life. (shrink)

continent. 1.1 (2011): 27-32. “My”—what does this word designate? Not what belongs to me, but what I belong to,what contains my whole being, which is mine insofar as I belong to it. Søren Kierkegaard. The Seducer’s Diary . I can’t sleep till I devour you / And I’ll love you, if you let me… Marilyn Manson “Devour” The role of poetry in the relationalities between people has a long history—from epic poetry recounting tales of yore; to emotive lyric poetry; to (...) rude, irreverent limericks; to Hallmark cards which have ditties that allow one to cringe, and somehow fall in love at the same moment. Without going into a notion of aesthetics, or attempting to choose which form of poetry is superior, we might want to consider why the form of poetry itself has long been a part of relationality. And whilst doing so, we might always keep in mind that poetry—especially poetry that moves, transports us—is the form that Plato has been warning us about, particularly if we want to become good citizens.As Avital Ronell teaches us in Stupidity : the poet, irremediably split between exaltation and vulgarity, between the autonomy that produces the concept within intuition and the foolish earthly being, functions as a contaminant for philosophy—a being who at least since Plato, has been trying to read and master an eviction notice served by philosophy. The poet as genius continues to threaten and fascinate, menacing the philosopher with the beyond of knowledge. Philosophy cringes (287). And considering that the philosopher is the lover of wisdom, we might begin to ask ourselves why one lover is warning against another—if the philosopher is in love with wisdom, then is the poet perhaps his rival, his challenger, for that very love? For, one must also remember that Plato—through Socrates—mentions constantly that Homer is his favourite. Moreover, by adopting both his own voice, whilst mixing it with Socrates’, Plato is adopting the form of poetry that he warns most about—the warning almost serves more as a homage to poetry than anything else. Here, we might open the register that one of the main reasons that he ejects a particular kind of poet is on the grounds of effecting effeminacy on the populace—good poetry moves you, affects you, transports you, shifts you beyond reason, puts you “out of your mind.” However, Plato also teaches us that rhetoric in its highest form requires divine inspiration by way of the daemon, or the muse. This moment of divine intervention is one that seizes—perhaps even ceases—you; putting you “beyond yourself.” In other words, a good rhetorician must always already be open to the possibility of otherness—the same otherness that possibly resides in the feminine. One could also trace this back to the poet that he both loved, and feared, most—Homer. Perhaps the effect of effeminacy that Homer's poetry opened is precisely the source of its power: through listening to Homer, one's body, one’s habitus is opened to the possibility of the feminine. And here, one must remember that the source of all learning—and all teaching—also lies in mimesis, in repetition, in habit. Once the habitus is opened to the possibility of invasion, of intervention, of otherness, there is quite possibly no possibility of distinguishing whether the mimesis is that of reproduction, or if there is always already a productive aspect to it. And by extension, if learning cannot be controlled, the very notion of teaching itself is shifted from a master-student relationality to one where the master is potentially changed as well—the relationality between the master and the student is not only inter-changing, but one cannot even know who is teaching, or learning, at any point. All that can be said is that they are in a relationality; which means that one is ultimately unable to locate the locus of knowledge, of wisdom—the site of which Plato is attempting to convince us is the sole domain of the philosopher. And it is this that philosophy is cringing from. To compound matters, philosophy is striving for wisdom; which can only come from the Gods. In other words, this is a gift that has to be bestowed on them—and more than that, wisdom is always already exterior to one’s control and knowledge. At best, it is the role of one to recognise the gift, to answer the call as it were. Here, if we listen carefully, we can hear the echo of Alexander Graham Bell, and the telephone. And as we are attempting to respond to the call of wisdom—the call that both poetry and philosophy are listening out for—it might be helpful to recall the agreement between Alexander Graham Bell and his brother Melville. In the biography, Alexander Graham Bell and the Conquest of Solitude , Robert V. Bruce notes that Aleck and Melly made a “solemn compact that whichever of us should die first would endeavour to communication with the other if it were possible to do so” (63). Since Melville was the one who passed on first, this pact put the onus on Aleck to receive the call of his brother. If you take into consideration the fact that until Melville’s death, both brothers had been working on an early prototype of the telephone, the instrument of distant sound can be read as an attempt by Aleck to maintain the possibility of keeping in touch with Melly, of hearing the voice from beyond. However, this was a connection that was not premised on any knowing, reason, or rationality; it was rather, one that was based on hope, and born out of love. And here, if we eves-drop on a cross-line with The Telephone Book , we can pick up the voice of Avital Ronell once again and hear, “the connection to the other is a reading—not an interpretation, assimilation, or even a hermeneutic understanding, but a reading” (380). In other words, the telephone can be read as the openness to the possibility of responding to the other; one that might always remain unknown. Even in this day of caller-identification, we can