In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 (...) clearly is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

This article examines some of the interactions between law, science, and society taking place during a trial. By focusing on a restricted set of scientific and nonscientific actors engaged in negotiating the meaning, relevance, and reliability of scientific evidence, the article illustrates how the categories—law, science, and society—are inextricably interrelated in the legal negotiations and outcome. The introduction of scientific evidence into adversarial legal settings produces strategies, opinions, and claims that are not shaped solely by scientists, lawyers, or legal processes. (...) The situated law-science negotiations provide a site where social order and scientific knowledges are mutually constituted. The outcome of specific law-science interactions will be open to a range of readings and constraints that are not reducible to some putatively correct scientific understanding nor adequately described as the distortion of scientific evidence by the legal system. (shrink)

This study analyzes the theory of revenge through the perspectives of propriety (禮) and law (法), as well as private morality (私義) and public law (公法). It examines how the conflicts among these elements were interwoven in revenge cases and judgments during the reign of King Jeongjo 正祖. Additionally, it explores how King Jeongjo’s compassionate approach to criminal justice was demonstrated in these cases. The theory of revenge reveals the clashes between propriety and law, as well as between (...) private morality and public law. By instituting revenge laws that sanctioned acts of vengeance, the legal system aligned itself with the “duty of revenge” prescribed by propriety. The Joseon legal system actively incorporated the concept of revenge into its framework. The state not only facilitated public acts of revenge through legal judgments, integrating punitive power into the sphere of justice, but also pardoned private acts of revenge under the provisions of revenge laws. Notably, King Jeongjo applied these laws to issue pardons for acts of revenge and, in cases where applying such laws proved challenging, he relied on universal principles (天理) and human sentiments (人情) to justify forgiveness. This approach sought to realize the Confucian governance principle of propriety by actively honoring private moral obligations. It exemplified a ruler’s implementation of the moral standard of equity and balance (絜矩) in governance. (shrink)

In Philosophy and International Law, David Lefkowitz examines core questions of legal and political philosophy through critical reflection on contemporary international law. Is international law really law? The answer depends on what makes law. Does the existence of law depend on coercive enforcement? Or institutions such as courts? Or fidelity to the requirements of the rule of law? Or conformity to moral standards? Answers to these questions are essential for determining the truth or falsity of international legal skepticism, and understanding (...) why it matters. Is international law morally defensible? This book makes a start to answering that question by engaging with recent debates on the nature and grounds of human rights, the moral justifiability of the law of war, the concept of a crime against humanity, the moral basis of universal jurisdiction, the propriety of international law governing secession, and the justice of international trade law. (shrink)

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism (...) and the inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Commandment against the Law Writing and Divine Justice in Walter Benjamin’s “Critique of Violence”Tracy McNulty (bio)Pierre Legendre has shown that the Romano-canonical legal traditions that form the foundations of Western jurisprudence “are founded in a discourse which denies the essential quality of the relation of the body to writing” [“Masters of Law” 110]. It emerges historically as a repudiation of Jewish legalism and Talmud law, where the rite (...) of circumcision encodes the subject’s entry into law as an “allegiance to the absolute Writing,” or the “relationship between the human subject and the logical place of the Other” [110–11; see also “les juifs”]. In this shift, one understanding of writing is displaced by another: the material inscription of the letter, as an incommunicable limit or cut, is supplanted by the fantasy of what Legendre calls a “living writing,” a writing “in the heart” that promotes an ideal of perfect communication in which nothing is lost, in which meaning is lodged in an absolute Other who guarantees all knowledge. In his words, “we belong to a culture in which a mystically alienated human body stands in the place of the absolute book. The state has emerged from this structure.... Its basic characteristics can be set out by means of a fundamental Romano-pontifical maxim: the Emperor carries all the archives in his breast (omnia scrinia habet in pectore suo)” [“Masters of Law” 109].The ultimate theological source of this Roman maxim is Paul’s polemic against the Jewish law in the Epistle to the Romans. Paul’s polemic is structured by a distinction between two orders of law: the “law of God” and the “law of sin.” The first is associated with the intelligible “spirit” of the law, which is “written in the heart,” the second with the prescriptive “letter” of the Jewish law, which compromises or corrupts the first by binding it to a particular representation and consigning it to written form. Paul’s solution is to bypass the law, to bypass representation, and perhaps even language itself. The prescriptive “letter” of the Jewish law must be sublated by the law of the spirit, such that “we serve not under the old written code but in the new life of the Spirit” [Romans 7: 6]. Christ, as the living embodiment of the law of God, upholds the spirit of the law by “fulfilling”––and so rendering obsolete–its written form.The doctrine of Christ as the “living law” sustains what Legendre describes as a “banalisation of writing” [“Masters of Law” 111], a disregard for its material inscription that holds the letter to be nothing more than a placeholder, a flawed or incomplete representation of a meaning or truth that is itself beyond words. At the same time, it makes possible the legal and political fantasy of a living writing, located in a single body understood as the site of interpretive authority. The extraction of a meaning or truth from the intractable letter becomes the ultimate aim of the legal order and the most lofty task of its sovereign interpreter, uniquely charged with animating the dead letter. This notion permeates what Peter Goodrich describes as “the most standard protocols of legal reading,” according to [End Page 34] which “it is not the letter but the spirit that determines the meaning of the law”:The text is composed of dead letters (litera mortua); the rule is no more than a “mute judge,” a sleeping form, requiring the interposition, anima legis, of jurist or judge.... [T]he meaning of the law is internal to its living body, viva vox iuris or lex loquens, its image, interpreter, or legislator. In classical terms it is spelled out by reference to something beyond words: “to know the law is not to know the words of the law, but its force and power.” In a renaissance formulation we are similarly told that “no words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison to truth, faithfulness and integrity. For verba menti, non verbis servire debet; words, are made as instruments to serve and express the mind, and not to command it.”[229–30]1... (shrink)

