This chapter contains sections titled: What Does the Indeterminacy Thesis Mean? Is the Law Radically Indeterminate? Is a Modest Version of the Indeterminacy Thesis Defensible? Conclusion References.

This article explores the status of a UN mandate for military intervention, especially in the aftermath of the non-mandated interventions in Kosovo and Iraq. It examines the realist and positivist approaches to this issue, and proposes a third approach, called the ?human rights model? in which public legitimacy plays a key role. It shows that not only political assessments but also legal ones differ on this question according the premises they are based on. The article further analyses how (...) normative and military power interacts in today's global public debate, and concludes that legitimacy for an intervention is established on a case-by-case basis. The existence of a UN mandate no longer gives automatic legitimacy. (shrink)

The main argument of this article is based on a functional disanalogy, between what I will call ‘international humanity-based law’, constituted by human rights and criminal law, and the domestic rule of law. If we adopt a functionalist approach, the attention has to be focused both on Rule of Law’s pragmatical objective – a reasonable stability – and on its means – formalism and legality, for dealing with indeterminacy. Do international key players share such values, embedded in the Rule (...) of Law’s political project? Does humanity-based international law fulfil the requirements of the Rule of Law? The conclusion of this work is that institutions and mechanism to which usually legal scholars refer when stating that a legal order is a Rule of Law, are almost absent in humanity-based international law. That implies that radical indeterminacy is, in humanity issues, a too strong obstacle for achieving the ideal of the Rule of Law. (shrink)

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal (...) theory debates. -/- Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law. -/- The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop. (shrink)

"The essays in this book make it elegantly clear that there is a vigorous and rigorous Latin American philosophy... and that others dismiss it at their peril." —Mario Sáenz The ten essays in this lively anthology move beyond a purely historical consideration of Latin American philosophy to cover recent developments in political and social philosophy as well as innovations in the reception of key philosophical figures from the European Continental tradition. Topics such as indigenous philosophy, multiculturalism, the philosophy of race, (...) democracy, postmodernity, the role of women, and the position of Latin America and Latin Americans in a global age are explored by notable philosophers from the region. An introduction by Eduardo Mendieta examines recent trends and points to the social, political, economic, and cultural conditions that have inspired the discipline. Latin American Philosophy brings English-speaking readers up to date with recent scholarship and points to promising new directions. (shrink)

Pluralism is among the most vital intellectual movements of the modern era. Liberal pluralism helped reinforce and promote greater separation of political and religious spheres. Socialist pluralism promoted the political role of trade unions and the rise of corporatism. Empirical pluralism helped legitimate the role of interest groups in democratic government. Today pluralism inspires thinking about key issues such as multiculturalism and network governance. However, despite pluralism's importance, there are no histories of twentieth-century pluralist thinking. Modern Pluralism fills this gap. (...) It explores liberal, socialist, and empirical ideas about diversity in Britain and the United States. It shows how pluralists challenged homogenous nations and sovereign states, often promoting sub-national groups as potential sites of self-government. In it, intellectual historians, political theorists, and social scientists collectively explore the historical background to present institutions and debates. The book serves to enrich our understanding of the history of pluralism and its continuing relevance. (shrink)

Fools rush in. ALEXANDER POPE, AN ESSAY ON CRITICISM (London, 1711). The full quotation is, “For Fools rush in where Angels fear to tread.” Id. at 66. She who hesitates is lost. Adaptation of the line, “The woman that deliberates is lost.” JOSEPH ADDISON, CATO: A TRAGEDY, AND SELECTED ESSAYS 30 (2004). See also OLIVER WENDALL HOLMES, SR., THE AUTOCRAT AT THE BREAKFAST TABLE 29 (1858) (“The woman who ‘calculates’ is lost.”). American legal realism numbers among the most important (...) theoretical contributions of legal academia to date. Given the movement’s influence, as well as the common centrality of certain key figures, it is surprising that privacy scholarship in the United States has paid next to no attention to the movement. This inattention is unfortunate for several reasons, including that privacy law furnishes rich examples of the indeterminacy thesis — a key concept of American legal realism — and because the interdisciplinary efforts of privacy scholars to explore extra-legal influences on privacy law arguably further the plot of legal realism itself. (shrink)

This book proves to be an excellent guide through the labyrinth of law. Its crucial point is legal order viewed from the perspective of a situated "We". Jurisprudence appears as an implicit sort of thinking, embedded in moral, political, epistemological, and linguistic contexts. Numerous example cases lead us from everyday issues to the abysses of violence. Anyone who practices or studies law will highly profit from reading this book. One sees how law functions by being more than mere law. (...) Bernhard Waldenfels, Ruhr-University Bochum, Germany Legal Thought and Philosophy clarifies background questions in legal research projects, such as the relationship between law and justice, law and politics, law and knowledge, facts and norms, normativity and validity, constituent and constitutional power, and rule and context. It provides advanced students in law and philosophy with an account of legal thinking that combines analytical and phenomenological insights. From a conception of justice as principled political self-restraint, the book explains why there are moral reasons to separate law from morality conceptually and in what sense a legal order is positive--that is, set by authority and bound up with history. The book explores the conditions under which law may become an object of knowledge and theorising, before finally discussing how these features come together in law as rule-following by citizens, officials, judges, and legislators alike. Addressing advanced students in law and philosophy, this key book: bridges separate traditions in legal philosophy (in particular analytical philosophy and phenomenology), develops a view of law as an institution of authority from a conception of justice in the socio-political relationship between we and the others, presents a systematic account of normativity and validity, explains in what sense law is doing things with rules. (shrink)

More than two hundred years after his birth, and 150 years after the publication of his most famous essay On Liberty, John Stuart Mill remains one of the towering intellectual figures of the Western tradition. This book combines an up-to-date assessment of the philosophical legacy of Millâes arguments, his complex version of liberalism and his account of the relationship between character and ethical and political commitment. Bringing together key international and interdisciplinary scholars, including Martha Nussbaum and Peter Singer, this book (...) combines the latest insights of Mill scholarship with a long-term appraisal of the ways in which Millâes work has been received and interpreted from the time of his death in 1873 to today. The book offers compelling insights into Millâes posthumous fate and reputation; his youthful political and intellectual activism; his views on the formation of character; the development of his thought on logic; his differences from his father and Bentham; his astonishingly prescient, environmentally sensitive and âe~greenâe thought; his relation to virtue ethics; his conception of higher pleasures and its relation to his understanding of justice; his feminist thought and its place in contemporary debates and feminist discourses; his defence of free speech and its fundamental significance for his liberalism; and his continued contemporary relevance on a number of major issues. This book will be of interest to students and scholars of Politics, Political Theory, Philosophy, History, English, Psychology, and also Cultural Studies, Empire studies, nationalism and ethnicity studies. (shrink)

There are many introductions to the animal ethics literature. There aren't many introductions to the practice of doing animal ethics. Bob Fischer's Animal Ethics: A Contemporary Introduction fills that gap, offering an accessible model of how animal ethics can be done today. The book takes up classic issues, such as the ethics of eating meat and experimenting on animals, but tackles them in an empirically informed and nuanced way. It also covers a range of relatively neglected issues in animal ethics, (...) such as the possibility of insect sentience and the ethics of dealing with pests. Finally, the book doesn't assess every current practice using standard ethical theories, but tries to evaluate some of them using the moral frameworks endorsed by those involved. So, for instance, there is a chapter on the way that animal care and use committees try to justify some of the educational uses of animals, and the chapter on zoos considers the way that international zoological societies justify compromising animal welfare. The book wraps up with a discussion of the future of animal ethics. Each chapter opens with a helpful initial overview of the chapter and ends with a list of suggested readings to help students go further on their own. Key Features Covers animal ethics from an empirically informed perspective, bringing philosophy into conversation with key issues in animal science, conservation biology, economics, ethology, and legal studies, among other fields Provides ample coverage of the most salient current topics, including, for example: Debates about which animals are sentient The suffering of wild animals Research ethics The boundaries of activism Avoids suggesting that animal ethics is simply the practice of applying the right general theory to a problem, instead allowing readers to first work out the specific costs and benefits of making ethical decisions Impresses upon the reader the need for her to work out for herself the best way forward with difficult ethical issues, suggesting that progress can indeed be made Includes summaries and recommended readings at the end of each chapter. (shrink)

