If Kant’s theory of justice is known for one thing, it is for offering a vision of a perfectly just society that is utterly disconnected from the imperfect societies that we occupy. The purity of Kant’s account has attracted criticism from those who claim that if a theory of justice is to be practical, it must offer more than a vision of a perfectly just society. It must also explain how existing societies mired in injustice are to be brought into (...) ever-closer conformity with the ideal that justice prescribes. In this essay, I will argue that this is exactly what Kant’s mature legal and political theory offers. To discern this feature of Kant’s theory, a neglected component must be integrated into his broader framework. This component is what Kant refers to in Toward Perpetual Peace as a permissive law of public right. (shrink)

In this article I argue that the current readings of permissive law fall into hermeneutical difficulties and do not completely explain Kant’s complex use of the concept. I argue that the shortcomings of these interpretations can only be overcome by relating permissive law to practical teleology. That teleological thinking has a role in Kant’s moral thought by way of history is not new. Here, however, I argue that the system of rights itself is in some manner teleologically situated. (...) This interpretation allows us to understand that Kant’s Doctrine of Right plays the role of a realist utopia. (shrink)

In recent years, English-language scholars have begun to approach the daunting field of Kant's politics by way of its technical core: the deduction of private right. In this interpretive project, t...

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.2 (2001) 301-312 [Access article in PDF] Kant on Property: The Problem of Permissive Law Brian Tierney In a pathbreaking article published in 1982 Reinhold Brandt called attention to the significance of the concept of permissive natural law in Kant's political philosophy. Brandt noted that Kant's "rightful concept of practical reason" or "permissive law of practical reason" was of fundamental (...) importance for understanding the whole theory of the Rechtslehre, and he complained that the issue had been virtually ignored in the recent secondary literature. 1 Since then others have taken up the theme, but it remains relatively neglected in the vast modern literature on Kant. In the work of Brandt and in some other recent explorations of this question a primary concern has been to relate Kant's doctrine to other aspects of his critical theory. Brandt himself, for instance, compared the "provisional" and "peremptory" rights mentioned in the Doctrine of Right with the "problematic" and "assertoric" judgments of the Critique of Pure Reason. The problem that I want to consider is rather different. In the following study I want to consider primarily the internal structure of the Doctrine of Right and specifically to ask whether Kant's appeal to permissive natural law served a constructive purpose in the theory of property that he presented in that work or whether it was perhaps subversive of the argument that he developed. 2 This will require [End Page 301] some discussion of the other usages of the idea of permissive law that we find scattered in Kant's later writings. In pursuing such an inquiry we encounter various difficulties and apparent anomalies in Kant's teaching. I want finally to suggest that we might understand those difficulties better if we were to situate Kant's work in a broader historical context than those that have previously been considered, bearing in mind that the concept of permissive natural law had been discussed by jurists and political philosophers for several centuries before Kant took up the argument. Kant on Property When approaching Kant's Doctrine of Right it may be salutary to recall a remark of Mary Gregor, the translator of the work and a sympathetic reader of it. "Kant has never been accused of underestimating his readers," Gregor wrote, "but he seldom treats them so harshly." 3 The difficulty of the work is compounded by the fact that the text as we have it is apparently in a mutilated condition, with some passages transposed from their original contexts. Any reading of such a text will be open to dispute; but it seems necessary to attempt at least an outline of Kant's doctrine and to mention some of its complexities if we are to understand the function of permissive natural law in the argument presented.Kant's purpose was to formulate a doctrine of property based on reason alone, a doctrine in which "abstraction is made from all spatial and temporal conditions." 4 The principles he deduced were intended to apply to anyone "merely because and insofar as he is free and has practical reason." 5 The whole subsequent argument revolved around these concepts of practical reason and human freedom. Kant began by presenting some basic propositions and definitions. Obligation, he wrote, was "the necessity of a free action under a categorical imperative of reason." And an action was permitted or licit when it was not contrary to obligation. This freedom of action was called a moral faculty (facultas moralis). 6 According to Kant, the only innate right inhering in all persons was a right to freedom (defined as "independence from being coerced by another's [End Page 302] choice") insofar as this freedom could coexist with the freedom of all others. 7 A corresponding universal law of Right established the rule: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone in accordance with a universal law." 8External laws imposed by another evidently did hinder one's freedom. Kant therefore held that a person was... (shrink)

The purpose of this article is to a%empt to provide a more precise answer to the question of Paul Vladimiri’s account of the concept of permissive natural law. This purpose is realized in two steps. First, a brief history of permissive natural laws in the tradition of medieval philosophy is discussed, and the historical context, in which Paul Vladimiri developed his theory of natural law, is outlined. Next, some excerpts from Vladimir’s writings are analysed, in which he uses (...) phrases indicating the presence of the concept of permissive law in his philosophy. (shrink)