never know for sure who the other person on the line is until we pick up: hence, the only decision we can make—the effects of which we remain blind to until it affects us—is to either pick up or not, to either respond or not. And it is not as if the decision to pick up comes without risks: each time we answer a call, we run the risk of it ruining our day. Even when we don’t know who the caller is, perhaps especially when we don’t know who the person on the other end of the line is—and here one only has to think of prank calls—we are leaving ourselves completely open to being affected by another. Thus, philosophy finds itself in the position of Vladimir and Estragon. Since they have no idea who Godot is, they can never know if or when he shows up—thus, if he (and we are taking his gender on the word of the boy, some boy—we don’t even know if it is the same boy—who comes round in the evening) has already come, they would not be in the position to know it. And even if someone comes to them and announces that “I am Godot,” the wait would not be over—without referentiality to the name, they would have to take on faith that that person is indeed Godot. Hence, all they can know is that they are waiting for Godot; and Godot is the name of that waiting itself. All philosophy can know is that it is waiting; and wisdom is the name of that waiting itself. Which brings us to Tina Turner’s eternal question, “what’s love got to do, got to do with it?” In order to begin to consider that, we have to first attempt to examine the notion of love itself. Perhaps we might begin to consider what the difficulty of the statement “I love you.” For, if love is a relationality between two persons—both of whom remain singular, and are attempting to respond to each other—this suggests that neither of them subsume the other under themselves. In other words, the other remains wholly other. If this is so, then the “you” in the statement always remains shrouded in mystery. And even if the “you” was replaced with the name of the person, the veiling remains: for, names refer both to the singularity that is the person, and also every other person bearing that name, at exactly the same time. To compound matters, the only time one has to utter a persons name is in their absence—thus, the correspondence of a name to that particular person is at best an affect of memory. And if we consider the notion of memory, we have to also open the register of forgetting—bringing along with it the problem that there is no object to forgetting. For instance, when one utters “I forgot,” all one is uttering is the fact that one has forgotten, and nothing more—the moment there is an object to the statement, one has strictly speaking remembered what one has forgotten. Moreover, we have no control over when forgetting happens to us. And since it is always already exterior to us, affects us, and has no necessary object, there is no reason to believe that every moment of memory might not bring with it a moment of forgetting. Hence, whenever we utter a name—even if we accept the correspondence between the utterance and the person in front of us—all we are doing is uttering the fact that we are naming. Thus, it is not so much that ‘a rose by any other name would smell as sweet’ but more appropriately, ‘a rose is a rose is a rose’—the relationality between its name and the phenomenon of its sweet smell can only be established after that moment of naming, that instance of catachresis. So, whenever one utters “I love you,” not only is it a performative statement, it is the very naming of that love—all you are doing is establishing a relationality between you and the other. And since there is no necessary referent—one is naming that referentiality as one utters it—this suggests that it is always already a symbolic statement; without which the mystery of the other cannot me maintained. In other words, one cannot love the other without maintaining this symbolic distance—through a ritual; in this case the utterance “I love you.” This might be why Valentine’s Day seems to provoke such a massive reaction: the most common one from people (besides florists) being, Valentine’s Day is mere commercialism. Those among the nay-sayers who maintain a soft spot for Karl Marx would proceed to call it the commodification of relationships; those who prefer the Gods would claim that the sanctity of relationships has been profaned; the gender theorists would note how the fact that males buy the gifts only serves to highlight the unequal power-relation between the genders. Whichever side and variation of the arguments they choose boils down to this: the discomfort lies in the fact that they are confronted with the notion of relationships moving into a mediated sphere. The underlying logic is that love is between two persons only; it should not only remain between them, but more pertinently, be an unmediated experience between two persons. Which of course completely misses the point. For, if we reopen the register that relationships are the result of a negotiation between two persons, there must then be a space between them for this very negotiation to occur. Otherwise, all that is happening is, one person is subsuming the other within their own sphere of understanding; effectively effacing the other. If that were the case, there would no longer be any relationality; all negotiation is gone and the other person is a mere extension of the self—one is in a masturbatory relationality with one’s imaginary. Hence, any relationship must always already carry with it the unknown, and possibly always unknowable. The other person is an enigma, remains—must remain—enigmatic to you. This is the only way in which the proclamation “I love you” remains singular, remains a love that is about the person as a singular person—and not merely about the qualities of the person, what the person is. For, if the mystery of the other is unveiled, then the