Quantum cognition is an emerging field that uses mathematical principles of quantum theory to help formalize and understand cognitive systems and processes. The topic on the potential of using quantum theory to build models of cognition (Volume 5, issue 4) introduces and synthesizes its new development through an introduction and six core articles. The current issue presents 14 commentaries on the core articles. Five key issues surface, some of which are interestingly controversial and debatable as expected for a (...) new emerging field. (shrink)

From the earliest moments in human history, the relationship between God, the universe, and humanity has been a subject of discussion, not only among followers of divine religions but also among representatives of positive sciences. Various theories have been put forth, and numerous evaluations have been made regarding the details of this relationship. The discussions around this topic continue to be relevant today From the perspective of divine religions, one of the most notable and fundamental aspects of the Quran-centered revelation (...) system in Islam is the clear distinction between the Creator and the created. According to this understanding, all entities outside of Allah are categorized as created beings, and they owe their existence and continuity to Allah, who is incomparable to anything else. Additionally, the Quran frequently emphasizes that the universe was created with precise measures, balance, and order. Indeed, these criteria form the starting point of the teleological argument, which extensively utilizes them to demonstrate the existence of Allah, especially His unity. All of this suggests that nothing in the universe is the result of random chance; rather, it implies that the universe embodies a sense of regularity or lawfulness. In our view, “Sunnatullah” is a term used in the Quran to express this regularity or lawfulness. The issue of the unchangeability of the “Sunnatullah” has brought forth discussions on determinism first through causality and then, within the context of determinism, debates on deism. Indeed, interpreting the concept of “Sunnatullah” through a rigid deterministic understanding may open the door to deism, while attributing events in the universe to chance rather than standard laws brings about a process leading to atheism by excluding the Creator. Therefore, it is crucial to approach the phenomenon of “Sunnatullah” in the context of the relationship between God, the universe, and humans in a way that eliminates these risks. For this reason, we have chosen to focus on the relationship between “Sunnatullah” and legality within the context of “immutability.” In addressing this topic, we have attempted to consider not only the data of revelation but also the factual domain. In doing so, our fundamental approach has been not to view the Quran as a purely scientific book and not to operate under the assumption that “everything happening in nature is detailed in the Quran.” However, we have endeavored not to overlook the fact that there is harmony between nature/physics, created by the same entity, and the Quran. In our opinion, this harmony has the potential to create an objective foundation for reaching belief in Allah based on the movement from nature/physics. While composing our text, we emphasized concept analysis and highlighted historical and empirical realities. Document analysis was chosen as the method for this qualitative research. We explored the framework of the concept of “Sunnatullah” and attempted to elucidate its relationship with causality. In our research, the term “Sunnatullah” has been used in a sense encompassing all laws pertaining to society and nature within the context of the relationship between God, humans, and the universe. Additionally, it has been argued that the introduction of different laws into the nature and operation of anything in various areas and conditions of life does not imply that the law is susceptible to change. In our view, the unchangeability of the law refers to the detail that the same law will come into effect under the same conditions. Conditions may change, but the law that comes into effect according to those specific/appropriate conditions remains unchanged. Indeed, in line with His infinite knowledge and power, Allah has not overlooked any detail and has established a law for every possible situation in the universe with its causes and effects. The relationship between “Sunnatullah” and causality occurs in this context. (shrink)

This paper elucidates Hannah Arendt’s conditions for collective responsibility in light of her political writings. In turn, it pushes back on Iris Marion Young’s reservations about Arendtian collective responsibility and demonstrates its compatibility with Youngian political responsibility. At issue is how to understand (a) Arendtian collective responsibility as political and therefore forward-looking, (b) Arendt’s view of responsibility in the political realm as different from her view in the moral-legal realm, and (c) what Arendt’s vision of collective responsibility requires (...) of everyone. If Young’s political responsibility relates to Arendt’s collective responsibility more than she thinks, then this may call for a significant rethinking of Young’s reliance on Arendt. My inquiry into their debate leads to a standpoint from which one can contribute to contemporary discussions about responsibility in a world with growing and elaborate public spheres. (shrink)

Chapter one argues for the important contribution that a natural law based framework can make towards an analysis and assessment of key controversies surrounding the practices of suicide, assisted suicide, and voluntary euthanasia. The second chapter considers a number of historical contributions to the debate. The third chapter takes up the modern context of ideas that have increasingly come to the fore in shaping the 'push' for reform. Particular areas focused upon include the value of human life, the value (...) of personal autonomy, and the rejection of double effect reasoning. Chapter four engages in the task of pointing out structural weakness in utilitarianism and deontology. The thesis argues that major systemic weaknesses in both approaches can be overcome by a teleology of basic human goods. John Finnis' work becomes the underpinning of subsequent applied natural law analysis. Chapter five proceeds to argue for the defence of the intrinsic good of human life from direct attack. The thesis holds out for the proposition "that it is always a serious moral wrong to intentionally kill a human person, whether self or another, regardless of a further appeal to consequences or motive." In support of this, it defends the validity of double effect reasoning as an indispensable part of applied moral decision making. Chapter six critically assesses the arguments of anti-perfectionists that it is not the business of the state to enforce deep or substantive conceptions of the 'good life.' The chapter moves on to argue that the natural law conception of the person in society, centred on the common good, provides a solid framework for assessing both the justification for, as well as the limits on, the role of the state to use its power to legally impose certain moral standards. Chapter seven addresses the concrete relationship between natural law and legal policy by exploring the issue of assisted suicide in the constitutional context of the United States.















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Background: As genetics technology proceeds, practices of genetic testing have become more heterogeneous: many different types of tests are finding their way to the public in different settings and for a variety of purposes. This diversification is relevant to the discourse on ethical, legal and societal issues (ELSI) surrounding genetic testing, which must evolve to encompass these differences. One important development is the rise of personal genome testing on the basis of genetic profiling: the testing of multiple genetic variants (...) simultaneously for the prediction of common multifactorial diseases. Currently, an increasing number of companies are offering personal genome tests directly to consumers and are spurring ELSI-discussions, which stand in need of clarification. This paper presents a systematic approach to the ELSI-evaluation of personal genome testing for multifactorial diseases along the lines of its test characteristics.DiscussionThis paper addresses four test characteristics of personal genome testing: its being a non-targeted type of testing, its high analytical validity, low clinical validity and problematic clinical utility. These characteristics raise their own specific ELSI, for example: non-targeted genetic profiling poses serious problems for information provision and informed consent. Questions about the quantity and quality of the necessary information, as well as about moral responsibilities with regard to the provision of information are therefore becoming central themes within ELSI-discussions of personal genome testing. Further, the current low level of clinical validity of genetic profiles raises questions concerning societal risks and regulatory requirements, whereas simultaneously it causes traditional ELSI-issues of clinical genetics, such as psychological and health risks, discrimination, and stigmatization, to lose part of their relevance. Also, classic notions of clinical utility are challenged by the newer notion of 'personal utility.'SummaryConsideration of test characteristics is essential to any valuable discourse on the ELSI of personal genome testing for multifactorial diseases. Four key characteristics of the test - targeted/non-targeted testing, analytical validity, clinical validity and clinical utility - together determine the applicability and the relevance of ELSI to specific tests. The paper identifies and discusses four areas of interest for the ELSI-debate on personal genome testing: informational problems, risks, regulatory issues, and the notion of personal utility. (shrink)