> Future people count. There could be a lot of them. We can make their lives better. > > -- William MacAskill, What We Owe The Future > > [Longtermism is] quite possibly the most dangerous secular belief system in the world today. > > -- Émile P. Torres, Against Longtermism Philosophers,1 2 psychologists,3 4 politicians5 and even some tech billionaires6 have sounded the alarm about artificial intelligence (AI) and the dangers it may pose to the long-term future of humanity. (...) Some believe it poses an existential risk (X-Risk)7 to our species, potentially causing our extinction or bringing about the collapse of human civilisation as we know it. The above quote from philosopher Will MacAskill captures the key tenets of ‘longtermism’, an ethical standpoint that places the onus on current generations to prevent AI-related—and other—X-Risks for the sake of people living in the future.1 2 Developing from an adjacent social movement commonly associated with utilitarian philosophy, ‘effective altruism’, longtermism has amassed following of its own. Its supporters argue that preventing X-Risks is at least as morally significant as addressing current challenges like global poverty. However, critics are concerned that such a distant-future focus will sideline efforts to tackle the many pressing moral issues facing humanity now.8 9 Indeed, according to ‘strong’ longtermism,10 future needs arguably should take precedence over present ones. In essence, the claim is that there is greater expected utility to allocating available resources to prevent human extinction in the future than there is to focusing on present lives, since doing so stands to benefit the incalculably large number of people in later generations who will far outweigh existing populations.1 Taken to the extreme, this view suggests it would be morally permissible, or even required, to actively neglect, harm or destroy large swathes of humanity as …. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Ideas 62.3 (2001) 381-399 [Access article in PDF] Permissive Natural Law and Property: Gratian to Kant Brian Tierney In his Doctrine of Right Kant set out to formulate a theory of property that would be based on purely rational argumentation, that would abstract "from all spatial and temporal conditions," and that would be applicable to any person, "merely because and insofar as he (...) is free and has practical reason." But from the time when the work first appeared Kant scholars have found many difficulties in the teaching that he presented. Many of them relate to the idea of permissive natural law that Kant introduced at a key point to his argument.In a previous, complementary article I discussed in detail various apparent aporias that arose in Kant's treatment of this concept and suggested that we might understand his problems better by setting them in a broader historical context than those considered in standard works like those of Reinhard Brandt and Wolfgang Kersting. 1 This is the theme that I want to explore further in the present paper.To sum up briefly some of the difficulties in the Doctrine of Right: A central problem for Kant was to explain how rightful possession of individual property could emerge from a hypothetical state of nature where everything was common to all, where everyone had a right to everything. His argument was grounded on a concept of freedom understood as "a pure rational concept." Kant maintained that every person had an innate right to freedom and from this he deduced a universal law of Right: "[S]o act externally that the free use of your choice can coexist with the freedom of everyone." 2 But the person who first seized for himself what had been common to all evidently did encroach on the freedom of others (their freedom to use the property that had been taken). [End Page 381]To address this problem Kant formulated a "postulate of practical reason" concerning property. Citing the Roman law doctrine of res nullius he argued that external things could in principle be acquired. 3 Then he restated the postulate as a permissive law that obliged others to respect the claim of a first occupant. "This postulate can be called a permissive law (lex permissiva) of practical reason which gives us an authorization... to put all others under an obligation, which they would not otherwise have...." 4 But to put others under an obligation is to encroach on their freedom, which would be a violation of the universal law of Right. For Kant, laws that could be discerned by reason alone without promulgation by a legislator, were understood to be natural laws. 5 The universal law of Right and the permissive law of practical reason were both laws of this kind. It seems therefore that natural law contradicted itself. It prohibited and permitted an action at the same time.Other difficulties arose as the argument proceeded. Kant repeatedly asserted that rightful possession must depend on consent expressed in "a collective general (common) and powerful will," "a will that is united originally and a priori"; 6 but he acknowledged that such a general will would not exist in a state of nature before the institution of civil society and that an act of original acquisition would necessarily proceed from a unilateral will. "But the will that a thing is to be mine... can be only unilateral." 7 And yet Kant also wrote, "By my unilateral choice I cannot bind another to refrain from using a thing, an obligation he would not otherwise have." 8 Kant never did explain how a permissive law, allowing a person to act unilaterally, could impose an obligation on others.In my earlier discussion of Kant's work I indicated that it might be fruitful to approach these difficulties by investigating some previous ways of using the language of permissive natural law, especially as it related to the origin of property rights. There is indeed a whole earlier tradition of thought to be considered. An investigation of this material... (shrink)

Liberty and Law examines a previously underappreciated theme in legal history―the idea of permissive natural law. The idea is mentioned only peripherally, if at all, in modern histories of natural law. Yet it engaged the attention of jurists, philosophers, and theologians over a long period and formed an integral part of their teachings. This ensured that natural law was not conceived of as merely a set of commands and prohibitions that restricted human conduct, but also as affirming a realm (...) of human freedom, understood as both freedom from subjection and freedom of choice. Freedom can be used in many ways, and throughout the whole period from 1100 to 1800 the idea of permissive natural law was deployed for various purposes in response to different problems that arose. It was frequently invoked to explain the origin of private property and the beginnings of civil government. Several kinds of permissive natural law were identified. Permission could be positive or negative, depending on whether it was specifically conceded by a legislator or only tacitly allowed. It could free from sin or merely remit some temporal punishment that was due. It could commend some conduct without commanding it or permit some evil without condoning it. Medieval canonists used the concept of permissive natural law to harmonize the discordant texts that they found in their sources; William of Ockham found it a powerful tool in his defense of Franciscan poverty against papal criticisms; for Richard Hooker it justified both the constitutional structure and the ritual practices of the Anglican church; John Selden used it to uphold the inviolability of contracts, most importantly the contract of government; Hugo Grotius made it a central theme in his treatment of the conduct permissible in waging war; in the eighteenth century Jean Barbeyrac and Jean-Jacques Burlamaqui associated the idea with the emerging doctrine of natural rights. In Liberty and Law, Tierney has presented us with a magisterial and provocative way of interpreting legal history. (shrink)