love for the other person is also a completely transparent love: one that you can know thoroughly, calculate; a check-list. And if they are knowable, this suggests that they can also be negated, and hence, the love can also go away. Only when the love for the other person is an enigmatic one, one that cannot be understood, can that love potentially be an event—and if it is an event, then strictly speaking, it cannot be known before it happens; at best, it can be glimpsed as it is happening, or perhaps even only realised retrospectively. At the point in which it happens, it is a love that comes from elsewhere: this strange phenomenon is best captured in the colloquial phrase, I was struck by love;” or even more so by, “I was blinded by love.” This is a blinding to not only the subject of the encounter—the self—but also of the very object of that encounter, the “you”—all that can be said is that there is an encounter. And it is for this reason Cupid is blind: not just because love is random (and can happen to anyone at any time), but more importantly because even after it happens, both the reason you are in love, and the person you are in love with, remain blind to you. Since there is an unknowable relationality with the other person, the only way you can approach it is through a ritual. This is the lesson that religions have taught us: since one is never able to phenomenally experience the God(s), one has no choice but to approach them symbolically. These rituals are strictly speaking meaningless—the actual content is interchangeable—as it is the form that is important. Rituals allow us momentary glimpses at secrets; and secrets are never about their content(s). Rather, secrets entail the recognition that they are secrets; the secret lies in their form as secret. This can be seen when we consider how group secrets work: since the entire group knows the secret, clearly the content of the secret is not as important as the fact that only members within the group are privy to this secret. Occasionally the actual content can be so trivial that even other people outside the group might know the information; they just do not realize its significance. For instance, if I used my date of birth as my bank-account password, merely knowing when I was born would not instantly give you the key to my life savings. In order for that to happen, you would have had to recognise the significance of the knowledge of my birthday. This means that you have to know that you know something. Since the God(s) are, strictly speaking, unknowable, this suggests that rituals put one in a position to potentially experience the God(s). The meaningless gestures on Valentine’s Day play precisely this ritualised role. It is not so much what you give the other person, but the fact that you give it to them. The gift in this sense is very much akin to an offering; the gift opens the possibility of an exchange. Gift-giving does not guarantee that you will like what is returned; there is always a reciprocation of the gift, but what is returned to you is never known in advance, until the moment it is received. This means that the worst thing that one can do is not give the gift: that would be akin to a cutting off of all possibilities, a complete closing of all communication with the other person. This at the same time also means that you cannot wait for the other person to give you something before you get them their gift: if that were the scenario, the reciprocal gift would be nothing more than a calculated return. The only manner in which both persons can give true gifts is to offer them independently of the other person, whilst keeping them in mind. In this way, the two gifts are always already both uncalculated (in the sense of not knowing what the return is) and also a reciprocation for the other (without knowing whether the other person actually has a gift in the first place). Naturally, this would seem like an irrational, even stupid, way of buying gifts. But it is precisely the stupidity involved that saves the relationship from being banal—more importantly, stupidity prevents it from entering the mere profane. This is not to say that an enigmatic love cannot end—of course it can. However, the difference lies in the fact that if the relationality is wholly transparent, it is subsumed under reason—completely predictable, within the self, and thus never open to the possibility of otherness, exteriority, musing. A love that is an event is one that is also open to the possibility of the divine, the sacred—always already closer to the possibility of wisdom. If we establish that both love and wisdom are exterior, to our knowledge, and the finitude to our selves, this suggests that both are names for the possibility of openness to otherness. In other words, and what choice do we have here but to use the words of the other, the philosopher—the lover of wisdom—is a name for one who is waiting, and nothing more. But that still leaves us with the question of this uncomfortable relationality between philosophy and poetry. But before we address that question, we have to take a momentary detour, and consider the whether it is possible to call one a poet. For, if we take the notion of a poet to be one who reaches the highest levels of rhetoric (beyond the lawyer, and the orator, who only aim to either please the crowds, or convince by way of sophistry), then we must also acknowledge that one can only become a poet at the moment of seizing, the point of inspiration, by the muses. Without this divine moment, all (s)he can do is practice her craft. As no one can control when the muses make their appearance, one could always be practising in vain—in some way, one is always already practising to be least in the way when the muse whispers into one’s ear; one is practising so as not to be vain. And since one cannot know when the muse will appear, there is no time frame to the practising—unlike the