_Environmental Ethics_ provides an accessible, lively, and up-to-date introduction to the central issues and controversies in environmental ethics. Requiring no previous knowledge of philosophy or ethical theory, the book will be of interest to students, environmental scientists, environmental policy makers, and anyone curious to know what philosophers are saying today about the urgent environmental challenges we face. _ The book is divided into two parts. _Part One deals with theoretical issues in environmental philosophy, examining a variety of ethical and environmental (...) theories that provide diverse and thought-provoking perspectives on critical ecological issues. Part Two turns to applied environmental ethics, addressing current debates on topics such as climate change, biodiversity loss, wilderness preservation, responsibilities to future generations, population growth, overconsumption, food ethics, and ecological activism. _ Features include: _ Clear explanations of key concepts and theories that lie at the heart of current debates in environmental ethics. A mix of theory of practice that permits readers to apply diverse theoretical perspectives to key environmental debates. A wealth of pedagogical aids, including chapter summaries, discussion questions, suggested readings, and a glossary of important terms. (shrink)

_What does the Bible actually say about many of today's most contentious moral issues?__ “For drawing attention to the relevant scriptures and for guidance in recognizing what are and aren’t valid interpretations of them, Collins’ pertinent brief is beyond praiseworthy.”—_Booklist _(starred review)__ “Collins pours a lifetime of scholarship into this study of what the Bible says about controversial ethical topics. It’s highly readable, and it’s honest.”—Jane McBride, ___Christian Century__ Many people today claim that their positions on various issues are (...) grounded in biblical values, and they use scriptural passages to support their claims. But the Bible was written over the course of several hundred years and contains contradictory positions on many issues. The Bible seldom provides simple answers; it more often shows the complexity of moral problems. Can we really speak of “biblical values”? In this eye-opening book, one of the world’s leading biblical scholars argues that when we read the Bible with care, we are often surprised by what we find. Examining what the Bible actually says on a number of key themes, John Collins covers a vast array of topics, including the right to life, gender, the role of women, the environment, slavery and liberation, violence and zeal, and social justice. With clarity and authority, he invites us to dramatically reimagine the basis for biblical ethics in the world today. (shrink)

School choice has lately risen to the top of the list of potential solutions to America's educational problems, particularly for the poor and the most disadvantaged members of society. Indeed, in the last few years several states have held referendums on the use of vouchers in private and parochial schools, and more recently, the Supreme Court reviewed the constitutionality of a scholarship program that uses vouchers issued to parents. While there has been much debate over the empirical and (...) methodological aspects of school choice policies, discussions related to the effects such policies may have on the nation's moral economy and civil society have been few and far between. School Choice, a collection of essays by leading philosophers, historians, legal scholars, and theologians, redresses this situation by addressing the moral and normative side of school choice.The twelve essays, commissioned for a conference on school choice that took place at Boston College in 2001, are organized into four sections that consider the relationship of school choice to equality, moral pluralism, institutional ecology, and constitutionality. Each section consists of three essays followed by a critical response. The contributors are Patrick McKinley Brennan, Charles L. Glenn, Amy Gutmann, David Hollenbach, S. J., Meira Levinson, Sanford Levinson, Stephen Macedo, John T. McGreevy, Martha Minow, Richard J. Mouw, Joseph O'Keefe, S. J., Michael J. Perry, Nancy L. Rosenblum, Rosemary C. Salomone, Joseph P. Viteritti, Paul J. Weithman, and Alan Wolfe. (shrink)

Transcranial direct current stimulation (tDCS) is a brain stimulation technique known for its relative safety and minimal invasiveness. tDCS has demonstrated efficacy as a potential treatment for certain neurological disorders, such as Parkinson’s disease, and has been shown to enhance a range of cognitive abilities under certain contexts. As a result, this technique has captured the interest of both the research community and the public at large. However, efforts to gather information about the effects of tDCS on the brain are (...) still in their infancy, leading to concerns about informed consent as it pertains to the possible risks associated with tDCS treatment. The ability to purchase tDCS equipment in the form of commercial, direct-to-consumer devices, generates even more cause for ethical concern, given the unknowns surrounding this technology and its potential broader societal impact. Previous research has touched on the many ethical issues raised by the emergence of this technology, including under what circumstances its use is justifiable and appropriate. In this paper, we survey recent normative and empirical works pertaining to the ethics of tDCS with the goal of summarizing the current state of ethical debate surrounding its use in the contexts of both therapy and cognitive enhancement, with a particular emphasis on the latter. Our analysis of the collected research finds that issues pertaining to user safety are paramount within existing scholarship; that tDCS use in children is an emerging area of concern entailing special considerations; and that regulatory bodies and legal agencies have struggled to implement appropriate, impactful regulation pertaining to tDCS and related technologies in order to balance public welfare against individual autonomy. This analysis will facilitate future efforts to develop bioethical approaches to tDCS by highlighting the ethical dimensions of tDCS prioritized in existing literature and identifying areas where further ethical consideration is needed. (shrink)

As the media wrestle with ethical and legal problems in coverage of AIDS stories, such as privacy, terminology, and disclosure, a question is raised about the educational role the media will assume in the face of this health threat. Despite health department hopes for candor in dealing with the threat, blunt?language ads and commercials have been rejected by most New York City media and legislation may restrict the extent to which media deal with the question. Though the media alone (...) cannot bear the burden of AIDS education, they must provide point?man services. (shrink)

Judicial process is an integral part of legal systems. The process rests primarily on established principles of constitutional governance and responsibility. In the last ten years, the dynamism within judicial institutions and the judicial process has gained considerable attention. The dynamism is often viewed in light of the diversity of claims being addressed, the openness of courts to foreign material, and the use of non-legal studies and findings in court proceedings. How one views the judicial process in the (...) traditional sense, and in the light of the new experiences is an important question today. Also, what new theories explain this public sphere of activity? -/- In this regard, Dr. Pathak’s book "Judicial Process" is a noteworthy contribution. The book explores the complex nature of the judicial process, along with its wider constitutional, political, and social relevance. The book builds on an understanding that the judicial process, the courts, and the judges are central to constitutional governance. With that backdrop, it engages with four aspects of the judicial process, including (1) the nature of the judicial process, (2) the engagements and interactions within the judiciary, (3) the engagements and interactions between the courts and other institutions, and (4) the protection of rights and redressal of violations function performed by courts. -/- The book includes a detailed discussion on key concepts, practices, tests, and principles. The following chapters and discussions are particularly interesting. Chapter one involves a jurisprudential take on the subject while referring to the works of Blackstone, Holmes, and Cardozo. Particularly relevant in chapter one are Indian cases that have cited Cardozo while determining important judicial matters. Further, the chapter includes foreign case law which has been cited by the Indian courts to discuss the nature of the judicial process. Chapter three on Judicial Review discusses the scope of judicial review in India and its centralizing force in constitutional governance. The author carefully explores the expansion in a judicial capacity for review. The chapter highlights the dynamism attached to the practice of judicial review, moving from the review of constitutional amendments, to that of laws, administrative actions, and policy. Further, the chapter includes a discussion on the basic structure of the Indian Constitution. Chapter four on Law of Precedent includes a discussion on stare decisis, which the author refers to as a principle conferring legitimacy and stability to the judicial system. Recent scholarship on the nature of obiter dicta of higher courts and persuasive quality of foreign case law in domestic cases has been cited. Chapter five covers the Independence of the Judiciary debates in India. It discusses the issue of post-retirement appointments of judges and recusal from judicial matters. Chapter eight Judicial Activism traces the development of the concept from its early days to the present times. The chapter adopts the five core meanings offered by Keenan Kmiec to substantiate the old and the new avatars of judicial activism. The chapter discusses the role of social action litigation in India and its hand in defining the judiciary as a protector of rights and constitutional values. -/- The book provides sufficient guidance to study the nature of the judicial process. It also makes one curious about the changing nature of the judicial process and the new waves of constitutional ethics and governance. The following are some of the themes not attended to in the book. First, the judgments of the courts. The written judgments constitute an integral part of the judicial process. The judgments constitute public law reaching out to beneficiaries including litigants, people at large, as well as foreign institutions and courts. That being said, a discussion on judgements and the written or unwritten standards governing the same needs attention. Also included in this point is the role of dissenting judgments. How should one view or study dissent in judgments of constitutional significance? A normative framework to study the same is much needed. Second, the tools and indicators to measure judicial impact. The judicial impact can include (a) the impact of judicial decisions on the law, policy, and society (b) the impact of law/legislation on the judicial process, and (c) the impact of technological and scientific advancements on the judicial process. Tools like judicial impact assessment have been widely argued to be important to the working of the courts. Further, parameters to study compliance, policy integration, and the impact of judicial decisions on other state institutions have gained attention. (shrink)

Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area. Thus Tamanaha explores the problematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal ideology, the problem of indeterminacy in rule following and application, and the structure of judicial decision making. These (...) issues are tackled in a clear and concise fashion while articulating a social theory of law that draws equally from legal theory and socio-legal theory. `This book provides a useful, and at times provocative, review of recent developments in legal theory. Because it covers considerable territory, it should be a good addition to one's professional library... there is much to commend in this book. It is well written, ably argued, and generally knowledgeable. It treats controversial topics forthrightly...an excellent review of the legal theory literature.... It should provide a worthwhile venture into familiar debates rendered from a perspective that owes allegiance to no side.' Law and Politics Book Review `by any criterion and excellent book...Tamanaha has produced a work which should feature as a core text in jurisprudence courses' Oxford Journal of Legal Studies `This is the most significant piece of work for anybody in Jurisprudence, Socio-Legal Studies, or Legal Theory' Neil MacCormick `a rich insight into almost every question legal theory has vexed itself over the past twenty-five years' Stanley Fish. (shrink)

It has now been more than 50 years since H. L. A Hart and Lord Patrick Devlin first squared off in perhaps the most celebrated jurisprudential debate of the twentieth‐century (1959–1967). The central issue in that dispute—whether the state may criminalize immoral behavior as such—continues to be debated today, but in a vastly changed legal landscape. In this article I take a fresh look at the Hart‐Devlin debate in the light of five decades of social and (...) legal changes. (shrink)

Racial preferences are among the most contentious issues in our society, touching on fundamental questions of fairness and the proper role of racial categories in government action. Now two contemporary philosophers, in a lively debate, lay out the arguments on each side. Carl Cohen, a key figure in the University of Michigan Supreme Court cases, argues that racial preferences are morally wrong--forbidden by the 14th Amendment to the Constitution, and explicitly banned by the Civil Rights Act of 1964. He (...) also contends that such preferences harm society in general, damage the universities that use them, and undermine the minorities they were intended to serve. James P. Sterba counters that, far from being banned by the Constitution and the civil rights acts, affirmative action is actually mandated by law in the pursuit of a society that is racially and sexually just. The same Congress that adopted the 14th Amendment, he notes, passed race-specific laws that extended aid to blacks. Indeed, there are various kinds of affirmative action--compensation for past discrimination, remedial measures aimed at current discrimination, the guarantee of diversity--and Sterba reviews the Supreme Court cases that build a constitutional foundation for each. Affirmative action, he argues, favors qualified minority candidates, not unqualified ones. Both authors offer concluding comment on the University of Michigan cases decided in 2003. Half a century after Brown v. Board of Education, issues pertaining to racial discrimination continue to grip American society. Ideal for courses in political, social, ethical, and legal philosophy, this penetrating debate explores the philosophical and legal arguments on all sides of affirmative action, but also reveals the passions that drive the issue to the forefront of public life. (shrink)

Here, I have tried to show that a second look at the young Schmitt's legal thinking does bring clarity to the 'confused'� and 'polemical' debate about his theoretical and political legacy. Pace Schmitt, it helps demonstrate that Schmitt's embrace of German fascism was anticipated by key elements of his thinking about the dilemma of legal indeterminacy -- well before Hitler's rise to power.

Can war be justified? Pacifists answer that it cannot; they oppose war and advocate for nonviolent alternatives to war. But defenders of just war theory argue that in some circumstances, when the effectiveness of nonviolence is limited, wars can be justified. -/- In this book, two philosophers debate this question, drawing on contemporary scholarship and new developments in thinking about pacifism and just war theory. Andrew Fiala defends the pacifist position, while Jennifer Kling defends just war traditions. Fiala (...) argues that pacifism follows from the awful reality of war and the nonviolent goal of building a more just and peaceful world. Kling argues that war is sometimes justified when it is a last-ditch, necessary effort to defend people and their communities from utter destruction and death. Pulling from global traditions and histories, their debate will captivate anyone who has wondered or worried about the morality of political violence and military force. Topics discussed include ethical questions of self-defense and other-defense, the great analogy between individuals and states, evolving technologies and methods of warfighting, moral injury and post-traumatic stress disorder, broader political and communal issues, and the problem of regional security in a globalizing world. The authors consider cultural and religious issues as well as the fundamental question of moral obligation in a world saturated in military conflict. The book was written in the aftermath of the war on terrorism and includes reflection on lessons learned from the past decades of war, as well as hopes for the future in light of emerging threats in Europe and elsewhere. -/- The book is organized in a user-friendly fashion. Each author presents a self-contained argument, which is followed by a series of responses, replies, and counter-arguments. Throughout, the authors model civil discourse by emphasizing points of agreement and remaining areas of disagreement. The book includes reader-friendly summaries, a glossary of key concepts, and suggestions for further study. All of this will help students and scholars follow the authors’ dialogue so they may develop their own answer to the question of whether war can be justified. (shrink)

This book considers the seminal debate in jurisprudence between Ronald Dworkin and Stanley Fish. It looks at the exchange between Dworkin and Fish, initiated in the 1980s, and analyses the role the exchange has played in the development of contemporary theories of interpretation, legal reasoning, and the nature of law. The book encompasses 4 key themes of the debate between these authors: legal theory and its critical role, interpretation and critical constraints, pragmatism and interpretive communities, and (...) some general implications of the debate for issues like the nature of legal theory and the possibility of objectivity. The collection brings together prominent legal theorists and one of the protagonists of the debate: Professor Stanley Fish, who concludes the collection with an interview in which he discusses the main topics discussed in the collection. (shrink)

Anti-foundationalism is a central topic in recent legal scholarship. The critical legal studies movement (CLS) has mounted a strong challenge to the traditional belief that legal materials (constitutions, statutes, and precedents) determine legal outcomes and constrain judicial decision making. This scholarship has overlooked, however, the degree to which the debate between traditional legal determinacy and anti-foundational indeterminacy is yet another manifestation of a continuous debate in Western thought – one that (...) has its roots in pre-Socratic rhetoric and philosophy.This paper traces the indeterminacy thesis back to the contest of ideas between Protagoras and Plato. I examine two well-known and elated Protagorean notions: first, that two arguments (logoi) are always set in opposition to one another with regard to every matter and, second, that the rhetorician can always ‘make the weaker argument the stronger.’ I contend that taking these Protagorean notions seriously – perhaps even more seriously than self-avowed anti-foundationalists customarily do – leads paradoxically to a modified endorsement of foundationalism that is nevertheless wholly consistent with the Protagorean project. Calling upon texts by Aristotle, Seneca and René Girard, I focus upon how fictionality in representations of Platonically conceived Truth reveals a binarization in thought that is simultaneously untenable and unavoidable. (shrink)