Adiaphora and permissive natural law both conceptually pointed towards an arena of liberty in which the individual remained free to take up particular courses of action. In the Reformation debates over the external regulation of Christian freedom for the maintenance of peace and order, these two concepts became freighted with political significance; but they also in turn shaped attitudes over when and where obedience was due in relation to the civic regulation of liberty. Tudor apologetics deployed both ideas in (...) order to defend the English Reformation, especially the claim of the royal supremacy to have due authority to regulate ecclesiastical affairs in indifferent matters, limiting Christian freedom and requiring obedience. By situating these debates within the context of the conceptual development of adiaphora and permissive natural law from their original philosophical roots through to the Reformation, this article establishes the genealogy of claims that defined such apologetics. After surveying the seemingly intractable dilemmas in the thought of Thomas Starkey and John Whitgift over why obedience to lay ecclesiastical supremacy was due, this article considers the radical return to the permissive natural law traditions of the medieval period in the Elizabethan conformist thought of Richard Hooker. In this return, Hooker supplanted divine permissions and scriptural principles as the guide for the proper regulation of indifferent matters with an appeal to the light of reason as the divine instrument through which binding human laws are made to govern society and limit freedom for the public good, even in the life of the national church. (shrink)

(Under contract with Oxford University Press, Oxford Legal Philosophy series.) -/- This book is a legal and ethical study of state entrapment: that is, entrapment by law-enforcement agents or their deputies. -/- It approaches entrapment via three questions: definition (What makes an act one of entrapment?), permissibility (Under what conditions, if any, is entrapment permissible?), and implications (When someone has been entrapped, what remedy, if any, is appropriate? More broadly, how should the law respond?). It explains these questions, looks at (...) how the law and scholars have answered them, gives our answers to them, and is structured according to them. It treats these questions as distinct, and that of definition as prior (in a sense that it clarifies) to the others. -/- The methodology deployed combines applied analytical philosophy with approaches to comparative legal studies that are predominantly analytical and historical. The main focus, in terms of scope, is upon common-law jurisdictions in the Anglophone world. (shrink)

The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition (...) in moral theory – namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account – one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications. (shrink)

This Chapter is concerned with cases in which we are justified in performing an otherwise prohibited action but not required to perform it. My discussion focusses on cases in which conduct is permitted because it amounts to a ‘lesser evil’. What interests me is the curious nexus that these cases illustrate between justifying reasons and the conclusion that conduct is either permitted or required. So-called reason-based or ‘reasons-first’ accounts hold that our normative conclusions—our conclusions about what we are required to (...) do and what is permissible—are explained by our practical reasons. It is difficult to offer a reason-based account of lesser evils justifications that does not collapse the distinction between the required and the permissible with respect to justified conduct. Some justifying reasons generate mere permissions, rather than requirements. I consider several prominent attempts to account for the distinction. I conclude by suggesting that none of these attempts is adequate without the further concession that some reasons lack deontic or requiring force. (shrink)

Moral obligation and permissibility are usually thought to be interdefinable. Following the pattern of the duality definitions of necessity and possibility, we have that something’s being permissible could be defined as its not being obligatory to not do it. And that something’s being obligatory could be defined as its not being permissible to not do it. In this paper, I argue that neither direction of this alleged interdefinability works. Roughly, the problem is that a claim that some act is obligatory (...) or permissible entails that there is a moral law, whereas a negative claim that some act is not obligatory or not permissible does not. Nevertheless, one direction of the interdefinability can potentially be salvaged. I argue that, if we do not require the conceptual possibility of moral dilemmas, then there is a way to plausibly define obligation in terms of permissibility. I conclude that permissibility is the only feasible deontic primitive. (shrink)

Do individuals have a positive right of self-defence? And if so, what are the limits of this right? Under what conditions does this use of force extend to the defence of others? These are some of the issues explored by Dr Uniacke in this comprehensive 1994 philosophical discussion of the principles relevant to self-defence as a moral and legal justification of homicide. She establishes a unitary right of self-defence and the defence of others, one which grounds the permissibility of the (...) use of necessary and proportionate defensive force against culpable and non-culpable, active and passive, unjust threats. Particular topics discussed include: the nature of moral and legal justification and excuse; natural law justifications of homicide in self-defence; the Principle of Double Effect and the claim that homicide in self-defence is justified as unintended killing; and the question of self-preferential killing. This is a lucid and sophisticated account of the complex notion of justification, revolving around a critical discussion of trends in the law of self-defence. (shrink)