Mehlman and Massey examine possible legal responses to the issues that confront physicians faced with treating patients who have insufficient financial resources. This commentary explores the same issues from the perspective of ethics, including a comparison of the way law and ethics interpret the physician-patient relationship, the ethical obligations of physicians that are inherent in that relationship, and the propriety of Mehlman and Massey's legal and ethical proposals to ameliorate physicians' conflicting obligations in providing or withholding care on grounds (...) of conservation of society's resources. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

Charts the history of the Jesuits in France, their organization, teaching methods and aims, with particular reference to La Flèche and the relationship between Christianity and Classical philosophy in the philosophical curriculum followed there by Descartes. This was the Jesuit version of the liberal arts, based mainly on works by Aristotle, including dialectic, natural philosophy, mathematics, metaphysics, and ethics. Speculation as to Descartes's activities in the period 1614–1618, in between finishing his studies at La Flèche, his law studies, and joining (...) Prince Maurice of Nassau's army. (shrink)

This article explores the tension between the fundamental perception that the provision of privatized services such as health and social care remain inherently public and the absence of any clearly developed juridical concept of ‘public services’ as the basis of judicial control in accordance with public law standards. In a series of recent cases, courts have had the opportunity to determine whether private contractors engaged in the provision of local authority residential and social care services are amenable to judicial review (...) or susceptible to direct vertical proceedings under the Human Rights Act, on grounds that they are performing functions which are by their very nature quintessentially public. However, conflating questions of amenability to review and susceptibility to the Human Rights Act (hereafter HRA), courts have refused to adopt a test based on the public character of a body's functions, irrespective of the source of power. This article acknowledges the constitutional propriety and rationality of a broad based functional test of review. Nevertheless, it is argued that if courts continue to resist such a test, Parliament must legislate to ensure judicial regulation of decisions by independent contractors of health and social care services, in accordance with public law principles and HRA obligations, which transcend the boundaries of their strict contractual undertakings. (shrink)

Patricia White has recently attempted to construct an ethically valid notion of forgiveness that will serve educational purposes and contribute to the moral development of pupils in schools. She distinguishes between a strict view that requires repentance before forgiveness, which she rejects, and a relaxed view that does not require repentance, which she endorses. In this reply I defend the strict view of forgiveness against her criticism and challenge the ethical propriety of the relaxed view. I shall argue that (...) her support for the relaxed view both runs counter to our deepest moral intuitions and serves to undermine the moral law and moral endeavour. (shrink)

ABSTRACTIn this article, I explore the complex and unappreciated relationship between the moral and political thought of Cicero and Adam Smith. Cicero’s views about justice, propriety, and the selfish love of praise find new expression in Smith’s Theory of Moral Sentiments. I illustrate the important ways in which Smith adopts – often without attribution – Cicero’s precepts and moral judgments. I then go on to demonstrate how Smith strips those Ciceronian conclusions from their original justifying grounds in teleology and (...) natural law. In their place, Smith injects his own psychology based in sentiments as a new account of why it is that we prefer virtue and justice to their opposites. By exploring this relationship, I hope to shed light on an important dynamic whereby modern thought has creatively adapted classical moral and political concepts. (shrink)