The variety and complexity of the eight papers in this Symposium issue are evidence that immigration is a tough nut to crack both as a matter of policy and application. There is no way that any short summary can do justice to these papers, which take a variety of moral, economic, historical, and empirical approaches to some of the recurrent issues in the field, so it is best in this short issue to try to situate the problem in (...) a general classical liberal context, to show where the pressure points are most likely to appear.The initial way to approach this problem is to start with the simple proposition that the world today is divided into national territories where the practical norm is well-nigh universal: That each sovereign state has exclusive control over its own territory, which, among other things, allows it to decide which individuals are members of that state. These citizens have privileges that may be exercised, no questions asked, on such key matters as entering labor markets, owning property, voting, and otherwise participating in political affairs. All these activities may be denied or granted, at will, to any and all outsiders by the territorial sovereign.No one doubts the need for having some form of territorial control. The need to have some monopoly of force could not be achieved if the entire world, with its infinite diversity of locations and populations, were under a single sovereign. Indeed, in many cases, the divisions within a given country may be so pronounced that separation rather than aggregation is the norm. Thus, at the end of the British Raj, India split into India and Pakistan, and later Pakistan split into Pakistan and Bangladesh. Less dramatically, Czechoslovakia split into two countries, the Czech Republic and Slovakia, while the former Yugoslavia split into five nations, starting from the northwest: Slovenia, Croatia, Bosnia and Herzegovina, Serbia, and Macedonia. Clearly, these ethic differences, be they large or small, are a major obstacle to the expansion of the size of the state. And today, the territorial instinct reasserts itself as the member states of the European Union impose more restrictions on immigration.Yet at the same time, the normative foundations of this system seem elusive. There is the following deep skepticism about the importance of these borders, expressed in these essays by Jeremy Waldron and Ilya Somin, that these national boundary lines should have such a pronounced role in political economy. Michael Blake pursues this theme further by asking the extent to which classical liberals can justify exclusion through the use of violence—or is it force? The inquiry into the dominant role of territoriality can then be expanded, as by Peter Margulies, to examine all sorts of negative externalities that could be created both by easy and strict rules of admission.Taken as a whole, there is no doubt that these national barriers are a serious obstacle to the free trade in goods and services between two individuals, one inside the boundary and one outside. The general view is that these barriers block the gains from trade, which is what drives economic progress, so that ideally all tariffs and quantitative restrictions should give way to a system of free trade in which petty objections by domestic competitors of foreign firms should not dictate local policies.It should, of course, be evident that powerful conflicting forces on free trade and protectionism ebb and flow over time. It should therefore come as no surprise that the stakes are even higher where what is at stake is the movement of people across national boundaries. The loss to any given country from keeping out potential citizens can be enormous, and we see powerful political forces clamp down on open immigration, so many of these gains from trade are lost. The situation can be even more heartbreaking when the ability to leave a country exposes innocent people to imprisonment or death.So what is the explanation for so many nations closing their borders? Much of the explanation comes from old-fashioned protectionism. Your computer programmers will take the jobs of our specialists. There is all sorts of occupational licensing and other barriers to entry within a domestic economy, so there is no reason to expect that these forces will not exert even greater influence against outsiders who do not, after all, have a voice in the local economy and who, therefore, as Alex Nowrasteh, Michael Howard, and Andrew Forrester observe, have little ability to influence domestic policy even after they enter a country. In addition, as Gabriel Chin discusses, strong racial prejudices also lead to exclusions from the domestic economy. Not only are there objections in, say, the United States and much of Western Europe, of exclusion on straight racial grounds, as exemplified by Chinese exclusion acts. The force of these exclusions are also subject to political change. Thus, the Immigration Act of 1924 (the Johnson-Reed Act) was part of a white supremacist program, which gave way two decades later to a very different legal regime with the Immigration Act of 1965, which put an end to the venerable system of national-origin quotas.Yet two other reasons for exclusion are constantly at issue. Immigrants not only bring in their labor but also their families, cultures, and traditions that, in public spaces, may clash with local norms and cultures on such elementary and critical matters as to whether women should dress modestly and wear head coverings. Will freewheeling Danes and Swedes feel comfortable if large numbers of Muslims continue their traditional practices with strong barriers between men and women? There are no obvious market mechanisms that will mitigate these issues, and the situation becomes even more fraught if there are large welfare or educational costs that fall, at least in the short run, on local citizens. These are compounded by the fact that immigrants will typically gain political rights that could easily skew the balance of political power between established and newly arrived ethnic groups by altering the outcome of national and local elections. And letting people in is not just done on a simple open-borders policy. Thus, in many countries, as Lance Pritchett discusses, there is the controversial option of letting foreigners in on short-term labor visas that require them to leave after a certain period. And there are further questions about whether people should be deported if they lied on their entry applications or committed some crime while in the new country, as has occurred in the United States. The numbers of cases can be high and their complexity great, so it is fair to ask, along with Jill Family, whether some self-conscious exceptions to the Administrative Procedure Act of 1946, analogous statutes elsewhere, should be regarded as part of the new normal.It is therefore necessary to deal with the thrust and counterthrust on all these issues. It is also fair to ask whether classical liberalism has a distinctive view on these issues, or whether the combination of private gains and multidirectional externalities gives rise to empirical questions that, as always, require further reflection, even when certain situations—the major influx of illegal immigrants on the US southern border—will generate such powerful emotions that detached intellectual inquiry is ever more difficult. We cannot answer these questions, and thus offer to you a set of essays that take a stab at these difficult topics. (shrink)