Input/output logics are abstract structures designed to represent conditional obligations and goals. In this paper we use them to study conditional permission. This perspective provides a clear separation of the familiar notion of negative permission from the more elusive one of positive permission. Moreover, it reveals that there are at least two kinds of positive permission. Although indistinguishable in the unconditional case, they are quite different in conditional contexts. One of them, which we call static positive permission, guides the citizen (...) and law enforcement authorities in the assessment of specific actions under current norms, and it behaves like a weakened obligation. Another, which we call dynamic positive permission, guides the legislator. It describes the limits on the prohibitions that may be introduced into a code, and under suitable conditions behaves like a strengthened negative permission. (shrink)

The article explores the long-term consequences of permissive constitutional arrangements, drawing on a comparative study of Israel, India and Sri Lanka. In all three countries, constitutional drafters at the foundational stage adopted permissive arrangements that avoided controversial decisions on conflicted identity-related issues. In all three cases, three to six decades after independence, the permissive constitutional approach was replaced by more decisive formal constitutional principles. Such unpermissive constitution making was meant to limit the range of options available for (...) future legislation or constitutional interpretation by courts, and preferred nationalist, religious and ethnocentric identity. This article seeks to investigate why such developments occurred in the three countries, and what can be learned from them about the durability and normative advantages of permissive constitutional arrangements. Empirical analysis of the long-term consequences of permissive arrangements illustrates the limited durability that appeared to characterize some of these arrangements. The present assessment also reveals how in some cases, the main ideational conflict at the heart of the constitutional debates has shifted over the years. Nevertheless, the central argument put forth by this article is that, despite ongoing challenges, permissive constitutional arrangements should still be regarded as a valuable constitutional tool for advancing political compromise and facilitating stable democratic institutions. The analysis demonstrates the crucial role permissive constitutions may have as a political tool designed to circumvent violent conflicts and as an analytical tool, thereby offering insight into current constitutional conflicts over ideational issues. (shrink)

This research paper examines the concept of “legitimate defense” under the UAE Civil Transactions Law and the Penal Code, focusing on the requisite conditions for deeming an act of aggression as legitimate defense and consequent impact for penal and civil liabilities. Legitimate defense is recognized as ground for permissibility under the UAE Penal Code. Thus, an individual who acts in legitimate self-defense is not penally liable. Exemption from punishment is granted only if the defensive act was committed to protect oneself, (...) one’s property, or the person or property of another, and the act must have been necessary to repel an aggression and respond to an imminent, unlawful threat. The Civil Transactions Law regards legitimate defense as a ground for exemption from tort liability, meaning that the perpetrator of a harmful act, undertaken in defense, is not held liable for damages. This law stipulates that the perceived threat must be immediate, and the act of defense proportionate to the aggression. The study adopts an analytical methodology to examine the legal provisions related to legitimate defense in both statutes and incorporates comparative law for aspects not specifically addressed by the UAE legislator. (shrink)

Survival is obviously important, but sometimes, under particular circumstances, life can become miserable, difficult, or intolerable; at that point, survival can seem like a punishment or misfortune. A patient who is in a vegetative state, unable to sustain life with dignity, and who is suffering from a terminal illness, has freedom to choose between life and death. The practice of "mercy killing," or euthanasia is an ongoing debate in the discussion of medical ethics. When it comes to making euthanasia decisions (...) for their incompetent patients, medical practitioners are faced with a problem. The moral dilemma of whether something is morally acceptable or not is moral in nature. The "end of life" issue is related to euthanasia should be legally acceptable under specific circumstances, such as when a patient is terminally sick, death is imminent, and treatment is unsuitable and ineffective. It is morally acceptable when a patient makes the autonomous decision to end his life or asks someone else to help him. In order to make an informed decision, the patient needs to be thoroughly informed about the diagnosis and prognosis of an incurable, deadly condition. However, in the context of a Muslim-majority population, where any argument for the legality of suicide (and, by extension, physician-assisted suicide) would be automatically rejected as contrary to Islamic moral and jurisprudential principles, this is an extraordinary request for the health service authorities of a developing country to consider. This paper discusses mainly non-voluntary active euthanasia. The discussion is conducted by giving a case study from Bangladesh. The situation in Bangladesh will also be examined in the paper's last section with regard to the permissibility of active euthanasia, specifically whether it can be done in our state given the socio-cultural-religious practices that are now in place. (shrink)

Law, Economics, and Morality examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis is normatively objectionable. Moderate deontology prioritizes such values as autonomy, basic liberties, truth-telling, and promise-keeping over the promotion of good outcomes. It (...) holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good is at stake. While moderate deontology conforms to prevailing moral intuitions and legal doctrines, it is arguably lacking in methodological rigor and precision. Eyal Zamir and Barak Medina argue that the normative flaws of economic analysis can be rectified without relinquishing its methodological advantages and that moral constraints can be formalized so as to make their analysis more rigorous. They discuss various substantive and methodological choices involved in modeling deontological constraints. Zamir and Medina propose to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. Law, Economics, and Morality presents the general structure of threshold functions, analyzes their elements and addresses possible objections to this proposal. It then illustrates the implementation of constrained CBA in several legal fields, including contract law, freedom of speech, antidiscrimination law, the fight against terrorism, and legal paternalism. (shrink)

