ABSTRACTThis brief report discusses ethical-legal considerations in providing legal aid to refugees internationally. With the help of a case study, it considers the challenges lawyers and other leg...

Activists and academics have clamoured for the decolonisation of knowledge, including law. But, unfortunately hardly anyone has put forth strategies for how faculties should decolonise the law. A number of jurists have underscored the necessity to draw on customary laws and traditional values. Still, the #RhodesMustFall movement has, for the most part, been loud on the outcomes, but quiet on the methodologies. Joining the conversation on the decolonisation of epistemologies, this article contributes to the ongoing efforts to sanitise the law (...) by proposing to revive African oral storytelling cultures as a way to analyse the questions of law facing society. To live up to this task, this article adopts decolonial theory and, through stylised examples, illustrates how lawyers and social scientists in Africa can utilise storytelling to contextualise, construct, and comprehend those questions. This article assumes that lawyers can use African storytelling alongside the prevailing doctrinal method. That method, relaying the coloniality of law and captured by the acronym IRAC, rules, application, and conclusion), trains students to approach conflict in society through a highly abstract and decontextualised problem-solving model. Lately, some social scientists have discovered the practicality of storytelling in presenting analysis and research. However, in African oral traditions, stories worked differently from the manner in which those scientists employ them. African storytelling played a leading role, not only in conveying collective wisdom and social memory from one generation to the next, but also as a medium through which communities transmit the values that hold them together.Contribution: This article adds to the scholarship on storytelling and narratology by showing how educators can utilise stories to analyse legal questions. That rich scholarship in the humanities and the social sciences has so far not taken seriously the possibility of using stories to analyse research problems. Instead, scholars focus on storytelling mainly as a way of presenting science, not as an analytical tool. This article bridges that gap and demonstrates the analytical value of storytelling. (shrink)

The book reconstructs the history of Western ethics. The approach chosen focuses the endless dialectic of moral codes, or different kinds of ethos, moral doctrines that are preached in order to bring about a reform of existing ethos, and ethical theories that have taken shape in the context of controversies about the ethos and moral doctrines as means of justifying or reforming moral doctrines. Such dialectic is what is meant here by the phrase ‘moral traditions’, (...) taken as a name for threads of moral discourse, made in turn of other interwoven threads, including transmission of shared codes, appeals to reform of prevailing custom, rational argument about the justification of some precept on the basis of some shared general teaching or principle, and rational argument about the ultimate basis for principles and justification of authoritative teaching. That is, the approach adopted to the reading of ethical texts depends on a firm belief in the fact that philosophers hardly created any ethical doctrine out of nothing. The main point this book tries to highlight is how different philosophical theories emerged and followed each other as a result of attempts at accounting for what was going on in the world of moral traditions. Changes were propelled by controversies between different schools, and highly abstract arguments were the unintended effects of moves made by controversialists forced to transform (and occasionally to turn upside down) their own doctrines in order to face the challenge posed by other arguments. This is the reason why the book examines not only texts that already enjoy pride of place in the history of philosophy (Aristotle, Kant, Hegel), but also other texts usually treated in the histories of religions (the Bible, the Talmud, the Quran), and others considered to be much less philosophical (Plutarchus, Pufendorf). -/- 1. Plato and a response to ethical scepticism. Two different traditions of morality in VI-V century Greece are described. The birth of philosophical questioning of traditional morality and temporal and spatial variation of custom is described within the context of the v century crisis, the demise of traditional aristocratic and tyrannical rule and the birth of democracy. Two conflicting answers to the challenge are reconstructed, namely conventionalist or immoralist theories formulated by the Sophists and the eudemonist and intellectualist Socratic theory. Plato’s own reformulation of Socrates answer to the Sophists is reconstructed. His psychological views, his classification of the four cardinal virtues and his political theory are described as parts of a unitary system, culminating in an extremely realist moral ontology identifying