En este trabajo se explora el rol que la verdad de los enunciados fácticos juega en la aplicación de normas jurídicas y en la justificación de las decisiones judiciales. Se sostiene que la verdad es irrelevante respecto de la aplicación de normas jurídicas, entendida esta última en términos «inferenciales», y que lo es también respecto de la justificación interna de las decisiones que aplican esas normas. Se argumenta luego que la verdad de la premisa fáctica tampoco es condición necesaria de (...) la justificación externa, en diferentes sentidos. Se sostiene, en definitiva, que la verdad de la premisa fáctica no es condición necesaria de la justificación de la decisión judicial en ningún sentido plausible en que dicha justificación pueda ser evaluada. Esto no significa, sin embargo, que la verdad de dicha premisa sea irrelevante. (shrink)

Critics of Hartian legal positivism have characterized it as an error theory about judicial discourse —more precisely, about judicial argument in contexts of disagreement about proper interpretive methodology—. The critics have also suggested that Hartian positivism, like error theories in other areas of philosophy, is to be presumed false. The purpose of this paper is to give a precise account of the nature and extent of the error assigned to judges by Hartian positivists. It will (...) be argued that Hartian positivism, even if it can be understood as a form of error theory, should not be likened to, say, error theories in metaethics, where the relevant error is pervasive and mysteriously enduring.Resumen:Los críticos del positivismo jurídico hartiano han caracterizado este enfoque como una teoría del error sobre el discurso judicial —concretamente sobre la argumentación judicial en el contexto de desacuerdos relacionados con una metodología de interpretación apropiada—. Los críticos también han sugerido que el positivismo hartiano, al igual que otras teorías del error en otros campos de la filosofía, ha de ser tomada por falsa. El propósito de este artículo es ofrecer una explicación más cuidadosa de la naturaleza y alcance del error que los positivistas hartianos atribuyen a los jueces. Se argumentará que el positivismo hartiano, aun cuando pudiera ser entendida como una forma de teoría del error, no debería ser relacionada con, por ejemplo, teorías del error en metaética, donde el error relevante es omnicomprensivo y misteriosamente permanente. (shrink)

In 2001, three non-Aboriginal men in their twenties were charged with the sexual assault of a twelve year old Aboriginal girl in rural Saskatchewan. Legal proceedings lasted almost seven years and included two preliminary hearings, two jury trials, two retrials with juries, and appeals to the provincial appeal court and the Supreme Court of Canada. One accused was convicted. The case raises questions about the administration of justice in sexual assault cases in Saskatchewan. Based on observation and analysis of the (...) record, this paper: (1) examines relationships between legal errors dealing with availability of the defence of “belief in consent” and interpretation of the “all reasonable steps” provision, the need for retrials, and apprehended race-gender-age bias and discrimination; and 2) proposes incremental and systemic remedies to address the weaknesses in police, prosecutorial and judicial policy and practice highlighted by this case. (shrink)

Este artículo revisa los problemas relacionados con la distinción actual entre Ética pública y Ética privada; una distinción basada en una tesis reduccionista, según la cual los políticos y empleados públicos son los únicos sujetos agentes en los asuntos de Ética pública. El autor destaca especialmente que la noción actual de Ética Pública cae en el error de aislar en el espacio privado, cuestiones relacionadas con la Ética pública. Un concepto tan limitado, es un gran error que ha (...) servido para ocultar del foco de la Ética Pública una gran cantidad de asuntos vitales que van más allá del campo de interrelación público-privado. Los partidos políticos, los sindicatos, los contribuyentes, los contratistas, los medios de comunicación, las personas subsidiadas, los ciudadanos en general; todos ellos tienen un papel muy importante en la esfera pública, y por lo tanto son agentes en temas de Ética Pública. Por estas razones, el autor refuta la visión estrecha del concepto actual de Ética Pública y cree imprescindible repensarlo, objetiva y subjetivamente. Por otra parte, este estudio examina el nuevo panorama de los "códigos de ética" en España, con una mirada crítica cuando son sólo normas legales acompañadas de sanciones y no verdaderos “códigos de ética”. Estos principios, llamados "principios éticos", deberían ser deberes que los funcionarios públicos poseen por sí mismos y no por imposición. Por el contrario, en el caso que examinamos, esos principios son claramente deberes establecidos en la Constitución Española de 1978 y representan las obligaciones más primarias, superlativas y básicas de un empleado público. En un estado de duda moral, los códigos podrían ser útiles para proporcionar consejo, dando una regla para resolver el dilema ético. El autor reconoce que, en determinadas circunstancias, en tales casos, los códigos de ética pueden ayudar a los servidores públicos como guía en sus decisiones. Sin embargo, la obligación de respetar y garantizar el respeto de los mandatos constitucionales y la prohibición de la discriminación contra las personas por motivos de raza, sexo, religión.., u otras circunstancias, no plantean cuestiones morales. Por esa razón, el autor considera que el Estatuto Básico del Empleado Público en España comete un error al establecer como un principio ético, el deber de cumplir con la Constitución; el más alto deber legal que uno puede imaginar en el caso de los servidores públicos. (shrink)

Este artículo revisa los problemas relacionados con la distinción actual entre Ética pública y Ética privada; una distinción basada en una tesis reduccionista, según la cual los políticos y empleados públicos son los únicos sujetos agentes en los asuntos de Ética pública. El autor destaca especialmente que la noción actual de Ética Pública cae en el error de aislar en el espacio privado, cuestiones relacionadas con la Ética pública. Un concepto tan limitado, es un gran error que ha (...) servido para ocultar del foco de la Ética Pública una gran cantidad de asuntos vitales que van más allá del campo de interrelación público-privado. Los partidos políticos, los sindicatos, los contribuyentes, los contratistas, los medios de comunicación, las personas subsidiadas, los ciudadanos en general; todos ellos tienen un papel muy importante en la esfera pública, y por lo tanto son agentes en temas de Ética Pública. Por estas razones, el autor refuta la visión estrecha del concepto actual de Ética Pública y cree imprescindible repensarlo, objetiva y subjetivamente. Por otra parte, este estudio examina el nuevo panorama de los "códigos de ética" en España, con una mirada crítica cuando son sólo normas legales acompañadas de sanciones y no verdaderos “códigos de ética”. Estos principios, llamados "principios éticos", deberían ser deberes que los funcionarios públicos poseen por sí mismos y no por imposición. Por el contrario, en el caso que examinamos, esos principios son claramente deberes establecidos en la Constitución Española de 1978 y representan las obligaciones más primarias, superlativas y básicas de un empleado público. En un estado de duda moral, los códigos podrían ser útiles para proporcionar consejo, dando una regla para resolver el dilema ético. El autor reconoce que, en determinadas circunstancias, en tales casos, los códigos de ética pueden ayudar a los servidores públicos como guía en sus decisiones. Sin embargo, la obligación de respetar y garantizar el respeto de los mandatos constitucionales y la prohibición de la discriminación contra las personas por motivos de raza, sexo, religión.., u otras circunstancias, no plantean cuestiones morales. Por esa razón, el autor considera que el Estatuto Básico del Empleado Público en España comete un error al establecer como un principio ético, el deber de cumplir con la Constitución; el más alto deber legal que uno puede imaginar en el caso de los servidores públicos. (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier (...) in R v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)