If you injure me, it matters morally whether it was an accident or you did it intentionally, and whether you did it because you thought it would be fun. I take it that any ethical theory will have to include some explanation of why this is. There are two dominant views in the current debate about the moral significance of an agent’s intentions: The one is that the intention with which someone acts at least sometimes determines whether what she does (...) is right or wrong (permissible or impermissible). Proponents of the so-called doctrine of double-effect (DDE) hold that an action which has certain bad outcomes may be permissible if the bad consequences are only foreseen, even if the same action would be morally wrong if they were intended as a means. This is not the only way in which intentions could make a difference to an action’s permissibility, but it is the best-known defense that they do. According to the second view, intentions don’t matter in this way: they do not determine the permissibility of an action. They do matter, but in a different dimension of normative assessment: They determine whether the agent is a good or a bad person; or alternatively: they determine the “moral worth” of an action or its “meaning”, including its praiseworthiness or blameworthiness , or the severity of a wrong-doing. The main thesis is what Thomson called “The Irrelevance-of-Intentions-to-Permissibility Thesis” (for short: IIP) -/- [IIP] “It is irrelevant to the question whether X may do alpha what intention X would do alpha with if he or she did it.” -/- IIP is driven in part by skepticism about DDE: since – according to proponents of IIP - DDE is false, we must explain the relevance of intentions and reasons in a different way. Proponents of IIP tend not to consider the possibility that intentions might matter to permissibility in ways that are different from DDE. In this paper I do not focus on the arguments for or against DDE, but investigate IIP itself more closely, and look at some of the arguments for and against it. (shrink)

A significant and important ethical tension in resource allocation and public health ethics is between utility and equity. We explore this tension between utility and equity in the context of health AI through an examination of a diagnostic AI screening tool for diabetic retinopathy developed by a team of researchers at Duke-NUS in Singapore. While this tool was found to be effective, it was not equally effective across every ethnic group in Singapore, being less effective for the minority Malay population (...) than for the Chinese majority. We discuss the problematic normative nature of bias in health AI and explore the ways in which bias can interact with various forms of social inequalities. From there, we examine the specifics of the diabetic retinopathy case and weigh up specific trade-offs between utility and equity. Ultimately, we conclude that it is ethically permissible to prioritise utility over equity where certain criteria hold. Given that any medical AI is more likely than not to have lingering bias due to bias in the training data that may reflect other social inequalities, we argue that it is permissible to implement an AI tool with residual bias where: (1) its introduction reduces the influence of biases (even if overall inequality is worsened), and/or (2) where the utility gained is significant enough and shared across groups (even if unevenly). (shrink)

The author proves that rejecting the existence of permissive norms and limitation of norms to prohibitions and commands alone is possible only with reducing the idea of a function. The essence of the function is then the ability of the expression to generate independently the universal norm formation. Such manipulation is easy on the level of logical analysis, but proves risky from other points of view. If we want the deontic logic, which we construct, to consider the fact that (...) permission is pragmatically necessary for the law-maker to convey his normative preferences, we must solve the consequences of the adopted structure of the function of norms, which originate on the socio-linguistic level. It appears, however, that due to a lack of a pragmatic theory useful for lawyers, there is no proof that the pragmatically strong permission can be expressed by means of a lot of prohibitions and commands (dos and don’ts). Besides, reducing permissions only to the language of legal rules is an obligation to accept the structure of an act of communication, which can find its full motivation in the Husserl’s structure of the direct cognition. (shrink)

In this paper, I offer a personal and professional narrative of how Canada went from prohibition to permission for medical assistance in dying. I describe the legal developments to date and flag what might be coming in the near future. I also offer some personal observations and reflections on the role and impact of bioethics and bioethicists, on what it was like to be a participant in Canada's law reform process, and on lessons that readers in other jurisdictions might take (...) from Canada's experience. (shrink)

There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what Laing calls the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for legal (...) regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal. The only alternative to modern liberal autonomy is assumed to be radical oppression, in which the State intervenes in the individual’s life to impose unwarranted measures designed to further its own ends. The legacy of Stalin, Hitler and other modern tyrants has undermined conceptual appeals to the common good. So widespread is this liberal assumption in the Western, English-speaking world that critics of the outlook embodied by MLA are customarily regarded with suspicion and charged with paternalism, narrow-mindedness and intolerance. Laing highlights contradictions inherent in the modern liberal tradition. She argues that there is a certain reliance on the notion of the common good within the natural law tradition that is instructive. According to this view, the common good constitutes a mean between two extremes: on the one hand, contemporary liberalism’s over-insistence on radical individual autonomy and, on the other hand, totalitarianism’s over-emphasis on collective social benefit. There is, I will argue, substantial terrain between the conceptual excesses of modern liberalism and oppressive tyranny that needs to be acknowledged and discussed. (shrink)