Although germline editing has been the subject of debate ever since the 1980s, it tended to be based rather on speculative assumptions until April 2015, when CRISPR/Cas9 technology was used to modify human embryos for the first time. This article combines knowledge about the technical and scientific state of the art, economic considerations, the legal framework and aspects of clinical reality. A scenario will be elaborated as a means of identifying key ethical implications of CRISPR/Cas9 genome editing in (...) humans and possible ways of dealing with them. Unlike most other discussions of CRISPR/Cas9 germline editing, which are generally based on deontological arguments, the focus in this case will be on a consequentialistic argument against certain applications of germline and somatic editing that takes not only the potential benefits and risks but also socioeconomic issues into consideration. The practical need for an indication catalogue, guidelines for clinical trials, and for funding of basic research will be pointed out. It will be argued that this need for regulatory action and discussion does not stem primarily from the fact that CRISPR/Cas9 germline editing is revolutionary in terms of its ethical implications and potential for human therapy, although this is the prevailing view in the current discussion. Understanding the value and interest dependency of arguments put forward by different stakeholders and learning from past debates related to similar technologies might prove a fruitful method of reaching judgments and decisions that come closer to a consensus upon which society as a whole can agree - which after all should be the true goal of an ethical debate and of bioethics. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Guillaume Budé, Andrea Alciato, Pierre de l’Estoile: Renaissance Interpreters of Roman LawMichael L. MonheitIn the Renaissance, jurists and other scholars intensely debated the problem of how to interpret correctly the Corpus iuris civilis (CIC), Justinian’s great sixth-century-ad compilation of Roman law. 1 Yet by the sixteenth century jurists had been closely interpreting its texts for four centuries; indeed Roman law jurists, much more than pre-Reformation theologians, innovated through close (...) commentary on the text (a characteristic sometimes wrongly considered a humanist innovation). Assuming that these texts were fully consistent, largely lacking a sense of historical distance, they “found” the CIC’s dictum on a given question by weaving many passages that seemed to address it partially into a complex logical fabric, and eliminated apparent internal conceptual disparities in the same way. 2But from the fifteenth century such humanists as Lorenzo Valla (1407–57) and Angelo Politiano (1454–94) applied humanist critical methods to the CIC and ridiculed the methods of the civilians. In the early sixteenth century the work of Guillaume Budé (1468–1540), Andrea Alciato (1492–1550), and Ulrich Zasius (1461–1535) intensified the crisis in legal interpretation. Budé, the [End Page 21] period’s leading French humanist, was the first humanist to publish an exhaustive study of Justinian’s Digest, while the Milanese jurist Alciato and the German jurist Zasius were among the first humanist-trained Roman lawyers to tackle the CIC. Across the century’s first three decades these humanists debated each other and other jurists, including the eminent Orléans professor of Roman law, Pierre de l’Estoile (1480–1537), best known to scholars as the teacher of a youthful law student named Jean Calvin. 3 We consider here a debate between Budé, Alciato, and Estoile, which also involved Nicolas Duchemin, Estoile’s student and partisan, and Calvin himself, who made his first appearance in print by contributing a preface to the work of his friend Duchemin. Though often referred to in Calvin scholarship, the debate has never been thoroughly explored. 4 [End Page 22]Unlike some recent studies of interpretation in the Renaissance, this study focuses on each interpreter’s practice, rather than his explicit methodological pronouncements alone, on what Wittgenstein calls a writer’s “language game”—here the meaning of each interpreter’s statements in the context of his interpretive practices. Indeed we shall view this debate as a clash of three “forms of life,” since the three protagonists could not agree as to what rules to follow to determine the meaning of a particular expression. 5In the passage in question, Lex Nec quicquam, §Ubi decretum, from the Digest section On the Duties of the Proconsul and Legate (D.1.16.9.1), the third century Imperial jurist Ulpian, declares:Ubi decretum necessarium est per libellum id expedire proconsul non poterit: Omnia enim quaecunque causae cognitionem desiderant per libellum non possunt expediri. (Where a decretum [decree] is required, the proconsul will not be able to dispose of the matter per libellum. All matters whatsoever requiring causae cognitio [judicial investigation] cannot be disposed of per libellum.)In unravelling the meaning of such key terms as decretum and libellus, the interpreters applied assumptions and practices rooted in both the humanist and [End Page 23] scholastic traditions—sometimes the same individual applied both. The debate presents the issue of interpretation apart from that of textual recovery, for no participant claimed any passage involved had been corrupted or offered a significant variant. Had they possessed the Mommsen edition of the CIC (albeit without necessarily understanding its principles of construction), each would have faced little added difficulty.I. Guillaume Budé on §Ubi decretumGuillaume Budé sparked the debate with his comments on the passage in the first part of his famous study of Justinian’s Digest, the Annotationes in quattuor & viginti Pandectarum libros (1508). He argued that the term libellus as used in the passage meant a supplicatory petition addressed to the Emperor. The matters involved could include both controversial cases, for which the Emperor would rely on the judgment of his council, and uncontested matters in which Emperors acted by their own “liberality or beneficence.” Budé confined himself to the... (shrink)

In the First Action of the Verrines Cicero highlights the issue of judicial corruption, which appears to be leading to the passage of legislation ending the senatorial monopoly on composition of the juries in the quaestio de repetundis. The work might theoretically, therefore, furnish an important study of how Cicero publicly positioned himself on a key political issue at a crucial point in his career. Historians, however, often dismiss the political impact of the work, arguing that jury reform (...) was essentially a fait accompli before the trial began. Rhetoricians likewise tend to understate its political importance, both because of its status as a substitute for a longer and fully elaborated oration and because of a pronounced tendency in recent scholarship to subordinate political comment in the judicial speeches to the immediate practical goals of legal advocacy. Cicero's prosecution of Verres, however, involved an unprecedented move in the orator's career. Through the trial he injected himself forcefully, and for the first time, into a contemporary political debate and thereby created for himself a new space from which to operate within the political landscape. (shrink)

The ethics of biobanking is one of the most controversial issues in current bioethics and public health debates. For some, biobanks offer the possibility of unprecedented advances which will revolutionise research and improve the health of future generations. For others they are worrying repositories of personal information and tissue which will be used without sufficient respect for those from whom they came. Wherever one stands on this spectrum, from an ethics perspective biobanks are revolutionary. Traditional ethical safeguards of informed consent (...) and confidentiality, for example, simply don’t work for the governance of biobanks and as a result new ethical structures are required. Thus it is not too great a claim to say that biobanks require a rethinking of our ethical assumptions and frameworks which we have applied generally to other issues in ethics. This paper maps the key challenges and controversies of biobanking ethics; it considers; informed consent (its problems in biobanking and possibilities of participants’ withdrawal), broad consent, the problems of confidentiality, ownership, property and comercialisation issues, feedback to participants and the ethics of re-contact. (shrink)

This volume explores Kant's cosmopolitanism and its implications for a Kantian-inspired cosmopolitics. The contributors provide a definitive source and specification of key new areas in the field of Kantian cosmopolitanism and how it is integral to current debates in political theory, political philosophy and international relations.

In the past decade, scholars such as Samuel Freeman, Martin O’Neill, Alan Thomas and others have argued that no matter how widely Rawls’s theory of justice (TJ) was understood as a defence of the welfare state (WS), the socio-economic system Rawls defends and always defended is property-owing democracy (POD). In this article I present the argument that Rawls did not defend POD in TJ. However, while the claim that it was POD the socio-economic system implied by the principle of difference (...) generated heated reactions by defenders of the WS, the argument I raise differs from most of them. In the article I maintain that, for Rawls, principles of justice underdetermine the choice of social systems, and that although this is true of both principles, it is especially true of the difference principle, whose ability to arbitrate between different social and economic policies is limited. I show how the attempt to uniquely determine the set of social and economic policies authorized by the difference principle clashes with what Rawls explicitly states in TJ and contrasts with central aspects of his sociological and political conception of socio-economic decision-making. Although my aim is to show that the difference principle itself does not discriminate among socio-economic systems, this does not preclude that additional reasons can help in narrowing the range of socio-economic systems allowed. With reference to the ideal of social union that Rawls expounds in the third part of TJ, I argue that TJ does, in fact, offer additional reasons to appraise the WS as preferable to POD. I maintain that the centrality Rawls attributes to the social unity of a just society provides the basis for an understanding of Rawls’s position towards POD after TJ. (shrink)

Utilitarianism directs us to act in ways that impartially maximize welfare or utility or at least aim to do that. Some find this view highly compelling. Others object that it has intuitively repugnant results; that it condones evildoing and injustice; that it is excessively imposing and controlling; that it is alienating; and that it fails to offer meaningful practical guidance. In this 'Little Debates' volume, James Lenman argues that utilitarianism's directive to improve the whole universe on a cosmic time scale (...) is apt to lead it down a path of imperious moral overreach. Lenman further maintains that the project ultimately shipwrecks upon an extreme lack of epistemic humility in framing the determinants of what is morally right and wrong beyond the limits of what we can ever hope to know. Utilitarianism thus leaves us morally clueless. In contrast, Ben Bramble seeks to develop and defend an original form of utilitarianism, less vulnerable than other, more familiar versions to a number of important objections (including those raised by Lenman). Bramble's form of utilitarianism aims to avoid other unappealing results by presenting it as a claim about what we have the most reason to do and not as a theory of right action (which Bramble urges we should understand quite differently by referencing what would motivate virtuous people). The two authors debate various forms of this longstanding ethical theory, arguing for very different conclusions, in a way that is sure to leave readers with new views of their own moral thoughts and lives. Key Features: Focuses on one of the dominant ethical theories debated by moral philosophers today Clearly written, free of jargon and technicality, highly accessible to students Accessibly addresses questions of great importance to anyone wishing to grow in understanding of human moral life Provides a glossary of key terms that are bolded in the main text Includes section summaries that give an overview of the main arguments and a comprehensive bibliography for further reading Important issues discussed include: welfare; value; right action; virtue; impartiality; obligations to non-human animals; the badness of human extinction; the happiness of future people; the ethics of climate change; the long term future; and the moral significance of the limits to what we can know. (shrink)