The ethical propriety of routine male infant circumcision has been debated in journals of medicine and law for many years. This article explores the issue from historical, medical, and moral perspectives. Two essentially different forms of circumcision (one more drastic than the other) are distinguished. Discussion focuses on the effects of the more radical kind of nontherapeutic surgery on a normal healthy child’s body: whether it constitutes a mutilation, whether it is medically warranted, and whether it is ethically defensible (...) in light of general philosophical principles and Catholic moral doctrine. The conclusion questions the social bias favoring parental choice to circumcise a non-consenting son. National Catholic Bioethics Quarterly 12.1 (Spring 2012): 99–128. (shrink)

In this paper, I argue that within the Japanese social context, the act of suicide is a positive moral act because the values underpinning it are directly related to a socially pervasive moral belief that any act of self-sacrifice is a worthy pursuit. The philosophical basis for this view of the self and its relation to society goes back to the writings of Confucius who advocated a life of propriety in which being dutiful, obedient, and loyal to one's group (...) takes precedence over the desires of the individual selves that make up the group. I argue that this philosophical perspective poses formidable challenges to Japanese psychiatry (which accepts a contrary western perspective) because, as western psychiatry is based on the concept of autonomous individuality, the Japanese conceive of the self as socially embedded. Because suicide in Japan is viewed as a potentially honorable, virtuous, and even beautiful act of self-sacrifice expressing one's duty to one's group, the western perspective is quite foreign to the Japanese self-conceptual framework. Therefore, since Japanese psychiatry and law have embraced the western medical tradition of viewing suicide as a non-rational response to mental illness, which runs counter to the cultural view that suicide is a moral (and rational) act, I argue that western explanations of suicide present significant cross-cultural problems for Japanese psychiatry. (shrink)

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...) revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally. (shrink)

This chapter presents some of Ayn Rand's express condemnations of non‐objective law and then indicates the underlying principles of government that explain these assessments. It also discusses the implications of Rand's view for the traditional Natural Law‐Positivism dispute over the authority of law and for the moral status of the Rule of Law. In particular, the chapter shows why the Rule of Law, on what she regards as a proper conception of objective law, is emphatically a moral ideal. The broad (...) scope of Rand's conception of objective law is explained not only by her view of the function of government, but also by her understanding of objectivity itself. In the sense in which the term applies to man‐made things, objectivity is normative. Rand's analysis suggests that the propriety of the Rule of Law rests, at bottom, in its objectivity. The Rule of Law banishes subjectivism. (shrink)

The essays in this volume constitute a series of investigations into the limitations on thought and power as conceived by thinkers in the medieval West and they draw on material ranging from law to literature. The author deals with limits on the human desire for knowledge, the passion with which knowledge could legitimately be pursued, and the propriety of the knowledge sought, as well as the limits that might be tolerable and tolerated in the case of royal incapacity or (...) misbehaviour. One particular focus is the work of Dante Alighieri, and these ideas are traced across a wide range of his thought. Chronologically the essays run from Augustine and the Gnostics through to Shakespeare. (shrink)

Hobbes could not have written Paradise Lost: the longest of his few references to the story of Adam and Eve drains their relationship of drama and complexity; most aspects of human sexuality he addresses only in classifying them as off limits because of their indecency, neglecting topics in some respects germane to the clarification of his philosophy; and his original English verse amounts to one line for each of that epic's twelve books. This short poem nonetheless represents an intriguing persuasion (...) to love written in his extreme old age. Moreover, his treatment of “LUST” in The Elements of Law takes a significantly non-judgmental form by the standards of his time, though not marking so substantial an innovation as Simon Blackburn takes it to be. Most importantly, the anti-puritanical thrust of Hobbes's attack on Presbyterian preachers in Behemoth again illustrates his capacity for entertaining—however briefly—an essentially uncensorious view of human sexuality, this time in conjunction with a critique of sexual repression, as imposed by those clergymen in their role as spiritual advisers, that sheds invaluable light on the self-consciously scandalous libertinism of younger contemporaries often identified in his own day and since as “Hobbists”. (shrink)