"Republicanism" in Kant's political philosophy describes the type of state and the kind of politics demanded by freedom. Thus understood, republicanism expresses the limits of practical reason in politics. ;Kant sets his political thought against Hobbes' empirical description of political individuals, for whom norms arise through imaginative "picturing" of various conditions. For Kant free practical subjects are motivationally independent of sensed objects and possess ability for self-legislation . Kant further maintains that ideas are "regulative", not constitutive, of human understanding, such (...) that correct use of them requires knowledge of their "principles." ;Because autonomy governs internal determinations, it cannot be the principle of republicanism, which as a matter of "right" concerns actions in their external aspect alone. Actions are subject only to moral possibility, or "permission". Kant's "permissive law" can be understood as law only if moral obligation is distinguished from the specification of duty, a distinction drawn by Achenwall, who influenced Kant. Right built on "permission" connects "first taking" and "intelligible possession". This explains two notions permeating Kant's political writings: obedience to state authority as such, and skepticism regarding any identification of existing arrangements with the idea of a perfectly rightful state. ;Thus conceived, right legitimizes various constitutions. The republican idea and its principle of "representation" are civil elaborations of permission's skeptical aspect. State authority represents the "universal united will", and cannot legitimately be resisted. ;This interpretation faces two challenges. One is unreserved cosmopolitanism, the claim that no right is conclusive without global authority. However, this position misinterprets "permission" as a preliminary violation of right, and therefore not as law. Secondly, the state may be seen as "rightfully" constituted for "fairness". This mistakenly attributes to Kant a Hobbesian view of individuals, and employs ideas not according to their principles , but in a direct, "pictorial" manner . ;Kant's "republicanism" is not an institutional arrangement but a principle of governance. The republican idea is the condition of the possibility of gradual, nonrevolutionary progress. Kant's "permission"---through its lack of specification and its deference to existing authority---is the expression of freedom in external contexts and the foundation of properly critical politics. (shrink)

Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, (...) some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something. (shrink)

520 "Allan Beever lays the foundation for a timely philosophical and empirical study of the nature of law with a detailed examination of the structure of evolving law through declaratory speech acts. This engaging book demonstrates both how law itself is achieved and also its ability to generate rights, duties, obligations, permissions and powers. Structured into three distinct parts - the philosophy of law and jurisprudence, the structure of the social word and the ontology of law, and the reconstruction of (...) the philosophy of law - the author provides insight into law as a human institution and reveals that central debates are often based on misunderstandings of interpretation and intentionality. Inspired by the philosophy of John Searle alongside other well-respected legal theorists, the author also analyses both sides of the mainstream jurisprudential divide in its current state, in particular the theory of legal positivism. Examining all aspects of law and answering the important question of 'What is Law?', this book will be an invaluable resource for academics and advanced students in law schools and philosophy departments. (shrink)

We all have agent-relative permissions to give extra weight to our own well-being. If you and two strangers are drowning, and you can save either yourself or two strangers, you have an agent-relative permission to save yourself. But is it possible for you to ‘vest’ your agent-relative permissions in a third party – a ‘proxy’ – who can enact your agent-centered permissions on your behalf, thereby permitting her to do what would otherwise be impermissible? Some might think that the answer (...) is ‘no’; it is definitive of agent-centered permissions that they apply only to the individuals ineliminably referenced in the content of that reason, which means that they lack reason-giving force for any ostensible proxy. The purpose of this paper is to show that vesting agent-relative permissions is indeed possible, provide an account of how agent-relative permissions are vested by considering the structure of rights more generally, and show that we have a right to vest such permission in this way. (shrink)

This book presents a broad overview of succession law, encompassing aspects of family law, testamentary law and legal history. It examines society and legal practice in Europe from the Middle Ages to the present from both a legal and a sociological perspective. The contributing authors investigate various aspects of succession law that have not yet been thoroughly examined by legal historians, and in doing so they not only add to our knowledge of past succession law but also provide a valuable (...) key to interpreting and understanding current European succession law. Readers can explore such issues as the importance of a father’s permission to marry in relation to disinheritance, as well as inheritance transactions and private, dynastic and cross-border successions. Further themes addressed by the expert contributors include women’s inheritance rights, the laws of succession for the prince in legal consulting, and succession in the Rota Romana’s jurisprudence. (shrink)

What makes it permissible to reach out to hold someone’s hand on a first date, or to rub a friend’s back when she is crying? This paper, a contribution to the special issue on Doug Husak, argues that conventions, context, and relationships play a role in shifting normative boundaries, such that the default rule becomes that it is permissible to touch someone until she dissents. Part I of this paper focuses on convention-type cases, contrasting dates with the intentional touchings that (...) occur on crowded streets or while playing football. Part II then addresses the range of normative justifications that track these different cases. Part III adds a different way that dissent-sensitive permissions can arise—from relationships and common ground. Part IV unearths the underlying rights-structure that my view presupposes and returns to the question of whether the theory I have on offer is one of consent. Part V argues that this approach, that these are alterations of permissibility, is superior to the view that conventions only impact the actor’s blameworthiness by rendering his belief reasonable. Part VI raises questions of whether our understanding of consent dictates our understanding of dissent. (shrink)

Does criminal liability require an act? -- Motive and criminal liability -- The costs to criminal theory of supposing that intentions are irrelevant to permissibility -- Transferred intent -- The nature and justifiability of nonconsummate offenses -- Strict liability, justice, and proportionality -- The sequential principle of relative culpability -- Willful ignorance, knowledge, and the equal culpability thesis : a study of the significance of the principle of legality -- Rapes without rapists : consent and reasonable mistake -- Mistake of (...) law and culpability -- On the supposed priority of justification to excuse -- Partial defenses -- The "but everybody does that!" defense -- The de minimis "defense" to criminal liability -- Why punish the deserving -- Malum prohibitum and retributivism -- Already punished enough. (shrink)