Legal systems must proceed in the face of two conceptions of procedural fairness. The first, embodied in the rule of law ideal, calls for clear rules, laid down in advance and susceptible to mechanical application in individual cases. The second calls for a high degree of individuation, on the theory that fairness requires particularized consideration of the whole person. Both conceptions can be found in judicial interpretation of the due process clause of the American Constitution, which sometimes requires rule-bound (...) decisions, and sometimes requires individuation. Both conceptions have a great deal of appeal in particular settings. The choice between the two depends largely on an investigation of the costs of decision and the costs of error. In addition, "planning costs" play a large role; where people need to be able to plan in advance, rule-bound judgments look fairer and much more attractive even if they produce significant unfairness and arbitrariness. (shrink)

In a recent paper, Graf and Komatsu (1994) argued that the process dissociation procedure (Jacoby, 1991) is limited in its ability to separate and measure conscious and unconscious forms of memory and so should be "handIed with caution". Given that the study of unconscious influences has always posed a difficult problem for memory researchers, we agree with the general emphasis on caution. In this paper, we too advocate caution, especially as it applies to the use of indirect tests, assessing Graf (...) and Komatsu’s critique, and using the process dissociation procedure. We address the substantive issues raised by Graf and Komatsu and also point out the errors, both factual and logical, in their paper. Any method proposing to provide separate measures of conscious and unconscious influences requires judicious use and a careful examination of its underlying assumptions. The assumptions underlying the process dissociation framework are supported by a large number of experiments spanning a diverse range of.. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Aristophanes: ThesmophoriazusaeElizabeth W. ScharffenbergerColin Austin and S. Douglas Olson, eds. Aristophanes: Thesmophoriazusae. With intro. and comm. Oxford: Oxford University Press, 2004. cviii + 363 pp. 2 color plates. Cloth, $195.This long-awaited edition of Thesmophoriazusae is a welcome newcomer to the Oxford University Press series of commentaries on the comedies of Aristophanes. Colin Austin and S. Douglas Olson have collaborated to produce a generous work of scholarship that offers (...) a comprehensive perspective on this Aristophanic comedy, which playfully imagines the tragedian Euripides and his kinsman-by-marriage (the "Inlaw") fighting for their lives as they seek to allay the wrath of the matrons of Athens, who have been angered by Euripides' representations of female characters, during an annual women's festival (the Thesmophoria) honoring Demeter and Persephone. The volume offers a new and carefully edited text, which incorporates emendations that Austin has already proposed in separately published articles, and an informative apparatus criticus. On every page of the text there is a second apparatus (standard in Oxford University Press's recently published editions of Aristophanes) that indicates where words and verses are cited in the works of later authors (e.g., Philostratus, Lucian) and [End Page 140] in ancient and medieval lexica (e.g., Hesychius, the Suda). The introduction and meticulously detailed commentary supply extensive information about the comedy, the circumstances of its original production in 411 b.c.e., its relationship to other Aristophanic dramas, the history of its transmission, and a host of related topics. A bibliography, two indices (one for Greek words and one for general references), and two color plates of the Würzburg krater, representing the comedy's parody of Euripides' Telephus, complete the volume. Students and scholars with a variety of interests and needs will find this edition of Thesmophoriazusae most useful. Thanks to its editors' erudition and the thoughtfulness of their presentation, it is also a pleasure to read.In the introduction's summary of Thesmophoriazusae's manuscript tradition (lxxxix-xcviii), the survey of the most frequent errors in Ravennas 429 ("R," the tenth-century manuscript that is the only independent witness for its complete text) permits readers to get a sense of the kinds of emendations that have become common property in most of the editions published since the Renaissance. These conventional emendations aside, Thesmophoriazusae's text still leaves much room for editorial discretion, which Austin and Olson always exercise judiciously (even if one disagrees on occasion with their choices). Most importantly, a keen appreciation of Aristophanes' humor consistently informs their decisions concerning emendation, as is revealed by the interpretations of the jokes in 12 (defending the verse against deletion), 232 (retaining R's α), 242 (retaining R's and accepting Medaglia's restoration of ), 912 (retaining R's ), and 1094 (accepting Brunck's supplement ). They are also guided by the concern for making the text square with fifth-century Attic usage: see, e.g., the restoration of (for ) to 758-59 and the preferences for (over the transmitted v) in 173 and 478 and for (over the transmitted ) in 554.An unusual textual feature in this comedy—and an editorial challenge—is the pidgin-Greek spoken by the Scythian archer who guards the captured Inlaw in 1001-1225. Austin and Olson print his part without accents because, as they explain in the commentary's note on these verses (which also supplies a helpful list of the idiosyncrasies in his speech), "he must consistently have got [the accents] wrong" (308). Other editorial decisions (e.g., Austin's for R's unmetrical in 1088) bear out the editors' perception of the Scythian as a consistently bad speaker of Greek (325, n. on 1087-89).The comedy's lyric passages arguably present its thorniest set of editorial challenges. Most of the songs are marked by complexities in their rhythmic patterns; there is relatively little strophic responsion, and the two showcased parodies of tragic lyric (Agathon's song in 101-29 and the Inlaw's reworking of Andromeda's lament in 1015-55) feature elaborate polymetry that additionally complicates the tasks of interpreting and editing. Austin and Olson generally concur with the colometry and analysis of Thesmophoriazusae's songs that L. P... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Aristophanes' Thesmophoriazousai and the Challenges of Comic Translation:The Case of William Arrowsmith's Euripides AgonistesElizabeth ScharffenbergerThesmophoriazousai is conspicuously absent from the well-known and widely used series of Aristophanes translations that, under the editorial supervision of William Arrowsmith, was published originally by the University of Michigan Press and then taken up by New American Library. This is not to say, however, that a translation of the comedy was never composed for (...) this series. Arrowsmith took the task upon himself and began his translation of Thesmophoriazousai some time before 1960 when the Aristophanes series was at the height of its production; in later years, he revised his text at least once, and the evidence points to 1968-1973 as the principal period during which the translation was reworked. The cover page on the manuscript that he sent me in 1991 indicates that an introduction and notes (standard in this series) were to accompany the translation, but the package I received contained only the translated text, and I have no idea whether the notes and commentary were ever composed or finished. The text of the translation has a handful of typographical errors and minor inconsistencies in the directions on costuming and staging, which seem to mark the project as an arrested work in progress.The unpublished creation of a renowned classicist who was also a prolific and respected translator, Arrowsmith's Thesmophoriazousai — titled on the manuscript's cover page, Euripides Agonistes (Thesmophoriazousae)— provides an exciting venue for exploring the challenges involved in translating Aristophanes for contemporary English-speaking audiences. My purposes in this paper are thus twofold. I want to examine selected aspects of Arrowsmith's version of this comedy and also advance some general ideas about the challenges involved in translating the plays of Aristophanes and, for that matter, any comic work. My endeavor on both scores will be both preliminary and cursory; there is no way to do justice to every feature of this translation in a few pages or to [End Page 429] produce a complete theory of comic translation. But I hope that I can suggest a reasonably systematized foundation for analyzing the choices Arrowsmith made in his rendering of Thesmophoriazousai and, at the same time, present a set of criteria that might have broader use to people who rely on all kinds of comic translations.The "Frames" of Comic TranslationThere are very few works that treat, from either practical or theoretical perspectives, the translation of comic works and comic devices such as parodies and puns. These works include an essay on translating Ari-stophanes published in 1960 by Arrowsmith, titled "The Lively Conventions of Translation," as well as Douglass Parker's 1992-93 Arion essay in Arrowsmith's memory and André Lefevere's Translating Literature: Practice and Theory in a Comparative Literature Context. Their consensus is that translating comedy, especially Aristophanic comedy, poses formidable and unique challenges.1The most obvious challenge is the topicality of jokes and comic scenarios. According to Arrowsmith, "It is initially the hard facts of culture that most torment the translator of Greek comedy.... Tragedy... keeps a decent distance from common life, but comedy dumps into the translator's lap an intolerable profusion of things—odd bits of clothing, alien cuisine... unfamiliar currency, etc." (1960, 123). Thesmophoriazousai bears out this observation; it overflows with difficult "things" and "hard facts" to translate, beginning with the many props and elements of costume that come into play in the prologue with the appearance of Agathon and the dressing of the Kinsman, and including such crucial items as Mica's wineskin "baby." The problem of "translating" these objects is compounded by the challenges involved in making intelligible the comedy's preoccupation with Euripides and its many-layered engagement with Euripidean tragedy, which give rise to the parodies of Telephus, Palamedes, Helen, and Andromeda. These parodies go hand in hand with countless theatrical in-jokes and self-conscious references to local Athenian theatrical practices. Then there are the play's festal performance context (the Dionysia) and festal setting (the Thesmophoria), its allusions to local forensic and judicial procedures, and its caricatures of figures such as Agathon and Cleisthenes who, like Euripides, would have... (shrink)