Creative Class, Creative Economy, and the Wisdom Society as a Solution to their Controversy The paper briefly introduces the notion of creativity, linking the concepts of creative class and the related creative economy that are considered by Florida and his followers as the driving force of the current social and economic development. The concept of creative economy and its quantification in form of the Creative Class Index 3T or the Euro-Creativity Index were submitted to strong critique.The critics overturn some key (...) issues of the concept of creative class with an indication that the creative people give priority in choosing the work from the place; and there is no or almost nil correlation of a perceptual representation of the persons of homosexual orientation and the high-tech growth which confirms the opinion that the assertion about higher creativity of homosexual persons is a myth only. The purpose of the article is the examination of propriety of the concept of creative class and its quantification at one hand, and the rightfulness of their critique at the other. The analysis of the axiology of the concept of creative class is the method of examination. From point of view of axiology probably the most significant characteristic of the creative class is its accompanying destruction of thee social capital of creative people and it substitution of the creative capital. The rise of creative class takes place in parallel with the implosion of values at which basis our Jewish-Christian civilization is established. To this Florida expresses rather vague attitude by a statement that all socio-cultural changes that accompany the rise of the creative class will have no favorable impact on society.Florida labeled creativity as a basic human law, furthermore, he announced the need for a new live style in which the quality of life will increase and people become better men. The concept of creativity as an instrument of urban planning evolved into a left-liberal ideology with elements of social engineering that is the most important finding of the axiological analysis. The second finding is the need to accept the meaning of creativity. By implication of the two findings there arises a proposal for wisdom as a new driving force of social and economic development. The conclusion is the contribution is a requirement for formulation of the concept of wisdom society that is currently likely absent in the academic world, and the statement that if the West will not create the wisdom society, it will lose the raison d'être of its existence. (shrink)

Although ethics research shows that prospective penalties for tax fraud can increase taxpayers’ compliance with tax laws, we do not have a clear understanding of how perceptions of penalty severity impact tax compliance. To address this gap, I first conduct a survey to establish what propriety of penalty severity encourages compliance. I then examine experimentally whether taxpayers’ compliance is jointly influenced by penalty severity and social norms. I expect social norms to moderate the impact of penalty severity because social (...) norms provide a contextual cue about the scope and relevance of an ethical issue. Specifically, I expect that when taxpayers anchor (do not anchor) on information about social norms, the positive impact of penalty severity on tax compliance is suppressed (not suppressed). My results are as predicted. I conclude that governments can increase compliance with tax laws by imposing appropriately severe tax fraud penalties and carefully considering the release of information related to compliance norms. (shrink)

The distinction between moral values and others is not an easy one. There are easy extremes: the value that one places on his neighbor's welfare is moral, and the value of peanut brittle is not. The value of decency in speech and dress is moral or ethical in the etymological sense, resting as it does on social custom; and similarly for observance of the Jewish dietary laws. On the other hand the eschewing of unrefrigerated oysters in the summer, though it (...) is likewise a renunciation of immediate fleshly pleasure, is a case rather of prudence than morality. But presumably the Jewish taboos themselves began prudentially. Again a Christian fundamentalist who observes the proprieties and helps his neighbor only from fear of hellfire is manifesting prudence rather than moral values.1 Similarly for the man with felony in his heart who behaves himself for fear of the law. Similarly for the child who behaves himself in the course of moral training; his behavior counts as moral only after these means get transmuted into ends. On the other hand the value that the child attaches to the parent's approval is a moral value. It had been a mere harbinger of a sensually gratifying caress, if my recent suggestion is right, but has been transmuted into an end in itself. · 1. Bernard Williams, Morality , pp. 75-78, questions the disjointedness of these alternatives. I am construing them disjointedly. W.V. Quine, Edgar Pierce professor emeritus of philosophy at Harvard University, is the author of many influential works, including The Roots of Reference. "A Postscript on Metaphor," his previous contribution to Critical Inquiry, appeared in the Autumn 1978 issue. The present essay is being published in a festschrift, Values and Morals: Essays in Honor of William Frankenna, Charles Stevenson, and Richard Brandt. (shrink)