This paper examines whether an agent becomes liable to defensive harm by engaging in a morally permissible but foreseeably risk-imposing activity that subsequently threatens objectively unjustified harm. It first clarifies the notion of a foreseeably risk-imposing activity by proposing that an activity should count as foreseeably risk-imposing if an agent may morally permissibly perform it only if she abides by certain duties of care. Those who argue that engaging in such an activity can render an agent liable to defensive harm (...) ground this liability in the luck egalitarian thought that we may justly hold individuals responsible for the consequences of their voluntary choices. Against this, I argue that a luck egalitarian commitment to holding people responsible cannot, by itself, ground liability to defensive harm. It can help ground such liability only against the backdrop of a distributively just society, and only if further considerations speak morally in favour of attaching certain well-defined costs to individuals’ risk-imposing choices. I conclude by suggesting that if an account of liability applies robustly across distributively just and unjust contexts alike, then what grounds an agent’s liability is plausibly not her responsibility for threatening objectively unjustified harm, but her culpability for doing so. (shrink)

Many people believe in the intention principle, according to which an agent’s intention in performing an act can sometimes make an act that would otherwise have been permissible impermissible, other things being equal. Judith Jarvis Thomson, Frances Kamm and Thomas Scanlon have offered cases that seem to show that it can be permissible for an agent to act even when the agent has bad intentions. If valid, these cases would seem to cast doubt on the intention principle. In this paper, (...) I point out that these cases have confounding factors that have received little attention in the literature. I argue that these confounding factors undermine the putative force of these cases against the intention principle. Indeed, when cases without these confounding factors are considered, it becomes clear, so I argue, that intentions can be relevant for the permissibility of an act. (shrink)

Critical ethical questions arise concerning whether studies among adolescents of new behavioral and biomedical HIV preventive interventions such as Pre-Exposure Prophylaxis should obtain parental permission. This paper examines the relevant regulations and ethical guidance concerning waivers of parental permission, and arguments for and against such waivers. Opponents of such waivers may argue that adolescent decision-making is “too immature” and that parents always have rights to decide how to protect their children. Yet requiring parental permission may put adolescents at risk, and/or (...) limit adolescent participation, jeopardizing study findings’ validity. This paper presents recommendations on when researchers and Institutional Review Boards should waive parental permission, and what special protections should be adopted for adolescents who consent for themselves, e.g., assuring adolescent privacy and confidentiality, screening for capacity to consent, and identifying adolescents who are at elevated risk from study participation. We also present a series of specific areas for future research to design tools to help make these assessments, and to inform researcher and IRB decisions. These recommendations can help ensure that research is conducted that can aid adolescents at risk for HIV, while minimizing risks and protecting these individuals' rights as much as possible. (shrink)

Contemporary philosophers sometimes present the complex relationships that can exist between permission, precept and prohibition within a given structure of law in a language of symbolic logic or in illustrative diagrams. Other modern scholars have pointed out that early formulations of the basic ideas they employ can be found in writers of the seventeenth and eighteenth centuries, including Leibnitz and Bentham and, especially, the German jurist Gottfried Achenwall. This article shows that the same structure of ideas was included centuries earlier (...) in the work of Marsilius of Padua, and that his argument too can be presented as a modern 'deontic hexagon'. It concludes with a discussion of how Marsilius' engagement with the contemporary dispute over Franciscan poverty helped to shape his teaching in this area. (shrink)

I attempt to describe the several costs that criminal theory would be forced to pay by adopting the view (currently fashionable among moral philosophers) that the intentions of the agent are irrelevant to determinations of whether his actions are permissible (or criminal).

Focusing on the ‘problem’ of pleasure _Law, Orientalism and Postcolonialism_ uncovers the organizing principles by which the legal subject was colonized. That occidental law was complicit in colonial expansion is obvious. What remains to be addressed, however, is the manner in which law and legal discourse sought to colonize individual subjects as subjects of law. It was through the permission of pleasure that modern Western subjects were refined and domesticated. Legally sanctioned outlets for private and social enjoyment instilled and continue (...) to instil within the individual tight self-control over behaviour. There are, however, states of behaviour considered to be repugnant to, and in excess of, modern codes of civility. Drawing on a broad range of literature,, yet concentrating on the experience of British India, the argument here is that such excesses were deemed to be an Oriental phenomenon. Through the encounter with the Orient and with the fantasy of its excess, Piyel Haldar concludes, the relationship between the subject and the law was transformed, and must therefore be re-assessed. (shrink)

Antony Duff’s The Realm of Criminal Law offers an appealing moral reconstruction of the criminal law. I agree that the criminal law should be understood to predicate punishment upon sufficient proof that the defendant has committed a public wrong for which she is being held to account and censured. But the criminal law is not only about censoring people for public wrongs; it must serve other purposes as well, such as preventing people from committing serious crimes and more generally from (...) violating reasonable regulations. These purposes, and perhaps retributive justice, require the criminal law also to mete out harsh treatment, but only insofar as such treatments are proportional to the culpable wrong committed. The problem for the criminal law is that many mala prohibita crimes consist of a minor wrong but also call for a relatively severe punishment. To accommodate that mismatch, it is necessary to complement the criminal law, as Duff and I conceive of it, with what I call “penal law.” Penal law relies on forfeiture to explain why hard treatment is permissible. The forfeiture must be fair, and it comes with its own proportionality limits. But those limits are not as strict as the limits implicit in the criminal law. It allows for penalties that are harsher than the punishments that could justifiably be meted out for many mala prohibita offenses. One and the same act can count as a crime and a penal infraction, and one and the same criminal justice system can and should handle both crimes and the penal infractions. It is, I think, only in that way that we can accommodate both the need to prevent public wrongdoing and the distinct importance of holding people accountable for the commission of public wrongs. (shrink)