Medical ethics is a realm where four important subjects of philosophy, medicine, theology and law are covered. Physicians and philosophers cooperation in this area will have great efficiency in the respective ethical rules formation. In addition to respect the autonomy of the patient, physician's obligation is to ensure that the medical intervention has benefit for the patient and the harm is minimal. There is an obvious conflict between duty of confidentiality and duty of mandatory reporting. Professional confidentiality is one of (...) the basic components in building a constant physician-patient relationship which nowadays, beside the novelty, it is the subject of discussion. Legal obligation of confidentiality is not absolute. In physician-patient relationship, keeping patient's secrets and maintaining confidentiality is a legal and ethical duty, and disclosure of such secrets is mainly through specific statutes. Thus, there are a number of situations where breach of confidentiality is permitted in different legal systems. One of the situations where breaching confidentiality is permitted is the medical mandatory reporting to the relevant authority which is in accordance with many countries' legal systems. Some situations are considered in many countries legal systems' such as notification of births and deaths, infectious diseases, child abuse, sport and relevant events, medical errors, drug side effects and dangerous pregnancies. In this paper, we will examine and discuss medical mandatory reporting and its ethical and legal aspects in the judicial and legal system of Iran and few other countries. Finally we will suggest making Medical Mandatory Reporting Law in Iran. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:194 HISTORY OF PHILOSOPHY and properly, in a consideration of Bradley, although it is a little like citing Bradley in his own behalf. In all, Mr. Saxena's book is carefully researched and judicious, selecting Bradley's chief metaphysical themes for explication and defence. As one slight criticism: Bradley's doctrine of truth is treated as coherence, which it indeed was on the level of reality; but he dealt with truth quite (...) differently in immediate experience and on the level of appearance (elaborating those levels in his Essays on Truth and Reality), and hia metaphysics would appear richer if those theories of truth were discussed and applied to their appropriate realms. It~J~ Ross Scripps College Filosofia e SLoria nel Pensiero Crociano. By Adriano Bausola. (Milano: SocietA editrici Vitae Pensiero, 1965. Pp. 280. Paper. L. 4~500.) Etica e Politica nel Pensiero dl Benedetto Croce. (Milano: SocietA editrici Vitae Pensiero, 1966. Pp. 265. Paper. L 3,500.) Theee two volumes examine respectively Croce's doctrines of the theoretic and of the practical spheres of experience and thus treat of many of the main tenets of Croce's entire philosophy. For within these spheres, Adriano Bausola critically discusses important views which occur in the areas of logic, gnoseology, theory of history, as well as in ethics, economic and political doctrine. The scope of Bausola's treatment is in accord with Croce's own approach to philosophy, since strictly speaking, neither the theoretic nor the practical sphere can be correctly understood in abstraction from the other. Moreover, in his treatment of Croce's view, Bausola frequently discusses the criticisms of other contemporary Italian Crocean critics,as for example, of Gentile, Guido Calogero and Ugo Spirito, and this method of exposition has the advantages of making Croce's own position clear and of giving us some idea of very recent Italian philosophy. According to Bausola, the essential character of Croce's philosophy is shown in his rejection of every view which admits of transcendent experience or of abstract ideas. Thus, Filosofia e Storia critically traces this rejection as it occurs throughout the theoretic sphere of experience and attempts to make explicit the "positive" Crocean doctrine which accompanies his denial of the transcendent and of the abstract. Here Bausola concludes that despite Croce's claim to the contrary, there is more than one "logical" reason for Croce's refutation of the transcendent. Among these reasons are Croce's view of the identity of subject and object, his refutation of every mediate cognitive process, of every inference, and of every experience which issupposed to be neither theoretic nor practical. Chapter i ol Filosofia c Storia discusses the foundation of Croce's philosophy which Bausola maintains should be described as "spiritualism" (spiritualismo) rather than as "idealism" (idealismo), since for Croce, reality is fundamentally "spirit" and not "pure thought." Chapters 11 and 111 treat specifically of epistemic problems, such as, the nature of philosophic or pure concepts and the judgments to which they give rise, the nature of scientific or pseudoconcepts and the relations between philosophy and science. Chapters IV and v treat of Croce's view of the nature of "the real" and of the relations between the categories---their autonomy and their unity. Here Bausola attempts to show that Croce's transcendental deduction of the four forms of experience (aesthetic, logical, economic and ethical) has failed and that his demonstration shows merely that the distinction between these forms are empirical. Chapter IV then discusses Croce's view of philosophy as history. The next three chapters present a critical analysis of Croce's doctrine of error which forms one of his most interesting contributions to philosophy. Here Bausola's task is not to consist of an explication of the central Crocean view on error, but rather of an examination of its "concrete" development and its validity. At the outset of his discussion, Bausola asks: Does error ever result from non-practical as well as from practical acts? BOOK REVIEWS 195 Does error invariably result from conscious volition? And Bausola tries to show contrary to Croce% view that there are instances of error which do not involve conscious volition, but that Croce% denial of such instances follows... (shrink)

This review shows that there is now a solid scientific evidence base for the “expert” evaluation of disputed confession cases in judicial proceedings. Real-life cases have driven the science by stimulating research into “coercive” police questioning techniques, psychological vulnerabilities to false confession, and the development and validation of psychometric tests of interrogative suggestibility and compliance. Mandatory electronic recording of police interviews has helped with identifying the situational and personal “risk factors” involved in false confessions and how these interact. It (...) is the combination of a detailed evaluation and analysis of real-life cases, experimental work, and community (and prison/police station) studies that have greatly advanced the science over the past 40 years. In this review, the story of the development of the science during this “golden era” is told through the three established error pathways to false confessions and wrongful convictions: misclassification, coercion, and contamination. A case study of a major miscarriage of justice is used to highlight the key issues at each stage of the error pathways and it shows the continued resistance of the judiciary to admit mistakes and learn from them. Science is a powerful platform from which to educate the police and the judiciary. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and (...) informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