the idea of the good with the essence of the (moral and extra-moral) world itself. -/- 2. Aristotle and the invention of practical philosophy. Aristotle’s invention of practical philosophy as a field separated from first philosophy is shown to be an implication of his break with Plato moral ultra-realism. Aristotle’s agenda in his moral works is arguably dependent on a polemical intention, namely dismantling Socratic intellectualism. The semi-inductive or virtuously circular method of practical philosophy is illustrated, starting with the received opinions of the better and wiser individuals and trying dialectically to sift what is left of mistake and inconsistence in such opinions, finally trying to correct mistakes and make the overall practical science more consistent. The chapter illustrates then the relationship of individual ethics, or ‘monastics’, with the art and the science of the pater familias, or ‘economics’, and the science of the ruler and citizen, or politics. The nature of virtues, or better, excellences of character, is discussed, highlighting the basic role of hexis, or ‘disposition’. Prudence, or better practical wisdom, is the focus of the chapter. Its relationship with bouleusis or deliberation is examined, and its autonomous status vis-à-vis theoretical knowledge is stressed. -/- 3. Diogenes and philosophy as a way of life. The chapter provides an overview of Hellenistic ethics, which almost amounts to Hellenistic schools of philosophy, in so far as ‘philosophy’ became in these centuries primarily the name for a way of life. The typical character of the Cynical movement is highlighted, that of a school of life, not a school aimed at providing any kind of intellectual training was to be provided. -/- 4. Epicurus and ethics as self-care. The peculiar character of the Epicurean school is described, a combination of a science of well-being aiming, more than at pleasure as in the popular view, at reduction of useless suffering, of unnecessary needs, and at a balanced selection of pleasures of the best and most durable kind. -/- 5. Epictetus and ethics as therapy of the passions. The various phases of Stoicism are described, and the shifting place given to ethics in the Stoic system of idea, culminating in the paradoxical view of ethics, its impossibility in principle notwithstanding, as the only truly significant and necessary part of philosophy. Cicero is treated, showing how his own synthesis of various Hellenistic trends is as a truly philosophical enterprise, deserving serious consideration after one or two centuries when he was confined to the role of literate. Epictetus is chosen as the best example of what the Stoic tradition could yield, an art of living based on sophisticated introspection, in turn aimed at making a kind of cognitive therapy possible, dismantling obnoxious passions at their root by systematically correcting false representations. -/- 6. Philo and the reconciliation of Torah and Platonism. A reconstruction of basic ideas from a few books of the Hebrew Bible is provided, starting with the Prophetic tradition and the focus on God’s mercy as the source of motivation and standard for human behaviour. Then a comparative analysis is undertaken of a parallel tradition, namely the three codifications of the Torā (Law or, better, Instruction), highlighting how a core of moral ideas may be recognized as a basis and preamble of codification of civil law, cultural practice, and regulation of ritual purity. The importance of Leviticus is stressed as the turning point when emphasis mercy, typical of the Prophetic tradition, is combined with the legal tradition, yielding the change in sensibility of the Second Temple time. Philo of Alexandria is described as one of the three leading figures – together with Rabbi Hillel and Rabbi Yeshua – at the apex the emergence of the mentioned new sensibility, gradually including mercy as an essential part of justice and establishing the starting point of both the Rabbinic and the Christian tradition. This consists precisely in the precept of one’s neighbour’s love or of the golden rule, two eventually identical precepts whose meaning is arguably more sober and sensible than the long-lasting Christian tradition deriving from John and Augustine has made us believe and no novelty vis-à-vis so-called Ancient-Testament teachings. -/- 7. Augustine and Christianity as Neo-Platonism. The first section examines the moral doctrines of so-called 'ethical Treaties' from the Talmud, a group of treaties, among which the best known is Pirqé Avot, that were left out of the six "orders" of the canon as they did not fit in any of the six groups of issues ritual or legal on which the division was based. According to Maimonides, their peculiar theme is provided by the Deòt, 'opinions', i.e., mental dispositions, that is, the translation of the Greek term hexeis and Arab akhlak (in turn providing in this language the name for ethics as such). The three topics I reconstruct are: i) the notion of Torah: The Torah is understood as the world order itself, or as the ‘Wisdom’ that existed even before creation and