lawyer who speaks against a clock, poetry knows no time; the only time that matters is the time appropriate to poetry itself. Thus, all the poet (if one can use this term) is practising for the possibility of effacing her/him self—and waiting. Thus, in order for poetry to occur, in order to be seized, the poet—along with all her concerns—must cease. In other words, there is no poet; there is only the possibility of poetry. However, even as there is no time frame to this waiting, even as all we can say is that poetry is a name for waiting, the one who is practising is always already also in time. And since (s)he is in a symbolic relationality with the possibility of poetry, this suggests that the practising is her sacrifice, and time is precisely what she is sacrificing. Here, it might be helpful to turn to a strange source when it comes to poetry—Georges Bataille—and consider his teachings in the first volume of The Accursed Share where he reminds us that, the “essence [of sacrifice] is to consume profitlessly .” This is where each exchange is beyond rationality, beyond calculability, beyond reason itself, “unsubordinated to the ‘real’ order and occupied only with the present.” He continues: Sacrifice destroys that which it consecrates. It does not have to destroy as fire does; only the tie that connected the offering to the world of profitable activity is severed, but this separation has the sense of a definitive consumption; the consecrated offering cannot be restored to the real order.” (58) Since there is no need for a physical change in the object of sacrifice—“it does not have to destroy as fire does”—this suggests that the tie is severed symbolically. Hence, there is an aspect of trans-substantiation in this sacrifice: the form remains the same; in fact there is no perceivable change—this is the point at which all phenomenology fails—but there is always already a difference, an absolute separation from the “real order,” from logic, calculability, reason. The object of sacrifice, the victim [,] is a surplus taken from the mass of useful wealth…Once chosen, he is the accursed share , destined for violent consumption. But the curse tears him away from the order of things…” (59). And it is this tearing away from the order of things—the order of rationality—that “restores to the sacred world that which servile use has degraded, rendered profane” (55). For, only when it is no longer useful, when it is no longer abstracted—subjected, subsumed under—merely a use-value, can the object be an object as such, can a subject be a subject as such; be a singularity. Thus, it is never so much who or what is sacrificed, but the fact that there is a sacrifice. So even as (s)he is sacrificing her time to poetry, it is always already beyond her knowledge whether what (s)he is doing is actually preparing her for poetry or not—all (s)he can know is that she is sacrificing and nothing more. Hence, all (s)he can do is to open her self to the possibility of this relationality—all (s)he can do is be in love with poetry. At the moment the muse whispers into her ear, (s)he ceases to be, and becomes a medium for poetry—and since this possession is always already beyond our cognitive knowledge, this is also a moment of divine wisdom. In other words, there is no difference between poetry and wisdom—the moment of poetry is the moment of wisdom. And this might be the very reason for the philosopher’s aversion to poets. Not so much because they may corrupt the youth (this is after all the aim of all thinking, all philosophy), but precisely because in order to do so, the philosopher must wait for a moment of possession, for divine musing, for poetry. Hence, all thought, all thinking, all philosophy, is nothing but the waiting for the possibility of poetry itself. (shrink)

BackgroundInnovations in technology have contributed to rapid changes in the way that modern biomedical research is carried out. Researchers are increasingly required to endorse adaptive and flexible approaches to accommodate these innovations and comply with ethical, legal and regulatory requirements. This paper explores how Dynamic Consent may provide solutions to address challenges encountered when researchers invite individuals to participate in research and follow them up over time in a continuously changing environment.MethodsAn interdisciplinary workshop jointly organised by the University of Oxford (...) and the COST Action CHIP ME gathered clinicians, researchers, ethicists, lawyers, research participants and patient representatives to discuss experiences of using Dynamic Consent, and how such use may facilitate the conduct of specific research tasks. The data collected during the workshop were analysed using a content analysis approach.ResultsDynamic Consent can provide practical, sustainable and future-proof solutions to challenges related to participant recruitment, the attainment of informed consent, participant retention and consent management, and may bring economic efficiencies.ConclusionsDynamic Consent offers opportunities for ongoing communication between researchers and research participants that can positively impact research. Dynamic Consent supports inter-sector, cross-border approaches and large scale data-sharing. Whilst it is relatively easy to set up and maintain, its implementation will require that researchers re-consider their relationship with research participants and adopt new procedures. (shrink)