This guide accompanies the following article(s): ‘Full Disclosure of the “Raw Data” of Research on Humans: Citizens’ Rights, Product Manufacturer’s Obligations and the Quality of the Scientific Database.’Philosophy Compass 6/2 (2011): 90–99. doi: 10.1111/j.1747‐9991.2010.00376.x Author’s Introduction Securing consent (and informed consent) from patients and research study participants is a key concern in patient care and research on humans. Yet, the legal doctrines of consent and informed consent differ in their applications. In patient care, the judicial doctrines of consent and (...) informed consent are disclosure doctrines based on the obligation of physicians to inform their patients of the following types of information: the nature of the procedure the physician is recommending in the patent’s care (P), the alternatives to the physician‐recommendation (A), and the risks of procedure and its alternatives (R). In addition, the physician must provide truthful answers to the patient’s questions (Q) to the best of the physician’s abilities. In research on humans, the onus of disclosure by study sponsors and principal investigators is much greater than in patient care precisely because the purpose of research is not patient care. The purpose of research is the identification and development of new generalizable knowledge. Thus, participation in a research study or trial may not benefit the study volunteer at all. In addition, the participant may carry a heavy risk burden in relationship to any testing of a newly designed drug or device as part of their experiences in the research study. Presently, despite the risks borne by the research study participant, the raw data collected from volunteers in research trials are treated by courts as if they were the private property of the study sponsor rather than generally owed to the public as would be expected by an effort like research participation aimed at contributing to the development of generalizable knowledge. This paper reviews the obligations that study sponsors owe to their study participants based on the very definition of research as a systematic activity whose purpose is to develop generalizable knowledge to help all humans. Author Recommends Court cases Canterbury v. Spence, United States Court of Appeals, District of Columbia Circuit 464 F.2d 772 (1972). (Federal appellate decision heard in the District of Columbia, USA) Reibl v. Hughes, 2 S.C.R. 880 (1980). (Supreme Court of Canada) Rogers v. Whitaker, 175 C.L. R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Canterbury v. Spence is the landmark Federal informed consent case in the United States heard in the District of Columbia. In this case, Judge Spottswood Robinson articulated the reasonable person standard of informed consent. This standard was subsequently adopted by the Supreme Court of Canada (Reibl v. Hughes, 2 S.C.R. 880 (1980)) and the High Court of Australia (Rogers v. Whitaker, 175 C.L. R. 479 (1992)). The House of Lords rejected the reasonable person standard in England in Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985). Book Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. This book is a detailed guide for the review of scientific and ethical aspects of research on humans contained in the research study protocols and research informed consent forms which need to be submitted by study sponsors and principal investigators to institutional review boards (IRBs) for IRB review before a research study can receive approval to be conducted within a human study population in those institutions over which the IRB has authority. It also presents basic definitions in the area of research on humans and basic approaches to help conduct a deep review of the underlying scientific and ethical issues that are present within a research study protocol and its accompanying research informed consent form. Report National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). This U.S. National Commission in the Belmont Report argued for the necessity of a reasonable volunteer standard in research on humans in the United States. Arguing that the professional standard and the reasonable person standard of consent and informed consent were insufficient to base a disclosure standard in research on humans, this National Commission developed the reasonable volunteer standard where a study participant is to be approached in research informed consent with that information that a reasonable volunteer would want to know. Online Materials Belmont Report: Syllabus Topics for Lecture and Discussion Week I: Introduction and Overview Readings: Rogers v. Whitaker, 175 C.L.R. 479 (1992). (High Court of Australia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week II: The Different Standards of Consent and Informed Consent Readings: Canterbury v. Spence, 464 F.2d 772 (1972). (Federal appellate opinion heard in the District of Columbia) Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital and Others. 1 A.C. 871 (1985) (House of Lords) Week III: Definition of Research Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 2 and 3) Week IV: How to Review a Research Study Protocol and Research Informed Consent Form Reading: Mazur, Dennis J. The Science and Ethics of Research on Humans. Baltimore, MD: Johns Hopkins University Press, 2007. (Especially Chapters 4–6, 10, and 12–14) Week V: Obligations in Research of Humans Versus Patient Care Reading: National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Belmont Report: Ethical Guidelines for the Protection of Human Subjects of Research. Washington, DC: DHEW Publications, 1978 (78‐0012). Focus Questions • How do the judicial doctrines of consent in England and Australia compare to the judicial doctrines of informed consent in the United States and Canada? • How does a professional standard of disclosure differ from a reasonable person standard of disclosure? • What is the definition of research? • How is a research study (study proposal and research informed consent form) reviewed from scientific and ethical bases for considerations of approval by an IRB? • How do the obligations of a study sponsor, a principal investigator, and a research team conducting a research trial on human study participants differ from the obligations of a physician caring for a patient? • Should all raw data of research derived from humans be made available to the public for use in developing generalizable knowledge to help others, or should raw data be considered the private property of the study sponsors (for example, prescription drug manufacturers), who fund the research trials? Seminar/project Idea Draw a timeline of the development of the basic concepts of consent and informed consent in patient care and in patient research. On this timeline, first place the dates of the key court cases in England, the United States, Canada, and Australia on consent and informed consent. Then place the date of the development of the Belmont Report. Why do differences exist between these four countries in terms of the legal requirements of informedness of a patient (in medical care) and a study participant (in medical research)? What roles if any do the concepts of self‐determination and self‐decision have in consent and informed consent in patient care and in informed consent in research on humans among the four countries of interest? What are the realities of research on human participants that require a new standard of informed consent, the reasonable volunteer standard, to be developed beyond the two standards in patient care, the professional standard, and the reasonable person standard? Counterpoint Arguments The following are counterpoint arguments that need to be appreciated to more fully understand the concepts that impact the thesis that ‘raw data’ should be open to the public to allow the opportunity of checking of the results of its associated scientific paper and for further analysis. De‐Identified (Anonymized) Raw Data A current approach to identifying (anonymizinig) raw data is based on the Health Insurance Portability and Accountability Act (HIPAA) of 1996 (P.L.104‐191). HIPAA was enacted by the U.S. Congress in 1996 to keep a person’s medical information private. In a research study, a person’s private medical information can become research data. HIPAA’s Privacy Rule allows a covered entity to de‐identify data by removing all 18 elements that could be used to identify the individual or the individual’s relatives, employers, or household members; these elements are enumerated in the Privacy Rule. The covered entity must also have no actual knowledge that the remaining information could be used alone or in combination with other information to identify the individual who is the subject of the information. Under this method, the identifiers that must be removed are the following: 1 Names. 2 All geographic subdivisions smaller than a state, including street address, city, county, precinct, ZIP Code, and their equivalent geographical codes, except for the initial three digits of a ZIP Code if, according to the current publicly available data from the Bureau of the Census: 2a. The geographic unit formed by combining all ZIP Codes with the same three initial digits contains more than 20,000 people. 2b. The initial three digits of a ZIP Code for all such geographic units containing 20,000 or fewer people are changed to 000. 3 All elements of dates (except year) for dates directly related to an individual, including birth date, admission date, discharge date, and date of death, and all ages over 89 and all elements of dates (including year) indicative of such age, except that such ages and elements may be aggregated into a single category of age 90 or older. 4 Telephone numbers. 5 Facsimile numbers. 6 Electronic mail addresses. 7 Social security numbers. 8 Medical record numbers. 9 Health plan beneficiary numbers. 10 Account numbers. 11 Certificate/license numbers. 12 Vehicle identifiers and serial numbers, including license plate numbers. 13 Device identifiers and serial numbers. 14 Web universal resource locators (URLs). 15 Internet protocol (IP) address numbers. 16 Biometric identifiers, including fingerprints and voiceprints. 17 Full‐face photographic images and any comparable images. 18 Any other unique identifying number, characteristic, or code, unless otherwise permitted by the Privacy Rule for re‐identification. Even though ‘raw data’ can be de‐identified (anonymized) so that there is no way to trace back the data to the study participant from which it was drawn, there are still questions whether the ‘de‐identified raw data’ can be given to other researchers or made public without the original study participant’s approval. It may be the case that this approval could be done at the start of any research study where the individual considering study participation would be counseled on what the process of de‐identification consists of and would be asked whether the participant would allow use of the data by other researchers or made available to the public in a de‐identified state. However, there may be questions of the study participants as to whether the data are truly de‐identified and untraceable back to the study participant since the participant would not be able to see the process actually being carried out in detail in all relevant circumstances. Using Raw Data in Context Simply being in possession of raw data is never enough to build on that data from a research perspective. Researchers need to understand the context of the scientific research study in which the data were collected. This research context includes (but is not limited to): (i) the scientific hypothesis of the research study, (ii) the inclusion and exclusion criteria selected by the research designers of the study to determine which study participants were included and which were excluded from the study, (iii) the methods used to collect the data and possibilities of errors in the data collection processes, and (iv) answers to questions regarding whether any data were excluded from the study data and why these data were excluded. Ownership Rights Over Data There are ownership rights over data. Ownership rights include court decision making related to the question which parties are to be considered as the owners of the data. Possible owners here include (but are not limited to) (i) the study sponsor whose only role was to fund that study, (ii) the principal investigator(s) who developed the scientific hypothesis, and (iii) individual study participants through special contracts made by individual participants who negotiate such contracts with study sponsors and principal investigators to share in the ownership of data. Examples of such data are participant sources of unique gene lines or unique cell lines to be used in future research. Objections to Data Sharing Finally, individual researchers may simply object to sharing data. A researcher’s arguments here may be simply stating that he or she has a right to fully analyze the data since the collection of the data was the researchers’ idea in the first place. These researchers may argue that they have the right to mine the data as fully as they can before deciding to make the data open to the public for others to analyze. Works Cited 1 Kaiser, J. ‘Making Clinical Data Widely Available.’Science 322.5899 (10 Oct. 2008): 217–8. 2 de Lusignan, S., J.F. Metsemakers, P. Houwink, V. Gunnarsdottir, and J. van der Lei. ‘Routinely Collected General Practice Data: Goldmines for Research? A Report of the European Federation for Medical Informatics Primary Care Informatics Working Group (EFMI PCIWG) from MIE2006, Maastricht, The Netherlands.’Informatics in Primary Care 14.3 (2006): 203–9. 3 Sim, I. ‘Human Studies Database Project’, CTSA Data Repositories Symposium (17 Oct. 2008). 23 Nov. 2010. 4 Sim, I., C.G. Chute, H. Lehmann, R. Nagarajan, M. Nahm, and R.H. Scheuermann. ‘Keeping Raw Data in Context.’Science 323.5915 (6 Feb. 2009): 713. 5 U.S. Department of Health and Human Services, National Institutes of Health, HIPAA Privacy Rule, Information for Researchers. 13 Nov. 2010. 6 Wilczynski, N.L., R.B. Haynes, and Hedges Team. ‘EMBASE Search Strategies for Identifying Methodologically Sound Diagnostic Studies for Use by Clinicians and Researchers.’BMC Medicine 29.3 (March 2005): 7. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Artificial Virtues and the Equally Sensible Non-Knaves: A Response to Gauthier Annette C. Baier Gauthier's splendidly dialectical paper1 first sets out Hume's official Treatise account ofhow each personhas a self-interested motive to curb her natural but socially troublesome self-interest, by agreeing to the adoption ofthe artifices ofprivate property rights, transfer by consent, and promise (provided others are also agreeing to adopt them), andhow the sympathy-dependent moral sentiment approves of (...) such a redirection of"the interested passion." Enlightened self-interest gives us the natural obligation tojustice; the fact that it is morally approved turns it into a moral obligation. Self-hatred for any breaches of the moral obligation may come in to bolster the self-interested motivation, and this will be helped along by the extra artifices employed by educators and politicians. So far so good. But now enters the sensible knave, who queries the initial assumption that each will in fact gain more by strict conformity to the rules of the Humean social artifices than by occasional carefully calculated and undetected breaches of them. If the knave is right, then the Treatise story ofhow reasonable self-interested people can get themselves to conscientiously respect property rights (including rights ofbarter), and to keep promises, is in trouble. Only by an erroneous calculation of their interest could they end with the motivation which Hume attributes to them, and finds to be morally approvable.Gauthier argues that there are indications even in the Treatise that Hume is aware ofthe flawed nature ofhis official account, since he attributes "sophistry" to some attempted justifications of honest behaviour, and attributes "feigned acts" of impossible willing to some conscientious promise-keepers. Gauthier finds Hume to have, in the Treatise, a second, less official story ofwhat it takes to be motivated to be just—that it takes error, and letting oneself be taken in by feignings and sophistry. In the Enquiry Concerning the Principles ofMorals this submerged account surfaces in the sensible knave's challenge and Hume's admission that his own answer will not be satisfactory to the knave. The charms of official Humeanjustice, Gauthierconcludes, are spurious, sincethe "anatomy" of the account of the rational motivation to be just is known to be unsound. "The sensible knave's message is thathuman society... lacks any moral foundation." Volume XVIII Number 2 429 ANNETTE C. BAIER This is a sombre tale. One of its unwelcome implications is that Hume himself, really believing that the knave is right, but unwilling tobe seen tohave the bad grace to "dehver a theory, however true which... leads to a practice dangerous and pernicious," is simply trying to "sink" the knave's truth in oblivion by creating a smoke-screen of insincere rhetoric about the greater delights of consciousness of integrity over the knave's satisfaction in his ill-gotten gains. So there really are two sombre tales—one, attributed to Hume, about justice, and one about Hume's dupUcity (or is it mere cynical frivolity?): Gauthier crafts both stories beautifully, directing our attention to bits ofHume's text injust the right order for his dramatic purposes. But is he giving us truth or fiction? I completely agree with Gauthier's version of Hume's official Treatise story, that the moral obligation to justice supervenes on the "natural obligation" for which Hume believes the natural motivation to be collectively redirected self- (or family) interest.2 1 agree that there are one or two passages, especially in the Treatise section, "Of the obUgation of promises," that seem to jar with this account, and which much somehow be explained. I agree that Hume believes that his reply to the knave is, from the knave's point ofview, unsatisfactory. Now for some disagreements. First, about Hume's reply to the knave.3From the viewpointofthevirtuous dues-payingmemberof"the party of humankind," Hume's is a perfectly satisfactory reply. It will be plain truth, for a person with the other Humean virtues (including equity, which is listed as a natural virtue),4 that justice will bring as great or greater good than would judicious injustice. Even if it would be "simply preposterous" to believe that the social order is dangerously threatened by any... (shrink)