The project of “public reason” claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of “public reason,” in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to (...) pick out from the multitude of particularized accounts of what constitutes “civic order,” no “public reason” so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Abstract Footnotes (291) Beta -/- Revise My Submission -/- -/- One-Click Download | Share | Email | Add to Briefcase -/- Facebook | Twitter | Digg | Del.icio.us | CiteULike | Permalink Using the URL or DOI link below will ensure access to this page indefinitely -/- Based on your IP address, your paper is being delivered by: New York, USA Processing request. [Processing request.] Illinois, USA Processing request. [Processing request.] Brussels, Belgium Processing request. [Processing request.] Seoul, Korea Processing request. [Processing request.] California, USA Processing request. [Processing request.] -/- If you have any problems downloading this paper, please click on another Download Location above, or view our FAQ File name: SSRN-id1004757. ; Size: 424K -/- Sample Cover You will receive a black and white printed and perfect bound version of this document in 8 1/2 x 11 inch format, with glossy color front and back covers. Currently shipping to the US addresses only. Your order will be shipped within three business days. Quantity: Total Price = $0.50 plus shipping (U.S. Only) -/- If you have any problems with this purchase, please email [email protected] or call 1-585-442-8170. Reason's Freedom and the Dialectic of Ordered Liberty -/- Edward C. Lyons University of Notre Dame Law School -/- Cleveland State Law Review, Vol. 55, p. 157, 2007 -/- Abstract: The project of "public reason" claims to offer an epistemological resolution to the civic dilemma created by the clash of incompatible options for the rational exercise of freedom adopted by citizens in a diverse community. The present Article proposes, via consideration of a contrast between two classical accounts of dialectical reasoning, that the employment of "public reason," in substantive due process analysis, is unworkable in theory and contrary to more reflective Supreme Court precedent. Although logical commonalities might be available to pick out from the multitude of particularized accounts of what constitutes "civic order," no "public reason" so derived could adequately capture - and thus be able to secure in a practical sense - any single determinate civic order, much less one that would be consistent with all citizens' conceptions of public order. -/- Part I of this Article raises a number of issues for consideration relating to the epistemology of law and focuses especially on the concept of public reason and its critique. Part II addresses alternative approaches to legal reasoning suggested by classical accounts of practical reasoning and virtue theory and considers the operation of such legal analysis outside the area of substantive due process; Part III analyzes post-Lawrence case law confirming the dilemma created by the Supreme Court's ambiguous approaches to substantive due process and concludes that only one interpretation - that articulated fully in Washington v. Glucksberg and given lip service in Lawrence v. Texas - provides a method for resolving novel substantive due process challenges that is philosophically sound as well as historically coherent. -/- Rather than perpetuating a fiction that denies the propriety of lawmaking unless based on principles that all citizens can rationally agree upon, an appropriate model of substantive due process analysis recognizes that law must inevitably be based upon principles that cannot be agreed upon by all citizens in virtue of rationality alone. -/- Keywords: substantive due process, practical reason, public reason, Rawls, Casey, Lawrence, Glucksberg, Plato, Aristotle, Kant, Hegel, dialectic, autonomy, freedom -/- . (shrink)

Free software introduces a challenge to the classical conception of individual rights. The model of software licensing given by the General Public License generates the question whether it constitutes an exercise or a wavering of copyright. It is argued in this paper that the later alternative is entrenched in the classical concept of freedom as autonomy, which, by its turn, is reflected in a classical conception of individual rights based on the model of propriety as a dominion over an (...) exclusive object (res). We provide grounds for a concept of non-exclusive individual rights, based on the notion of freedom as reciprocity, in order to obtain more solid legal foundations for the free licensing of software. The concept of freedom as reciprocity and the corresponding reconstruction of non-exclusive subjective rights achieved in this paper is an exercise in general theory of law and thus may be applied to other legal fields where the classical notion of freedom and the property of exclusivity do not fit properly. (shrink)

Despite the signpost prominence of Hobbesian positions in theories of international relations and global justice, the ground and nature of Hobbes’s claim that justice and injustice are non-existent outside the State are poorly understood. This paper aims to provide the first comprehensive explanation of this doctrine . I argue that Hobbes offers two distinct arguments for Justicial Statism: the Covenant and the Propriety Argument. Each argument is premised on a different conception of justice and stresses different implications of the (...) natural right to all things. The Propriety Argument is based on distributive justice. First introduced in Leviathan, this argument has received little scholarly attention, although it is no trivial addition: the Covenant Argument alone cannot establish Justicial Statism. My reconstruction highlights two further, hitherto ignored presuppositions of Hobbes’s Justicial Statism: his rejection of natural rights governed by justice and his claim that violations of natural law do not wrong non-divine agents. (shrink)