Although American scholars sometimes consider European legal scholarship as old-fashioned and inward-looking and Europeans often perceive American legal scholarship as amateur social science, both traditions share a joint challenge. If legal scholarship becomes too much separated from practice, legal scholars will ultimately make themselves superfluous. If legal scholars, on the other hand, cannot explain to other disciplines what is academic about their research, which methodologies are typical, and what separates proper research from (...) mediocre or poor research, they will probably end up in a similar situation. Therefore we need a debate on what unites legal academics on both sides of the Atlantic. Should legal scholarship aspire to the status of a science and gradually adopt more and more of the methods, (quality) standards, and practices of other (social) sciences? What sort of methods do we need to study law in its social context and how should legal scholarship deal with the challenges posed by globalization?" -- Page i. (shrink)

This corpus analysis of linguistic and semantic features in French parliamentary debates concerning online hate speech regulation, highlights tensions between state powers and private rights. Two key themes are identified: first, the _problem of definition_: how such online content is defined in the debates, and second, the _problem of regulation_: how the debates negotiate the supra-jurisdictional and individual jurisdiction issues involved, in regulating both the global online content and the responsibilities of the owners of the platforms who manage the content. (...) For this analysis, the authors created a corpus of French National Assembly Examination Committee discussions and public sessions between July 2019 to January 2020 discussing the _Loi Avia _(Avia Law). The corpus was analysed using quali-quantitative methods. Overall, the study combines a top-down (global) and a bottom-up (local) analysis of the data, applying corpus semantic approaches (Lecolle et al. in Langages 210(2):35–54, 2018; Rastier in The Routledge handbook of semantics, Routledge, pp 507–522, 2015) to contextualize the analysis of the meta-discourse (Hyland in Meta-discourse: exploring interaction in writing, 1st ed. Bloomsbury Academic, Bloomsbury Collections, 2018. https://doi.org/10.5040/9781350063617 ). The analysis highlights the linguistic features revealing the power dynamics inherent within the discourse and counter-discourse of the dominant and opposition political parties respectively. (shrink)

Scheuerman’s book is one of the handful of significant attempts to rethink Schmitt’s work systematically over the past four decades. In so doing, he raises three key questions for me. First, is Schmitt’s work a sincere contribution to legal and political theory, or an attempt to argue for setting the rule of law aside for authoritarianism, that is, an instrumental critique of indeterminacy? Second, to what extent is Schmitt – critical of the ‘bourgeois’ rule of law, critical of (...) globalization – really a thinker defending capitalism? Can he really be associated with the Ordoliberals (even if they adopted his arguments from 1931 to 1932 in their own writing of the time)? Third, to what extent were Schmitt’s early contributions to National Socialist law aimed at responding to legal indeterminacy, and to what extent did they in fact point towards a radicalism of German law within the Nazi system, especially insofar as they endorsed making decisions based on the principles of justice of the Nazi state – and potentially against the express language of statutes? (shrink)

Philosophy lecturer and essayist Gary Jason tackles timely issues from education reform to the Arab Spring in his new anthology Disturbing Thoughts: Unorthodox Writings on Timely Issues. Disturbing Thoughts collects more than 160 political and social commentary essays published between 2010 and 2012. Among the many topics addressed are environmentalism, public employee pensions, education, and political reform. Today's headlines are filled with discussion on the growing dysfunction of unfunded pension benefits, the debate over immigration, and concerns about the shale (...) industry. Whatever the topic, Jason doesn't shy away from offering his opinion, asking, for instance, how could we allow in many more immigrants legally without causing financial strain. Disturbing Thoughts arrives as a follow-up to Jason's 2011 anthology, Dangerous Thoughts, which collected a similarly eclectic set of essays written between 1979 and 2010. His most recent articles include pieces published in Liberty, American Thinker, The Orange County Register, The Washington Times, and The American. Jason comes to issues from the classical liberal position-albeit with an unusual perspective that sets him apart from most other political commentators. Whether you agree or not, his views are sure to keep readers thinking. (shrink)

In this Critical Notice of Emily Jackson and John Keown’s Debating Euthanasia , the respective lines of argument put forward by each contributor are set out and the key debating points identified. Particular consideration is given to the points each contributor makes concerning the sanctity of human life and whether slippery slopes leading from voluntary medically assisted dying to non-voluntary euthanasia would be established if voluntary medically assisted dying were to be legalised. Finally, consideration is given to the positions adopted (...) by the contributors in relation to the legalisation of voluntary medically assisted dying. (shrink)

Stasis is a process of classical rhetoric that identifies the core issue in a trial or a similar debate. Hermagoras of Temnos included the first comprehensive analysis of stasis in his second-century BCE treatise on rhetoric, now lost. Modern scholars tend to echo George Kennedy, who maintains that Hermagoras’ inspiration for the hierarchical structure of stasis is indeterminate. This article, however, employs scholarship in legal semiotics, including the work of Miklós Könczöl and Bernard S. Jackson, to (...) argue that Hermagoras based stasiastic structure on Aristotle’s first-figure syllogism. Ideally, knowledge of that structure can enhance modern applications of stasis. (shrink)

Modern moral and political philosophy is in debt with natural law theory, both in its ancient and mediaeval elaborations. While the very notion of a natural law has proved highly controversial among 20th Century scholars, the last decades have witnessed a renewed interest in it. Indeed, the threats and challenges as result of multiculturalism, plural societies and global changes have generated a renewed attention to natural law theory. Clearly, it offers solid basis as possible framework to a better understanding of (...) human goods without contradictions and partial bias. The purpose of the present volume is to provide an overview of the history of this concept (Cicero, St. Paul, Aquinas, Melanchthon, Montaigne, Descartes, Leibniz, Hume, Burke, Kant, MacIntyre, etc.) as well as a deep understanding of ongoing research, both in Europe and in America. Furthermore, the specificity of these studies will be of particular value to philosophers, law-philosophers, historians, anthropologists, sociologists and theologians, and those concerned on such issues as the relation between law and moral norm, law and practical reason, and the presence of the idea of natural law in several prominent thinkers. It includes a selected bibliography on natural law. The book also provides an excellent introduction to several of the major topics in natural law theory making it useful both as a reference text and as a sourcebook for academics alike. Natural law is a rich, complex, and highly disputed term. Since its first appearances in the history of Western civilization, it has been used both to point to God as the source of the moral order and to assert that there is an objective order of justice in nature that men and their laws ought to respect. In modern times, natural law theory gave birth to what we usually call "human rights." Unlike the meaning of the term, the importance of an ongoing debate on natural law and on the theories related to it is undisputable. This is why I welcome today this new collection of essays edited by Alejandro Nèstor Garcìa Martìnez, Mario Å ilar and Josè M. Torralba. Natural Law: Historical, Systematic and Juridical Approaches includes a wide variety of studies, covering key authors and issues in natural law theory. Younger students will appreciate the clarity of the chapters, and more trained readers the detailed and accurate bibliographical references that each of them offers. The editors's choice to go from a historical approach to contemporary theories, and then to theoretical and more practical issues is also commendable. Students in philosophy and in legal theory will greatly benefit from this book. Fulvio Di Blasi, author of God and the Natural Law: A Rereading of Thomas Aquinas. (shrink)