People's desire not to limit the meaning of Hancang driving force, continuous development and self-transcendence, which is people from within and beyond the root driving force. The so-called "inner beyond" is not a process of idealism, which began with the desire, from the bottom of the body, and go up on the layer by layer through the heart of the development process裡and mental flexibility, and would therefore have to enhance and transform. We regard the body as I desire the presence (...) of mode. Significance by the driving force in the body and thus close to the appearance, at first non-verbal, and then eventually completed in the language of representation. Through a variety of different non-linguistic representation, the meaning of the body of the driving force to obtain specific and differentiation, as music, art, dance, drama art form ... ... and so on. These different forms of art of common origins, is made ​​to understand the forms of physical exercise, as they are each other's differences, then is made ​​to understand the form of different, such as voice, image, attitude ... ... and so the nature and rules lawyers, and the rise because of their differences on the artistic and cultural expressions of different, and even the formation of the various arts precinct. In order to film art integrated voice, image and body movement, presented at the time of the current moving image, to the above description of the story. Different types of art is "the desire of the induced mover", which provides clear instructions and guidance In order to man the desire for meaning. The meaning of desire is the driving force of development of art in different fields to cross-border basic driving force. Story has entered into a description of the classification of the appearance of language, its basic features is metaphorical. Cross-disciplinary domain of the past will pin their hopes on the concepts and logical reasoning and arguments permit. Today, the language of metaphor for understanding the nature, making metaphor and narrative clues as cross-domain, and in the humanities, social sciences, natural sciences and even among. The reason why life events, actions and circumstances can be constructed to the story, because there I am with the interaction between multiple otherness, its impetus came from one continuous extrapolation, and extrapolation of each other. And diversity of his stories were always the people the story, and always coming to the multivariate description of those who hear him. Through stories, we witness In order to the meaning of life, but always to witness the way metaphor and description of each story to each other through mutual enrichment. Description of the future, after all, the story, no matter real or imagined, there is established based on the relationship regardless of which I was with him who have the freedom in the relationship, a relationship in freedom. It is also across the world who can not break the fundamental driving force and field-based. This paper assumes that there is an undetermined dynamic energy for meaningfulness in human desire, which develops and transcends any particular realization. This is the original energy by which human beings could attain transcendence by way of immanence, which is not an idealist process, but rather originated from a body-based desire that develops upwards and fuller to integrate the mental and the spiritual. Representability, first non-linguistic and then linguistic, is the access to meaning for our desire that takes body as its mode of existence. Through different forms of representation, such as sounds, pictures and gestures ... etc., the project of meaning is specified. The movement of body in intelligible forms is the common origin of music, dancing and performative arts. Cultural difference and artistic boundaries are based upon differences in the nature and rule of these intelligible forms. The art of filming, which synthesizes image, music and body movement in presenting images moving in time so as to tell stories of various kinds. All forms of art are "inducers of desire" by articulating, determining and guiding our desire for meaning. This dynamic development of our desire for meaning is the common basic energy by which we can cross the borders of different arts. Story-telling presupposes linguistic representation accessible to our meaning dynamism. In the past, concepts and logical reasoning and argumentation were taken to be the hope for interdisciplinary research. But now, with the better understanding we have of the metaphoric nature of language, metaphors and narratives are taken to be the clue for a cross-bordering effort in different sciences, human , social and natural. If there are events, actions and plots in human existence to be constructed as stories, it is because there is always interaction with multiple others, the dynamism of it consisting in our incessant act of strangification and mutual strangification. Stories are always stories about one self with multiple others and told to multiple others. By telling stories, we witness a particular way of meaningful life, always metaphorically interpreted. We achieve mutual enrichment by telling stories to each other. The ultimate foundation of cross-bordering in arts and scientific disciplines consists in the ontology of dynamic relation, in which there is relatedness in freedom and freedom in being related, and this is the ground on which all our life stories, both real and imaginative, are based. (shrink)

The perennial question posed by the philosophically-inclined lawyer is 'What is law?' or perhaps 'What is the nature of law?' This book poses an associated, but no less fundamental, question about law which has received much less attention in the legal literature. It is: 'Who is law for?' Whenever people go to law, they are judged for their suitability as legal persons. They are given or refused rights and duties on the basis of ideas about who matters. These ideas (...) are basic to legal-decision making; they form the intellectual and moral underpinning of legal thought. They help to determine whether law is essentially for rational human beings or whether it also speaks to and for human infants, adults with impaired reasoning, the comotose, foetuses and even animals. Are these the right kind of beings to enter legal relationships and so become legal persons. Are they, for example, sufficiently rational, or sacred or simply human? Is law meant for them? This book reveals and evaluates the type of thinking that goes into these fundamental legal and metaphysical determinations about who should be capable of bearing legal rights and duties. It identifies and analyses four influential ways of thinking about law's person, each with its own metaphysical suppositions. One approach derives from rationalist philosophy, a second from religion, a third from evolutionary biology while the fourth is strictly legalistic and so endeavours to eschew metaphysics altogether. The book offers a clear, coherent and critical account of these complex moral and intellectual processes entailed in the making of legal persons. (shrink)