The essays in this volume are the result of a project on Values in Tort Law directed by the Westminster Institute for Ethics and Human Values. We are indebted to the Board of Westminster Col lege for its financial support. The project involved two meetings of a mixed group of lawyers and philosophers to discuss drafts of papers and general issues in tort law. Beyond the principal researchers, whose papers appear here, we are grateful to John Bargo, Dick Bronaugh, Craig (...) Brown, Earl Cherniak, Bruce Feldthusen, Barry Hoffmaster and Steve Sharzer for their helpful discussion, and to Nancy Margolis for copy editing. All of these papers except one have appeared before in the journal Law and Philosophy (Vol. 1 No.3, December 1982 and Vol. 2 No.1, Apri11983). Chapman's paper which was previously published in The University of Western Ontario Law Review (Vol. 20 No.1, 1982) appears here with permission. Westminster Institute for Ethics and Human Values, M.D.B. Westminster College, London, Canada B.C. vii INTRODUCTION The law of torts is society's primary mechanism for resolving disputes arising from personal injury and property damage. (shrink)

Kant’s (rational) understanding of possession and property rights is conceptually and ideally placed in a comparative relation to private law theory, civil law doctrine, and positive legislation. Property law in the objective sense as “a set of all the laws concerning real”, external “mine and yours” is enforceable exclusively in the civil state where the final acquisition of property rights occurs, the a priori of which is reflected in possession. According to Kant, control over things in possession is a noumenon, (...) a mental (rational) connection between a person and a thing. In contrast, a phaenomenon, a sensible (physical) connection between a thing and a person, is only its physical reflection, whereby such processing of possession can serve as an essential explanation of the so-called “spiritualized possession”, which, as a belonging genus proximum with intelligible possession, was also mentioned in the civil law doctrine. Every establishment of property rights is preceded by the original common property, common to all people as a practical rational concept that, in its own right, contains the principle that people can use a certain place on Earth according to “legal laws”. Property rights and their acquisition arise from the mind because they are based on intelligible possession, that is, power and an intelligible relationship between a person and a thing, in which a person, as the owner of a thing, of his own free will, obliges others with regard to the use of the thing. The stated will must follow the axiom of external freedom, the postulate of power, and the united will of all. Under permissive law, we are authorized to appropriate external facilities as we choose to the extent that our use does not infringe on another person’s freedom. Otherwise, we are deprived of our own freedom, and any limitation of (private) property is against our individual and united will of all in recognizing property rights. (shrink)

This dissertation develops a Kantian philosophical framework for understanding our individual obligations under public law. Because we have a right to do anything that is not wrong, the best interpretation of Immanuel Kant's Universal Principle of Right tracks the two ways--material and formal--in which actions can be wrong. This interpretation yields surprising insights, most notably a novel formulation of Kant's standard for formal wrongdoing. Because the wrong-making property of a formally wrong action does not depend on whether or not the (...) action in question has been prohibited by statute, Kant's legal philosophy is consistent with a natural law theory of public crime. Moreover, because the law can obligate us only by establishing a universal external incentive to obey its commands, statutes that impose only fines on nominal violators do not constrain our lawful options. Instead, if they are otherwise just, such statutes must be regarded as rightful permissive laws, according to which we may incur liabilities through our voluntary choices. (shrink)

Nomic realists have traditionally put laws to work within a theory of natural modality, in order to provide a metaphysical source for causal necessitation, counterfactuals, and dispositions. However, laws are well-suited to perform other work as well. Necessitation is a widespread phenomenon and includes cases of categorial, conceptual, grounding, mathematical and normative necessitation. A permissive theory of universals allows us to extend nomic realism into these other domains. With a particular focus on grounding necessitation, it is argued that the (...) sorts of reasons for positing laws in the natural causal domain also apply in other domains. Laws might well be the source of all first-order modality. (shrink)

ABSTRACTCriminal law confers powers and grants permissions. In doing so it does not treat all alike. Some state officials are given powers and permissions that are much more extensive than those given to private persons. As a result, steps taken to achieve criminal justice are often serious crimes if taken by members of the latter group, while being perfectly lawful when taken by members of the former. My question here is what justifies this asymmetry. I consider two candidate explanations. One (...) appeals to impossibility. Another appeals to efficiency. While explanations of the first kind have become increasingly popular, I offer some reasons to doubt that they succeed. I conclude with a preliminary defence of a view that appeals to efficiency. (shrink)

Two articles have appeared in Law and Philosophy that provide detailed criticisms of aspects of my account of the justification of individual self-defense. One of these articles misconstrues central aspects of my account. The other raises a less central, but nonetheless an important issue that invites clarification. The criticisms raised in these two articles to which I respond here have important bearing on the nature of the justification of self-defense.