To be radical about pornography used to mean that one favored less censorship; now it often means that one favors more. That political change reflects a shift in the dominant paradigm of pornography and its putative evils. Until quite recently, most people who believed pornography wrong thought that it offended against decency and propriety and was therefore obscene. That was certainly the view of the law. English judges first created the crime of obscene libel in 1727 on the basis (...) that such expression tended to corrupt the morals of the King's subjects, a thought that inspired most subsequent legislation in the common‐law world. Sometimes the underlying concern really was paternalistic: pornography degrades and corrupts its producers and consumers; the law forces them to become better people. More often, however, it was just moralism of the familiar sorts: the view that a majority of a community is entitled to enforce its moral views on the rest, either because that is democratic or because that is just what it means to be a community. The obscenity paradigm thus had two features. First, it was illiberal: it ranked personal autonomy below realizing the good, enforcing the majority will, or embodying communitarian values. Second, it was gender neutral: to understand the nature of pornography did not require theorizing relations between men and women. On the obscenity paradigm, pornography was a matter of virtue versus vice, majorities versus minorities. (shrink)

Adam Smith’s work on moral sentiments is part of his much wider project of a science of man. And his most developed account of sympathy and sociability, provided in The Theory of Moral Sentiments, actually provides the central foundation for his wider, theoretical, or conjectural histories of law, language, government, and political economy. Indeed, his collected writings construct a space for thinking not only about the conjectural history of law, government, and society more precisely in terms of the mechanism of (...) sympathy and propriety. They also focus on the relationship between passions, actions, and political judgements. Smith’s theory of human and commercial sociability and sympathy nevertheless has various limits, and these can be understood in moral and political, commercial and historical, as well as providential and jurisprudential terms. My discussion here is an attempt to show how these limits interweave and interconnect across the body of Smith’s work. (shrink)

Obscenity is the language of impiety, irreverence, and disrespect. Some use it to convey a disrespectful attitude towards a person or platitude, while others use it to reject the prevailing norms of propriety. The meanings of the terms euphemism, cacophemism, prophemism, and disphemism are explained. The reaction to excessive euphemization, two strategies for ridding the language of obscene words, the phenomenon of dirty-mindedness, and the case for retaining the obscene vocabulary are discussed.

This paper explores organ donation through the perspective of Reconstructionist Confucianism. I argue that for organ donation in China to be morally permissible, public policy must conform to the norms of Confucian benevolence. Reconstructionist Confucianism appreciates benevolence as an objectively important feature of morality deeply connected to moral rules governing propriety, integrity, righteousness, and human freedom. Here, benevolence involves sincere affection for another as an intrinsic good, rather than as a means to achieve other purposes. It requires developing self-restraint (...) and proper respect for others. As I argue, family-based consent is essential for ensuring that organ donation conforms to such an understanding of benevolence and is, thereby, compatible with Confucian culture. Consequently, legislation in China should solidify family-based consent for organ donation to consolidate a benevolent family environment as the basis of morality, law, and social existence. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:William Righter GOLDEN RULES AND GOLDEN BOWLS In one of his last interviews Michel Foucault remarked on the relation of any search for a perfect existence to the source of those forms of obligation which paradoxically make it possible, and hence on the variable shapes of the interdependence of the beauty of life with the moral understanding by which we accept the nature of our obligations. He sees this (...) in terms of the way these obligations establish themselves, by recognition and submission, by what he calls "the mode of subjection {mode d'assujettissement), that is, the way in which people are invited or incited to recognize their moral obligations. Is it, for instance, divine law, which has been revealed in a text? Is it a natural law, a cosmological order, in each case the same for every living being? Is it a rational rule? Is it the attempt to give your existence the most beautiful form possible?"' If we wish to do something like finding the most beautiful form of life, we face problems of moral calculation, we must formulate principles of choice, and above all learn to make our submission to the necessity such principles may imply. "What is the mode d'assujettissementT'' Foucault asks: It is that we have to build our existence as a beautiful existence; it is an aesthetic mode. You see, what I have tried to show is that nobody is obliged in classical ethics to behave in such a way as to be truthful to their wives, to not touch boys and so on. But if they want to have a beautiful existence, if they want to have a good reputation, if they want to be able to rule others, they have to do that. So they accept those obligations in a conscious way for the beauty or glory of existence. The choice, the aesthetic choice or political choice, for which they"decide to accept this 262 WtLLiAM Righter263 kind ofexistence—that's the mode d'assujettissement. It's a choice, a personal choice.2 At some levels this choice looks quite simply like a calculative sacrifice of the lesser thing for the greater. But an important element of the incommensurate enters into the choice. The beauty, the glory of the thing far surpasses the small normative commitments one undertakes for its sake, both in degree and in belonging to another and superior order. The beautiful form of existence is separated by some enormous gulffrom those social and human arrangements that must be submitted to it. Yet one is aware of basing the beauty of life on these lesser forms of obligation. Many things may be subjected, as one sees in The Golden Bowl, to the greater principle, where almost anything may be sacrificed as long as the beauty of that principle is in view. But how do we assess this disproportion and see the propriety of subjection established? For subjection could come to serve many principles, and in The Golden Bowl we shall observe the studied operation of subjection in a world where principles are continuously and meticulously examined and re-examined. The Foucaultian conjunction of obligation and the "glory of existence" touches the heart of a work where the fascination with the incommensurate moves uneasily between alternative versions of that glory. What is the overriding principle that underwrites and legitimates such anexistence?James's involvementwith such a "particular attaching case" seems to proceed from the fullest sense of the difficulty, from the fullest rendering of incompatible versions ofthat existence, brought into the closest and tightest formalbond. The very simplicity of the action somehow produces an enforced contemplation of a bizarrely closed world, in which the dynamics of the two marriages shape a conflict that seems inevitable, even strangely natural. It can be expressed in a few words. A widowed American millionaire, Adam Verver, has in his late forties retired to the life of a collector of objects of art. In his travels with his daughter Maggie, they collect also ahusband forher, a Roman prince. To ease the consequences for her father Maggie promotes his marriage to her closest school friend Charlotte. Unknown to the Ververs she and the Prince were once lovers... (shrink)