International Law in Context is a pedagogy-forward textbook. It reflects the recent paradigm shift in legal education, which focuses more on what students actually learn rather than the material to which they are exposed. The text aims to prepare the next generation of U.S. lawyers to engage with our interconnected world and to critically evaluate the U.S.'s role within the international legal order. The work is divided into three parts that accomplish these goals. Part One lays a foundation. It covers (...) the various actors within the system, the theories that help explain their behavior, and the principles and sources of law they create. Part Two turns to the fora that define and support the international order, the historical and political contexts that impacted their design, and their efficacy. Part Three is a capstone section that asks students to weave together everything they have learned in Parts One and Two. Students will engage in normative development regarding climate change, including the existing international treaty regime and U.S. implementation options, and the law of war in the modern age. The cornerstone of this book is its organization. The text groups material into conceptual frameworks that promote understanding and retention. For example, rather than consider the various dispute resolution fora in isolation, Part Two asks students to consider them in the context of what types of disputes arise and what legal rules can be employed to resolve them in various international and domestic fora. The institutions also are presented in chronology. In this way, students are encouraged to chart the developmental progression and to make connections and comparisons between various institutions. The use of conceptual frameworks continues within each part. For example, Chapter Six covers the sovereign State as a conflict resolution forum. Under this umbrella, the author discusses (a) State Jurisdiction; (b) The Reception of International Law into the Domestic Sphere; (c) The Qualification as a State Forum or State Litigant (i.e., Recognition of States & Governments); and (d) Protections Afforded Within the Forum: Sovereign, Diplomatic, and Consular Immunity. A typical coursebook might locate this material in four different chapters. The conceptual framework approach, however, allows students to see the big picture and the relationship between concepts. In addition to the frameworks, there are several other innovative pedagogical devices that support student learning. There are Foundation Questions that initially direct readers through the material and cumulatively help students confirm whether they have grasped key takeaways from each section. There also are Assessment Sets in each section, which provide students with immediate opportunities to apply material and gauge their understanding, and "Why Is This Important (a/k/a WITI Moment)" prompts designed to delve deeper into the underpinnings and consequences of various rules. Finally, there are directed reading notes before some more complex readings and margin annotations to keep readers oriented. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Diacritics 30.4 (2000) 38-58 [Access article in PDF] Giorgio Agamben and the Politics of the Living Dead Andrew Norris Death is most frightening, since it is a boundary. —Aristotle, Nicomachean EthicsAnd as the same thing there exists in us living and dead and the waking and the sleeping and young and old: for these things having changed round are those, and those having changed round are these. —Heraclitus, Fragment (...) 88 What is politics today? What is its relationship to the tradition from which it emerges? The questions are difficult ones to answer in part because contemporary politics seems so schizophrenic. In affluent Western countries politics is increasingly a matter of spectacle on the one hand and managed economies on the other. Hannah Arendt seems quite confirmed in her claim that the once-glorious public realm of appearance is fundamentally degraded when it is overrun by concerns more appropriate to the private realm, such as household management and gossip. If this "unnatural growth of the natural" [47] inclines us to nostalgia for a time when the two realms were more decisively separated, such nostalgia is likely intensified by the "ethnic cleansing," rape camps, and genocide that we now associate with names such as "Yugoslavia" and "Rwanda." But as improbable as any flight to the past may be, it is even less likely that the politics of that past could help us navigate the treacherous waters of our current technological society. I have in mind not only the familiar claim that the attempted genocides of our time are only made possible by quite modern forms of technology, organization, and experience, 1 but also recent scientific and "medical" advances. Consider just two: first, the corporate driven and controlled development of biotechnologies, in which huge multinationals are acquiring patents to genetic "information" such as "all human blood cells that have come from the umbilical cord of [any] newborn child." If there is any doubt that such developments will lead us to redefine the human being, these may be laid to rest by the case of John Moore, an Alaskan businessman who found his own body parts had been patented, without his knowledge, by the University of California at Los Angeles and licensed to the Sandoz Pharmaceutical Corporation [Rifkin 60-61]. So much for Locke's attempt to ground the institution of private property in the fact that "every Man has a Property in his own Person"! 