This paper seeks to determine the significance, if any, of epidemiological evidence to prove the specific causation element of liability in negligence or other relevant torts—in particular, what importance can be attached to a relative risk > 2, where that figure represents a sound causal inference at the general level. The paper discusses increased risk approaches to epidemiological evidence and concludes that they are a last resort. The paper also criticizes the proposal that the probability of causation can be estimated (...) with reference to the RR, such that RR > 2 is necessary and sufficient for causation. It is argued, following arguments by Sander Greenland and others, that RR > 2 is not necessary for proof of specific causation, except under restrictive biological assumptions that are not known to be satisfied for any important disease, and therefore must never be required. However, the paper argues that in some circumstances RR > 2 can be sufficient to prove causation at law. This position is defended against the widely held judicial and academic view that epidemiological evidence must be accompanied by something else, particular to the case at hand, if it is to have probative force for specific causation. It is argued that far from being epistemically irrelevant, to achieve correct and just outcomes it is in fact mandatory to take epidemiological evidence into account in deciding specific causation. Failing to consider such evidence when it is available leads to error and injustice. The conclusion is that in certain circumstances epidemiological evidence of RR > 2 is not necessary to prove specific causation but that it is sufficient. This “sufficiency” is confined to circumstances where there is no other evidence, as a way of getting clear on what the epidemiological evidence says. Once we have worked out what it says, this must be weighed against the other relevant evidence, if there is any. (shrink)