The Law and Economics approach to law dominates the intellectual discussion of nearly every doctrinal area of law in the US and its influence is growing steadily outside America as well. 2013 marked the fortieth anniversary of the publication of Richard Posner's Economic Analysis of Law, the book that launched the Law and Economics movement. The eighth edition of the book was published in 2011, this time competing against over twenty textbooks, collections and casebooks on law and economics. Although there (...) has been phenomenal growth in this area questions remain. Why has Law and Economics movement become so successful? What is the current status of the Chicago School? What are the alternative theories and how much influence do they exert? What can be considered mainstream today? What are the norms and values underlying this impressive body of research? These issues, amongst others, are thoroughly explored by the contributors. (shrink)

This book uses contemporary feminist insights to examine aspects of the classic social contractarians' arguments, concentrating upon the work of Hobbes, Spinoza ...

The series "Philosophers and Law" selects and makes available the most important essays in English that deal with the application to law of the work of major philosophers for whom law was not a main concern. The essays are based on scholarly study of particular philosophers and deal with both the nature and role of law and the application of philosophy to specific areas of law.

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to (...) recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in virtue of that which we distribute and equalize that our policy formulations treat us as politically “counting” or “mattering” for purposes of social aggregation and maximization. To attend systematically to this form of inter-translatability, with a view in particular to that which maximization formulations latently prescribe that we distribute and equalize, might be called “putting distribution first.” It is explicitly to recognize the fact that all law and policy are implicitly as equalizing and citizen-defining as they are aggregative and maximizing, and to trace the many salient consequences that stem from this fact. It is likewise to recognize that all law and policy treat us as equals in some respects and as non-equals in other respects. Putting distribution first by attending explicitly to these “respects” yields greater transparency about how well or poorly our laws and policies manage to identify, count, and treat us as equals in the right respects. This Article works to lay out with care how to put distribution first in normative legal and policy analysis. The payoffs include both a workable method by which to test proposed maximization norms systematically for their normative propriety, and an attractive distributive ethic that can serve as a workable normative touchstone for legal and policy analysis. Indeed, the Article concludes, much — though not yet quite all — of our law can illuminatingly be interpreted as giving inchoate expression to just such an ethic. (shrink)

Now available Open Access! See the Bloomsburycollections URL below. -/- Correct bibliographical information is as follows: Gottfried Achenwall, _Natural Law: A Translation of the Textbook for Kant's Lectures on Legal and Political Philosophy_, edited by Pauline Kleingeld, translated by Corinna Vermeulen, with an Introduction by Paul Guyer. London: Bloomsbury, 2020. -/- As the first translation into any modern language of Achenwall’s Ius naturae, from the 1763 edition used by Immanuel Kant, this is an essential work for anyone interested in Kant, (...) the natural law tradition or the history of legal and political theory. For over twenty years, Kant used this book as the basis for his lectures on natural law. It influenced his legal and political philosophy as well as his ethics, and it is indispensable for understanding Kant’s Feyerabend Lectures on Natural Law and his Metaphysics of Morals. -/- Articulating his theory of natural law with clear definitions and precise distinctions, Achenwall offers a lucid account that includes instructive comparisons with the work of Grotius, Hobbes, Pufendorf, Wolff and others. The volume also contains an Introduction by the eminent Kant scholar Paul Guyer, comparing Achenwall’s theory to the legal and political philosophy of Kant’s Doctrine of Right, and a concordance correlating Achenwall’s Natural Law to Kant’s Feyerabend Lectures on Natural Law. (shrink)