2 In its place we seem to be moving [End Page 38] toward something more like the "logical synthesis of biology and economy" called for by the National Socialist Institut allemand in Paris in 1942 [Agamben, Homo Sacer 145]. A similar process of redefinition is already underway in the field of death, a phenomenon that scientists and lawyers are having a harder and harder time pinning down. Where once death was defined by the cessation of the movement of the heart and lungs, recent life support technologies have forced scientists to define death in terms of such technologies. Witness Doctor Norman Shumway's defense of the definition of death as brain death: "I'm saying that anyone whose brain is dead is dead. It is the one determinant that would be universally applicable, because the brain is the one organ that can't be transplanted" [163]. By implication, if and when technology is developed that allows for brain transplants, even those whose brains are "dead" will be brought back to some kind of life, perhaps as organ farms for others who are less ambiguously alive.Giorgio Agamben, from whose book Homo Sacer: Sovereign Power and Bare Life I take both this last grisly example and its analysis, argues that, contrary to appearances, such developments do not represent a radical break with the tradition. His analysis both builds upon and corrects Michel Foucault's claim that politics in our time is constituted by disciplines of normalization and subjectification that Foucault labels "bio-power." For Foucault, biopower is fundamentally modern. "What might be called a society's 'threshold of modernity,'" he writes, "has been reached when the life of the species is wagered... (shrink)

Starting from 2009, national courts of the EU Member States for the first time gained a “real” right to request the EU Court of Justice for preliminary rulings in asylum matters. First judgments of this Court demonstrate equivocal tendencies: some are blaming the Court for incompetence in asylum matters, others believe that the adoption of authoritative decisions at the European level will assist in developing consistent practice of applying asylum law in the European Union, something that failed at international level (...) due to absence of a single authoritative body to provide guidance on interpretation and application of the 1951 Refugee Convention. Considering that the judgments of the EU Court are part of the EU law, the Member States should develop their national asylum law with due regard being taken to those judgments. By the beginning of 2012, the Court has issued eight judgments on the interpretation of various problematic issues of EU asylum law. This Article analyses the jurisprudence of the EU Court in asylum cases, related to the granting of refugee status and subsidiary protection. It also provides a critical evaluation of those judgments. The main objective of the Article is to familiarise the relevant Lithuanian institutions and lawyers with the first judgments of the EU Court in asylum cases and encourage discussions concerning the application of rules established by the Court in the Lithuanian context. Due to limited size, this Article presents the analysis of two EU Court judgments adopted on interpretation of the 2004 Qualification Directive: Elgafaji v. The Netherlands (2009) dealing with granting of subsidiary protection, and Abdulla and others v. Bundesrepublik Deutschland (2010), dealing with cessation of refugee status. The value of those judgments first of all lies in the guidance they provided to the Member States on such concepts as: protection in a situation of an armed conflict, agents of protection, effectiveness of protection; as well as determination of a relationship between refugee status and subsidiary protection, relationship of the Qualification Directive with the European Convention on Human Rights and Fundamental Freedoms (ECHR), also cessation of protection. Elgafaji decision, while quite liberal with regard to persons seeking international protection, is not so liberally applied in the Member States’ practice and does not in itself guarantee positive outcome of the application of a concrete individual fleeing from an armed conflict, or a liberal approach to granting subsidiary protection in the Member States. Based on Elgafaji judgment it is clear that: Art. 15(b) of the Qualification Directive correspond to Art. 3 ECHR, while Art. 15(c) provides additional protection and in that it expands the Member States’ obligations beyond the ECHR to provide protection to persons fleeing in situations of armed conflict. While not every person arriving from an armed conflict situation would automatically fall under the granting of subsidiary protection, in certain exceptional situations indiscriminate violence may amount to individual threat without invoking personal circumstances. The EU Court departed from the individualisation requirement applied by the European Court of Human Rights in Art. 3 cases and did not also rely on international humanitarian law, by introducing a “sliding scale” formula for establishing an individual threat in armed conflict situation instead. This formula addressed the alleged internal discrepancy between “individual threat” and “indiscriminate violence”. The Abdulla decision brought in the human rights and law enforcement perspectives to the interpretation of cessation clauses, however it represents a rather superficial approach in the context of the analysed concepts (e.g. towards effectiveness of protection provided by the multinational armed forces) and is likely to be incompatible with the latest legislative trends in the EU asylum instruments (e.g. determination of refugee status and subsidiary protection by means of a single procedure) and the recent jurisprudence under the ECHR (e.g. failure to ensure a minimum standard of living may violate the ECHR). (shrink)