The prelims comprise: Introduction How it Works Sources of Error and Uncertainty DNA Typing Results as Legal Evidence The Legal Reception of DNA Typing DNA Typing and the Judicial Assessment of Scientific Evidence Social Impact: Criminal Investigation and Adjudication Conclusion Notes.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Klaudios Ptolemaios: Handbuch der Geographie, Griechisch-DeutschAlexander JonesAlfred Stückelberger and Gerd Grasshoff, eds. Klaudios Ptolemaios: Handbuch der Geographie, Griechisch-Deutsch. Vol. 1: Einleitung und Buch 1-4. Vol. 2. Buch 5-8 und Indices. With contributions from Florian Mittenhuber, Renate Burri, Klaus Geus, Gerhard Winkler, Susanne Ziegler, Judith Hindermann, Lutz Koch, and Kurt Keller. Basel: Schwabe Verlag, 2006. 1018 pp. 24 color and black-and-white ills. 29 maps. 1 CD-RO M. Cloth, €170.Ptolemy's (...) Geography is at the same time the only survivor of the ancient Greek literature devoted to the topic of drawing maps of the world and is the most extensive ancient list that we possess of names and locations of communities and physical features in the known parts of Europe, Africa, and Asia. It may seem astonishing that a document of exceptional importance for ancient history, geography, and the history of science should have had to wait until now for a complete critical edition. In fact the last complete edition, by C. F. A. Nobbe (1843–45), presents an indiscriminate text with no apparatus beyond a skimpy eighteen-page "Index Criticus" at the end. Two other editions, by F. W. Wilberg and C. H. F. Grashof (1838–45) and by C. Müller and C. T. Fischer (1883–1901), though furnished with apparatus, were vitiated by defective knowledge of the main lines of the textual tradition and besides were never completed. The twentieth century saw major progress in the sorting out of the Geography's manuscripts, with important contributions by (among others) Joseph Fischer, Otto Cuntz, Aubrey Diller, and above all by Paul Schnabel, whose monograph on the subject was meant as a mere harbinger of an edition that he did not live to produce. Meanwhile, scholars in need of a reliable text have had to make do with a patchwork of intentionally partial editions limited to sections of Ptolemy's geographical catalogue covering specific regions.The biggest obstacle in the way of restoring the Geography arises from one of Ptolemy's profoundest insights, that a graphical object such as a world map can be reproduced more accurately if its contents are translated into a collection of numerical coordinates representing each significant point of the drawing, in effect, a digitization. About two thirds of the Geography is thus dedicated to a list of some eight-thousand place names with the longitudes and latitudes of the corresponding localities expressed in degrees and fractions of a degree, ordered [End Page 128] so that one can reconstruct the map by plotting from point to point on a suitable grid of parallels and meridians. Ptolemy thus got rid of the analogue distortions inherent in the process of copying a picture, but he proposed no measures to protect the copying of the text and numerals of his list from errors giving rise to "noise" progressively obscuring the picture. Unfortunately, Greek alphabetic numerals, notations for common fractions, and exotic place names—many of them attested in no other document—were all liable to frequent misreading in ancient and medieval manuscripts. In such material, copying errors are difficult to detect and generally impossible to undo. The modern scholar, working with an abundance of manuscript copies (none older than the late thirteenth century), is incessantly confronted by variant readings of which at least one must be wrong but for which no rational basis for discriminating exists. To complicate matters further, many of the manuscripts contain maps, and the origin of these maps and their relation to the textual history are controversial questions for which the usual resources of textual criticism are inadequate. It is not surprising if editors' appetites have been sated with modest helpings of the Geography.Now at last we have a complete and reliable critical edition of Ptolemy's book, an accomplishment made possible in the first instance by a division of labor among a competent and well-organized team, and secondly by judicious choices about what the edition should and should not attempt to do. The team, the "Ptolemaios-Forschungsstelle," affiliated with the Institute for Classical Philology of the University of Berne, comprises more than a dozen scholars led by a philologist, Alfred... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:156 BOOK REVIEWS and appreciation of Mary's place in our faith lives needs to be con· tinually nourished. This book contributes much to fulfill this need. In the book the author gives a good historical background to each of the issues raised: Mary's Motherhood, Virginity, Immaculate Concep· tion and Assumption. His chapter on Private Devotions and Appari· tions is a good analysis of the facts and gives some good (...) insights into a particularly delicate aspect of our Marian heritage. Throughout the book the author displays a familiarity with the latest scriptural developments regarding Mary and these are blended well with theological reflection which help to clarify and deepen our grasp of the mystery who is Mary. It will serve as an excellent intro· duction for those who are interested in pursuing further certain Marian themes. It sets up clearly the " state of the question. " And for anyone wishing to have a clear and intelligible understanding of the Catholic position on Mary, this is a book to read. This book is well structured; one's interest is captured and maintained throughout. The reviewer's hope is that this is but the first of several works on Mary by Fr. Frederick Jelly. GEORGE KIRWIN, O.M.I. Boston, Massachusetts The Risk of Interpretation: On Being Faithful to the Christian Tradi· tion in a Non-Christian Age. By CLAUDE GEFFRE. Translated by David Smith. New York/Mahwah: Paulist Press, 1987. Pp. vi + 298. $12.95 {paperback). Several years ago, M.-D. Chenu described himself, in his preface to Claude Ge:ffre's A New Age in Theology {New York: Paulist, 1972), as " one who, not without some boldness and certain risks, has reacted against decay in theology and envisaged opportune breakthroughs in historical and speculative method. " In the present work, Geffre shows himself likewise willing to take the risk involved in the work of theology. Since theology is a hermeneutical task "from beginning to end," it involves "the risk of distortion and error," but unless theology is willing to take that risk by presenting a creative interpretation of Christianity, it runs the no less serious risk of "simply handing on a dead past" {pp. 1-2). The present work comprises a collection of fifteen articles and lectures, three of which were previously unpublished, eight of which have been reworked, and all of which have been organized into a consistent BOOK REVIEWS 157 presentation. The hook is divided into three parts, concerned respectively with theological methodology, certain "fundamental realities of Christian revelation, " and Christian praxis in face of the new histori· cal, social, and cultural conditions of our non-Christian age. The author begins with a lucid presentation of the shift that has occurred in the last twenty years from a theology which understood itself as " constituted knowledge " to a theology of "pluralistic interpretation " (i.e., from " dogmatic theology to hermeneutical theology ") (p. 11). Under the influence of such thinkers as Dilthey and Gadamer, theologians have become aware of the critical importance of the present situation of the interpreter or speaker in establishing the meaning of a text or articulating a speculative truth. This new awareness of " a certain kind of dogmatic theology that is offered to us as the only authentic way of interpreting the christian message" (p. 14). In Chapter II, Geffre takes up the structuralist critique of hermeneutics. He responds to their contention that the meaning of a text can he found only in " the structures of the text and the mechanics of its functioning" by making judicious use of Paul Ricoeur's notion of the " world of the text, " and thus separates himself both from the position of the structuralists and from the sort of hermeneutics which pretends to find the meaning of a text by discovering the intention of its author. He thus shows how theology may employ much that is valuable in the method 0£ the structuralists without falling victim to their criticisms. Geffre contrasts the hermeneutical model for doing theology with what he calls the " dogmatic model, " characterizing them as " two paradigms of theological study... separated by an epistemological revolution " (Chapter III). While the dogmatic model, which was characteristic of theological work from the Council... (shrink)