This book is an interdisciplinary work that weaves literary interpretation, legal theory, and philosophical doctrine about sex and love into a coherent mosaic in the context of two of Shakespeare’s plays: The Merchant of Venice and Measure for Measure. In the process, the work advances literary interpretations of the plays including character studies of some of the main protagonists. The aim is partly theoretical but mostly practical: to demonstrate what we can learn about living a robustly meaningful and significant human (...) life by taking Shakespeare’s work seriously from contemporary philosophical and legal vantage points. Shakespeare does not reveal a tightly defined moral system that he is trying to urge upon his audience. Instead, Shakespeare challenges his audience to struggle with moral complexity as they confront conflicting elements surrounding legal and moral issues presented in his work and within the souls of his characters. His issues and their conflicts are also ours. Much of Shakespeare’s work consists of raising weighty questions inextricably connected to the human condition and inviting his audience to ponder possible answers. The philosophical lessons about living our lives meaningfully and significantly that we can derive from Shakespeare are simple yet powerful. (shrink)

A key objective of the law in the assessment of decision-making capacity in clinical settings is to allow clinicians and judges to avoid making value judgements about the reasons that patients use to refuse treatment. This paper advances two lines of argument in respect of this objective. The first is that authorities cannot rationally avoid significant evaluative judgements in the assessment of a patient’s own assessment of the facts of their case. Assessing reasoning is unavoidably value-laden. Yet the underlying motivation (...) behind clinicians’ and the law’s value-neutral aims, ie, the avoidance of undue paternalism, is worth preserving. That being so, the second line of argument will try to show that that underlying motivation is better served in a limited range of cases by embedding a ‘reversibility standard’ in the assessment process so that the patient can, if they wish, and in due course, bring about the consequences that they were prevented from realising as a result of a determination of incapacity. (shrink)

This book fundamentally challenges the radical credentials of post-structuralism. Though Derrida, Foucault and Deleuze claim to have 'deconstructed' metaphysics, their work has much in common with previous attempts to 'end' the metaphysical tradition, from Kant to Nietzshe and Heidegger, and by sociology in general. Gillian Rose shows that this anti-metaphysical writing always appears in historically specific jurisprudential terms, which themselves found and recapitulate metaphysical categories. She reconsiders post-structuralism in this light and assesses the relationship between deconstruction and the earlier structuralism (...) of Saussure and Levi-Strauss. She argues in conclusion that the choice between post-structuralist nihilism and Hegelian and Marxist dialectic is spurious. (shrink)

Exploring the relationship between conceptions of nature and (largely American) legal thought and practice, this study focuses on the politics and pragmatics of "nature talk"--as expressed in extra-legal disputes as well as different forms of legal discourse. Topics include the forces of nature, endangered species, animal experiments and bestiality. David Delaney demonstrates throughout that nearly any analysis of "nature" entails an interpretation of the essence of "humanity.".

Relational approaches are gaining more and more importance in philosophy of tech-nology. This brings up the critical question of how they can be implemented in applied ethics, law, and practice. In “Extremely Relational Robots: Implications for Law and Ethics”, Nancy S. Jecker (2024) comments on my article “Not Relational Enough? Towards an Eco-Relational Approach in Robot Ethics” (Puzio, 2024), in which I present a deep relational, “eco-relational approach”. In this reply, I address two of Jecker’s criticisms: in section. 3, I (...) deal with the connection of personhood and human identity with relationality, and in section. 4, I discuss the consequences of relational approaches for practical ethics and law. Unlike Jecker, I am strongly convinced that relational approaches can and should be implemented in applied ethics and law. (shrink)

Introduction: the grey goose -- The origins of civil society and the function of law -- Justice, ownership, and law -- Natural justice and conventional justice -- Justice and the trading order -- Adjudication and interpretation -- Morality, law, and legislation -- Natural law -- Rights -- The force of law -- The authority and legitimacy of law -- Conclusion.