"The Justice of Mercy is exhilarating reading. Teeming with intelligence and insight, this study immediately establishes itself as the unequaled philosophical and legal exploration of mercy. But Linda Meyer's book reaches beyond mercy to offer reconceptualizations of justice and punishment themselves. Meyer's ambition is to rethink the failed retributivist paradigm of criminal justice and to replace it with an ideal of merciful punishment grounded in a Heideggerian insight into the gift of being-with-others. The readings of criminal law, Heideggerian and Levinasian (...) philosophy, and literature are powerful and provocative. The Justice of Mercy is a radical and rigorous exploration of both punishment and mercy as profoundly human activities." ---Roger Berkowitz, Director of the Hannah Arendt Center for Ethical and Political Thinking, Bard College "This book addresses a question both ancient and urgently timely: how to reconcile the law's call to justice with the heart's call to mercy? Linda Ross Meyer's answer is both philosophical and pragmatic, taking us from the conceptual roots of the supposed conflict between justice and mercy to concrete examples in both fiction and contemporary criminal law. Energetic, eloquent, and moving, this book's defense of mercy will resonate with philosophers, legal scholars, lawyers, and policymakers engaged with criminal justice, and anyone concerned about our current harshly punitive legal system." ---Carol Steiker, Harvard Law School "Far from being a utopian, soft and ineffectual concept, Meyer shows that mercy already operates within the law in ways that we usually do not recognize.... Meyer's piercing insights and careful analysis bring the reader to think of law, justice, and mercy itself in a new and far more profound light." ---James Martel, San Francisco State University How can granting mercy be just if it gives a criminal less punishment than he "deserves" and treats his case differently from others like it? This ancient question has become central to debates over truth and reconciliation commissions, alternative dispute resolution, and other new forms of restorative justice. The traditional response has been to marginalize mercy and to cast doubt on its ability to coexist with forms of legal justice. Flipping the relationship between justice and mercy, Linda Ross Meyer argues that our rule-bound and harsh system of punishment is deeply flawed and that mercy should be, not the crazy woman in the attic of the law, but the lady of the house. This book articulates a theory of punishment with mercy and illustrates the implications of that theory with legal examples drawn from criminal law doctrine, pardons, mercy in military justice, and fictional narratives of punishment and mercy. Linda Ross Meyer is Carmen Tortora Professor of Law at Quinnipiac University School of Law; President of the Association for the Study of Law, Culture and the Humanities; and Associate Editor of Journal of Law, Culture and the Humanities. Jacket illustration: "Lotus" by Anthony James. (shrink)

This excellent book is about Western morality as it interacts with law. It is not contrasting the moral foundations of American law with other value systems. Rather the authors examine the history and great diversity of Western thought, the substance of moral ideas. They range from the ancients to the new old order of the New World. Hazard and Pinto see the various voices articulating moral, political and legal thought as "pregnant with future relevance" for practical decision-making. Thus their approach (...) is not relativistic, but mindful of alternatives and historical context. Hazard and Pinto have written a most thoughtful and stimulating study. -- Gerhard Casper, Professor of Law, Emeritus and President Emeritus, Stanford U. *** Beginning with the reality and challenge of modern Supreme Court confirmation hearings, Hazard and Pinto demonstrate the relationships and differences among law, morals, and politics. Hazard, a legal ethicist and scholar, and Pinto, a biblical historian, are a unique team. Their succinct and vital work draws from the wisdom of the ancients and the evolution of modern thought. Anyone concerned with the living law must understand its moral roots to sense when the old growth should be pruned and the new nurtured in light of evolving principles of liberty, equality, and morality. -- Michael Traynor, President Emeritus, American Law Institute *** In this concise meditation on the relationship between law and morality, one of our leading thinkers on law and the legal profession, himself the embodiment of Aristotelian "practical wisdom", takes us on a most engaging tour of our intellectual and moral heritage, helping us to understand the moral foundations of our modern legal system and the language of the law. I commend this book to any interested reader and particularly to non-lawyers who may not have considered how deeply and mysteriously intertwined our legal rules are with religious belief and historical origins. -- David F. Levi, Dean and Professor of Law, Duke U. School of Law *** This is an unstuffy and lively account of fundamental values in American, and indeed Western, public and civic life. The whole historical background is presented both clearly and comprehensively. This attractively succinct book deserves to be read by all who are interested in our public life. The writing is so incisive and compelling that I read this book in a single sitting. -- Neil H. Andrews, Professor of Civil Justice and Private Law, U. of Cambridge. (shrink)