Philosophers and others have criticized the courts for ascribing a right of self-determination to severe incompetents. I defend ascription of a right of self-determination to these incompetents against both conceptual and normative attacks. I argue that a court need make no conceptual error when it ascribes a right of self-determination to a being who never had capacity for rational choice, and I argue that proper judicial deference to reflective conventional morality supports ascription of a right of self-determination to (...) severe incompetents. Keywords: Self-determination, incompetence, person CiteULike Connotea Del.icio.us What's this? (shrink)

Essentially a history of religion in the twentieth century, this erudite work puts more emphasis on religion than on change and more faith in Christianity than in other traditions. Alive to the importance of the ecumenical movement and the Second Vatican Council, Edwards argues that no other religious groups in our time have the sophistication of the major Christian denominations in responding to the challenges of a scientifically based culture and an industrialized economy. He relates the major movements in modern (...) theology to a context informed by Marx and Freud, biology and technology, Eastern spirituality and Western revivalism. But he evades the challenge to revise our concept of God or demonstrate the meaningfulness of the traditional concept, with the plea that today's theologians have to be more humble than their predecessors in making dogmatic claims. From his vantage-point in England he judiciously assesses currents of thought in Europe and the United States, while showing more sensitivity to the views of British humanists than to the crises of faith and morals arising in contemporary political and social life. Despite his familiarity with the "new" morality and literary celebrations of the "death" of God, he ends with a relatively unperturbed affirmation of the biblical message concerning Jesus' death and resurrection. The result is a highly competent survey of how things stand at present for Western churchmen and theologians. The book has a few typographical and other errors, notably the placing of the last line first on page 260 and the footnote references to Sir Humphrey rather than Hamilton Gibb and to Robert rather than Richard Robinson.--C. P. S. (shrink)

Drawing upon recent contributions to an already developed literature of diverse speculation on Bayle and his milieu, the author attempts to assess the historical significance of Bayle's writings by means of a chronological treatment of the French Calvinist's changing understanding of the relation of faith and reason. One may find here the main lines of Bayle criticism judiciously set forth, together with a careful investigation of some biographical material and the exposition of Bayle's principal ideas on the role and limits (...) of reason as a speculative and moral guide, the function of grace, the grounds of faith and morality, the problem of error, and, the centrality of Providence. The author argues convincingly for the thesis that Bayle remained consistently loyal to the traditions of the Reform. On the other hand, the closely related attempt to illuminate the logic of Bayle's ambiguous statements of the dualism of reason, as an instrument for yielding clarity and evidence, and as the agent of man's struggle with the unknowable, lacks critical vigor. Nonetheless, this work is a very readable summary of the intellectual contribution of a crucial figure in the evolution of French philosophical and religious thought. A valuable bibliography is included.--J. M. S. (shrink)

The Bristol Inquiry is arguably one of the most important cases of judicial medical investigation held in the United Kingdom, which continues to raise important insights into the social construction of medical and scientific risks. As a way of marking the inquiry’s tenth anniversary year, this article returns to an important conversation held between noted pediatric cardiothoracic and cardiovascular specialists, on days 49 and 50 of the inquiry’s proceedings. Their conversance principally describes a pathway of scientific advancement across four (...) decades. Risks, and the avoidance of medical error, represent important subtopics of the ensuing historical narrative, within which the experts describe opportunities for error as diminishing in-line with paradigmatic advancement. The telling of this story of risk mitigation involves the expurgation of considerable sensitivities to scientific uncertainty. In analyzing this example of expert scientific witness testimony, the article primarily considers how representations of uncertainty are formulated in language. The article concludes that, in this instance, the social construction of risk and uncertainty were heteroglossically premised upon language catalysts, cognitive metaphors, and logic-based mathematical rubrics. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:TOWARD A THOMISTIC PERSPECTIVE ON ABORTION AND THE LAW IN CONTE:MPORARY AMERICA M. CATHLEEN KAVENY Yale University New Haven, Oonnecticut Introduction W;HEN THE SUPREME COURT handed down its abortion decision Webster v. Reproductive Health Services 1 in the summer of 1989, it was widely prel 109 S. Ct. 3040 (1989). All further citations to Webster will be given parenthetically in the text. To summarize the most significant aspects. of (...) the decision: A. Chief Justice Rehnquist authored an opinion of the Oourt (of the highest precedential value) which was joined by Justices White, Kennedy, Scalia, and O'Connor. The majority found the lower courts to be in error in striking down as unconstitutional the preamble to a Missouri statute which asserted that "the life -0f each human being begins at conception." The opinion of the Court also found that Missouri could constitutionally prohibit the use of public employees and facilities in the performance of abortions not necessary to save the mother's life. B. The Court also upheld the Missouri statute's provision requiring a. doctor to perform viability tests before aborting a fetus the doctor believes is of 20 or more weeks gestational age. In the plurality opinion (of less precedential value than an opinion -0f the Court, since it is not joined by a majority of the justices), Chief Justice Rehnquist, Justice White, and Justice Kennedy argued that since most fetuses are not viable at twenty weeks, the provision would impose substantial restrictions unrelated to the health of the mother upon what are, in fact, simply sec-0nd trimester abortions. Because they believed such restrictions to be in tension with Roe's trimester system, the plurality decided to abandon that system, along with its stipulation that the state's interest in unborn life became compelling only at viability. The plurality contended, however, that Webster presented no occasion for reconsidering Roe's holding, which deemed unconstitutional a statute prohibiting all abortions except those necessary to save the life of the mother. In a concurring opinion, Justice Scalia went further, arguing that the Court should explicitly overrule Roe v. Wade. On the other hand, Justice O'Connor, 848 344 M. CAT'HLEEN KAVENY dieted that this would exaicerbate a dangerously bitter social·struggle. In its 1973 decision Roe v. Wade (410 U.S. 113), the court had e1abo:raJted.a woman's right to abortion, and, in rthe sixteen years that fo11owed it, it ga,V'e that right unwavering support. Webster 'seemed to mark a retl.'eat from that support. The new scope it offered for state regulation of rubortion promised rto ignite gra,ss-roots forvor and a stiate..:by-state battle between those seeking rto maintain the abortion rights est1ab1isihed by Roe and its sequalia and those st:dving to limit the s1oope of these rights in 1 significant ways. Much of the criticism of Webster has fooused narrowly upon how weM the,decision has aiocorided with various views on the morality of abortion. Yet important 1as this issue is, thorough ethicaJ ana:lysis of Webster must address severa1l additional fac~ tors. The ethiicatl aidequacy of positive law, induding judicial interpretations of faw siuch as Webster, must he ev1alruated in terms of whetheir it aidvanices or impedes the common good. The common good requires not only that we consider the moml substance of legal requirements but tha:t we ailso attend to the manner in which law is made, promulgated, ml!d interpreted. Such an analysis is,sorely needed; it should. specify the severa1l factors involved in determining whether any given legal also concurring in the plurality's judgment, maintained that this provision of the statute could be upheld without any reconsideration of Roe, since it co· hered with that decision's recognition of the compelling state interest in viable fetal life. C. Justice Blackmun authored an opinion dissenting from the majority on the issues discussed above, and he was joined by Justices Brennan and Mar· shall. The thrust of his opposition is directed against the plurality's treatment of the viability testing,provisions. Blackmun first suggested that i.f understood according to the canons of proper statutory interpretation, these provisions unconstitutionally restrict the attending physician... (shrink)