In simple action theory, when people choose between courses of action, they know what the outcome will be. When an individual is making a choice "against nature," such as switching on a light, that assumption may hold true. But in strategic interaction outcomes, indeterminacy is pervasive and often intractable. Whether one is choosing for oneself or making a choice about a policy matter, it is usually possible only to make a guess about the outcome, one based on anticipating what (...) other actors will do. In this book Russell Hardin asserts, in his characteristically clear and uncompromising prose, "Indeterminacy in contexts of strategic interaction... Is an issue that is constantly swept under the rug because it is often disruptive to pristine social theory. But the theory is fake: the indeterminacy is real."In the course of the book, Hardin thus outlines the various ways in which theorists from Hobbes to Rawls have gone wrong in denying or ignoring indeterminacy, and suggests how social theories would be enhanced--and how certain problems could be resolved effectively or successfully--if they assumed from the beginning that indeterminacy was the normal state of affairs, not the exception. Representing a bold challenge to widely held theoretical assumptions and habits of thought, Indeterminacy and Society will be debated across a range of fields including politics, law, philosophy, economics, and business management. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of (...) the rule of law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

The article aims to illuminate the recent debate in Germany about the legitimacy of circumcision for religious reasons. The aim is both to evaluate the new German law allowing religious circumcision, and to outline the resulting conflict between the surrounding ethical and legal issues. We first elucidate the diversity of legal and medical views on religious circumcision in Germany. Next we examine to what extent invasive and irreversible physical interventions on infant boys unable to given their consent (...) should be carried out for non-medical reasons. To this end, the potential benefits and harms of circumcision for non-medical reasons are compared. We argue that circumcision does not provide any benefits for the ‘child as a child’ and poses only risks to boys. We then set out to clarify and analyse political justifications of the new circumcision law. We demonstrate through this analysis how the circumcision debate in Germany has been transformed from a legal and ethical problem into a political issue, due at least in part to Germany's unique historical context. Although such a particular political sensibility is entirely comprehensible, it raises particular problems when it comes to framing and responding to medical ethical issues – as in the case of religious circumcision. (shrink)

The law applicable to genomics in the United States is currently in transition and under debate. The rapid evolution of the science, burgeoning clinical research, and growing clinical application pose serious challenges for federal and state law. Although there has been some empirical work in this area, this is the first paper to survey and interview key scientific and legal stakeholders in the field of genomics to help ground identification of the most important legal problems that must (...) be solved to successfully integrate genomics into clinical care. The respondents in this study identified a wide range of interconnected issues, focusing specifically on the need for clear guidelines about how to use these data, fear of liability for those who use these data, and the need to protect patients from use of this information particularly by insurers, while endorsing data sharing. Developing legal strategies to support appropriate use of genomics now and in the future clearly will require making trade-offs, taking into account the full complexity of this legal ecosystem. (shrink)

In the United States today, the use or possession of many drugs is a criminal offense. Can these criminal laws be justified? What are the best reasons to punish or not to punish drug users? These are the fundamental issues debated in this book by two prominent philosophers of law. Douglas Husak argues in favor of drug decriminalization, by clarifying the meaning of crucial terms, such as legalize, decriminalize, and drugs; and by identifying the standards by which alternative drug policies (...) should be assessed. He critically examines the reasons typically offered in favor of our current approach and explains why decriminalization is preferable. Peter de Marneffe argues against drug legalization, demonstrating why drug prohibition, especially the prohibition of heroin, is necessary to protect young people from self-destructive drug use. If the empirical assumptions of this argument are sound, he reasons, drug prohibition is perfectly compatible with our rights to liberty. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reading the Mind:From George Eliot's Fiction to James Sully's PsychologyVanessa L. RyanWhat is the function and value of fiction? Debates over these questions involve considerations that range from aesthetics to ethics, from the intrinsic values of the genre to its moral effects. Recently, largely under the influence of the cognitive sciences, the question has taken on a new cast: might science give us a new answer to these long-standing (...) issues? Studies such as Lisa Zunshine's Why We Read Fiction (2006), John Carey's What Good Are the Arts? (2005), and Alan Palmer's Fictional Minds (2004) are part of a growing area of interdisciplinary work on the relationship between art and consciousness.1 This body of work asks not just how our theories of consciousness inform our understanding of the process and function of [End Page 615] reading fiction, but also whether fiction itself might provide a key to new theories about the nature of consciousness.The nineteenth-century novel is often considered the high point in the literary representation of mind. Indeed, the terms "psychology" and "novel" are explicitly yoked in the nineteenth-century with the simultaneous emergence of both as discrete forms of intellectual and artistic activity. Not surprisingly, George Eliot has come to be identified with the term "psychological novel": in fact, Nicholas Dames argues that she was the first to couple the words psychology and novel in this way in an 1855 review where she contrasted Charles Kingsley's historical romance Westward Ho! with "those 'psychological' novels."2 While George Eliot initially used the phrase in what Dames calls "mock disdain," by the end of the nineteenth century the term "psychological novel" had gained currency as a straightforward description of a type of Victorian novel: Wilbur Cross, in his summary The Development of the English Novel, for example, describes the form as "stressing an inner sequence of thought and feeling, which is brought into harmony with an ethical formula and accounted for in an analysis of motive." Along with Elizabeth Gaskell and George Meredith, Cross also cites George Eliot as one of his central examples of the "psychological novel."3It seems natural, then, when a critic asks, "what is the special distinguishing function of the modern art of fiction?" to turn for an answer to George Eliot's novels and their close connections with psychological science. It is perhaps surprising that this still-current question was posed by the nineteenth-century psychologist James Sully (1842–1923) in an 1881 article in the journal Mind on "George Eliot's Art."4 His essay offers us a Victorian contribution to questions about the relationship of literature and psychology that are being addressed today by critics such as Sally Shuttle-worth, Athena Vrettos, Kay Young, Nicholas Dames, or Rick Rylance, especially [End Page 616] with respect to George Eliot. James Sully's essay not only provides valuable insight into how the Victorians themselves understood the role of psychology in the novel, but also helps to place contemporary debates about fiction and consciousness into sharper relief.In the wake of important studies, such as Rylance's Victorian Psychology and British Culture (2000), that have brought renewed attention to nineteenth-century British psychology, recent scholarship has shown the central role of Victorian debates about the mind in shaping the fiction of the period.5 Nineteenth-century mental science provided material and inspiration for works of literature, with imaginative writers eager to exploit and develop the narrative and thematic potential of contemporary psychological discourse and probe the problems it raised. Novelists such as Wilkie Collins, George Eliot, and Henry James turned to some of the most current work in the science of the mind, which they saw as the most sophisticated and credible approach to psychological realism available. These and other novelists rapidly absorbed the central terms of the new science as it considered problems of consciousness, identity, and memory, and brought them to life by dramatizing and questioning them in their fiction. James Sully's interest in George Eliot reflects this fruitful mid- to late-nineteenth-century cross-pollination between philosophers, scientists, and novelists who were interested in the nature of consciousness, psychology... (shrink)

Written not by a journalist or politician but rather by a theology professor with a Ph.D. in New Testament studies, Voting by the Bible: The Economic and Foreign Policy Issues begins with the assumption that God intended the Bible to give guidance to every area of life£including how governments should function. Derived from author Wayne Grudemþs magisterial Politics£According to the Bible, this book highlights those economic and foreign-policy issues that have dominated political debate recently. Throughout, author Wayne Grudem supports (...) political positions that would be called more 'conservative' than 'liberal.' However, 'it is important to understand that I see these positions as flowing out of the Bible's teachings rather than positions I hold prior to, or independently of, those biblical teachings,' he writes. 'My primary purpose in the book is not to be liberally or conservative, or Democrat or Republican, but to explain a biblical worldview and a biblical perspective on issues of politics, law, and government.' Concise yet carefully argued, this book is a must-read for any Christian concerned about current debates over the economy, the size and role of government, and the best way forward out of the current recession. Not every reader will agree with the book's conclusions. But by grounding his analysis deeply on Scripture, Grudem has equipped Christians to better understand and respond to some of today's key political debates wisely and in a manner consistent with their primary citizenship as members and ambassadors of the kingdom of God" -- Publisher description. (shrink)