Statistical model specification and validation raise crucial foundational problems whose pertinent resolution holds the key to learning from data by securing the reliability of frequentist inference. The paper questions the judiciousness of several current practices, including the theory-driven approach, and the Akaike-type model selection procedures, arguing that they often lead to unreliable inferences. This is primarily due to the fact that goodness-of-fit/prediction measures and other substantive and pragmatic criteria are of questionable value when the estimated model is statistically misspecified. Foisting (...) one's favorite model on the data often yields estimated models which are both statistically and substantively misspecified, but one has no way to delineate between the two sources of error and apportion blame. The paper argues that the error statistical approach can address this Duhemian ambiguity by distinguishing between statistical and substantive premises and viewing empirical modeling in a piecemeal way with a view to delineate the various issues more effectively. It is also argued that Hendry's general to specific procedures does a much better job in model selection than the theory-driven and the Akaike-type procedures primary because of its error statistical underpinnings. (shrink)

Ronald Dworkin’s argument from theoretical disagreement remains a pressing challenge for legal positivists. In this paper, I show how positivists can answer Dworkin’s argument without having to attribute confusion or disingenuity to legal officials. I propose that the argument rests on two errors. The first is to assume that positivism requires legal officials to converge on precise grounds of law when convergence on more general grounds will do. The second is to construe judicial speech too literally. If we pay (...) attention to the pragmatics of judicial speech, we see that judges do not disagree over what the grounds of law are; they at most disagree over how courts should proceed when agreed-upon, though imprecise, grounds of law underdetermine what the content of the law directs in the case at hand. (shrink)

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific (...) person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

The Council on Ethical and Judicial Affairs of the American Medical Association examines physicians’ professional ethical responsibility in the event that the security of patients’ electronic records is breached.

Formal models of appearance and reality have proved fruitful for investigating structural properties of perceptual knowledge. This paper applies the same approach to epistemic justification. Our central goal is to give a simple account of The Preface, in which justified belief fails to agglomerate. Following recent work by a number of authors, we understand knowledge in terms of normality. An agent knows p iff p is true throughout all relevant normal worlds. To model The Preface, we appeal to the normality (...) of error. Sometimes, it is more normal for reality and appearance to diverge than to match. We show that this simple idea has dramatic consequences for the theory of knowledge and justification. Among other things, we argue that a proper treatment of The Preface requires a departure from the internalist idea that epistemic justification supervenes on the appearances and the widespread idea that one knows most when free from error. (shrink)

David Miller is the foremost exponent of the purist critical rationalist doctrine and here presents his mature views, discussing the role that logic and argument play in the growth of knowledge, criticizing the common understanding of argument as an instrument of justification, persuasion or discovery and instead advocating the critical rationalist view that only criticism matters. Miller patiently and thoroughly undoes the damage done by those writers who attack critical rationalism by invoking the sterile mythology of induction and justification that (...) it seeks to sweep away. In addition his new material on the debate on verisimilitude is essential reading for all working in this field. (shrink)

This chapter focuses on what’s novel in the perspective that the prediction error minimization (PEM) framework affords on the cognitive-scientific project of explaining intelligence by appeal to internal representations. It shows how truth-conditional and resemblance-based approaches to representation in generative models may be integrated. The PEM framework in cognitive science is an approach to cognition and perception centered on a simple idea: organisms represent the world by constantly predicting their own internal states. PEM theories often stress the hierarchical structure (...) of the generative models they posit. The novel explanatory power of the PEM account derives largely from the way in which pairs of generative and recognition models interact. “Predictive coding” refers to an encoding strategy in which predicted portions of an input signal are subtracted from the actual signal received, so that only the difference between the two is passed as output to the next stage of information processing. (shrink)

Much current debate in the metaphysics of time is between A-theorists and B-theorists. Central to this debate is the assumption that time exists and that the task of metaphysics is to catalogue time’s features. Relatively little consideration has been given to an error theory about time. Since there is very little extant work on temporal error theory the goal of this paper is simply to lay the groundwork to allow future discussion of the relative merits of such a (...) view. The paper thus develops a conceptual framework from within which to evaluate claims about the actual existence, or not, of temporality as that notion appears in folk discourses about time, and from there to examine claims about the counterfactual existence, or not, of temporality so conceived. We subsequently apply this framework to three extant positions drawn from physics and metaphysics that deny the existence of time. We show that only one of these positions is a folk temporal error theory; that is, a view that denies the existence of time as that notion is operative in our everyday thought and talk. (shrink)

In chapter 5 of Knowledge and its Limits, T. Williamson formulates an argument against the principle (KK) of epistemic transparency, or luminosity of knowledge, namely “that if one knows something, then one knows that one knows it”. Williamson’s argument proceeds by reductio: from the description of a situation of approximate knowledge, he shows that a contradiction can be derived on the basis of principle (KK) and additional epistemic principles that he claims are better grounded. One of them is a reflective (...) form of the margin for error principle defended by Williamson in his account of knowledge. We argue that Williamson’s reductio rests on the inappropriate identification of distinct forms of knowledge. More specifically, an important distinction between perceptual knowledge and non-perceptual knowledge is wanting in his statement and analysis of the puzzle. We present an alternative account of this puzzle, based on a modular conception of knowledge: the (KK) principle and the margin for error principle can coexist, provided their domain of application is referred to the right sort of knowledge. (shrink)

In this paper, I show how realist moral naturalists can provide an intra-theoretic explanation of the epistemic possibility of wholesale moral error. This is a requirement on metaethical theories that has been recently defended by Akhlaghi (2021). After clarifying Akhlaghi’s argument and responding to Evers’s (2021) recent rebuttal, I argue that even under the assumption that moral facts are grounded in an appropriate subset of natural facts (N-facts), there is still a non-zero probability of wholesale moral error. This (...) is demonstrated by considering three types of epistemically possible scenarios: specifically, it could either be that N-facts do not actually exist, or that N-facts exist in a way that entails wholesale moral error, or that N-facts exist in a non-error theoretic way, but their existence is temporally restricted. (shrink)