was ‘the tool by which the world was built’; however, the Torah is an earthly and human entity, as it was "received" by humans, and from that very moment belongs to them; ii) the relationship between love of God and love of neighbour; the treaties require us to study and practice the Torah ‘for its own sake’, that is, require us to act out of love, not out of fear or hope of reward; iii) the idea of sanctification of daily life: having disappeared with the destruction of the Temple the possibility of any conflict between liturgical service and everyday life, the latter is assumed to be in itself divine service: to give food to the poor has the same value as sacrifices in the Temple, and as an implication, the insistence become recurrent on the goodness of created things in themselves along with a polemic against ascetic currents. The conclusions drawn are: i) the moral teachings of the Talmud and those of Yeshua are, rather than similar, virtually identical; one may safely say that the precept of love and the golden rule are central ones for all Talmudic rabbis, that mercy plays an indispensable role alongside with justice, and the latter is not a different thing from one’s neighbour’s love; ii) a peculiarity of Talmud rabbis facing Yeshua is the idea of study as worship, and knowledge as a source of justice; but this is an idea of Judaism after the Temple's destruction that cannot be attributed to the Pharisees of Yeshua’s time; iii) the relation of study and practice in the Talmud parallels that between faith and deeds in Paul's epistles, that is, respectively faith or learning are a necessary and sufficient condition to be recognized as righteous , but deeds are the inevitable effect of either faith or learning. The sayings ascribed to Yeshua are examined first, yielding the conclusion that a close equivalent may be found for every saying in Talmudic literature and yet the whole is ascribed to one rabbi, with rather consistent stress on God’s mercy and unconditional forgiving as the mark of true imitation of God. Thus, Yeshua’s teaching is pure Judaism. The third section describes briefly the galaxy of Gnostic currents and Manichaeism, trying to sketch the profile of moral teachings resulting from an encounter of Asian spiritual traditions, Hellenistic lore and sparks of teachings from apocalyptic Jewish currents. The last section summarizes the turbulent history of several encounters between Christian currents and Hellenistic philosophical schools. The first one was with late Cynicism. Recent, rather controversial, literature discovered the jargon and a few topics from the Stoic-Cynical popular philosophy in a few books from the New Testament itself. This, far from proving that Rabbi Yeshua had been influenced by cynic preachers, is a proof of the necessity felt by Christian preachers to translate the original ‘Christian’ teaching into a Greek lexicon deeply impregnated with cynic terminology. The second was with Platonism, yielding the mild and temperate moral teaching of Clemens of Alexandria, teaching the sanctity of nature and the human body, the joy of moderate fruition of ‘natural’ kinds of pleasures, and the beauty of the marital life – in short, the opposite of the standard picture of Medieval Christianity. Ambrose of Milan brings about a different kind of synthesis, namely with Middle Platonism, where Stoic themes prevail. The most shocking case is Augustine, where an early Manichean education is overcome in a former phase by a synthesis of Plotinian Neo-Platonism and Christian preaching, yielding a sustained polemic with the Manicheans and rather optimistic views on life and Creation, the body and sexuality, and Hebrew-Judaic tradition not far from Clemens of Alexandria. In a later phase, occasioned by controversy on the opposite front, with such Christian currents as the Pelagians and Donatists, Augustine comes back to heavily anti-Judaic and world-denying ascetic attitudes where is earlier Manichean upbringing seems to emerge again. The tragedy of medieval Christianity will be the later Augustine’s overwhelming influence. A final section is dedicated to the monastic tradition where a curious mixture of world-denying asceticism with an astonishingly penetrating ‘science’ of introspection emerges. -/- 8. Al Farabi and the reconciliation of Islam and Platonism. The Qurān and the qadit, that is, collections of sayings ascribed to the prophet Muhammad contain a wealth of precepts and catalogues of virtues mirroring moral contents from the Jewish and the Christian traditions, among them the basic notion of imitation of the Deity, where mercy is assumed to be its basic trait. An important tradition within Islam, namely Sufism, stressed to the utmost degree the role of mercy, turning Islam into a mystic doctrine centred on retreat from the world, abandonment to God’s will, and a peaceful and fraternal attitude to our fellow-beings. A secular literary tradition originating in the Sassanid Empire, the literature of advice to the Prince had for a time a widespread influence in the newly constituted Arabic-Islamic commonwealth. In a later phase, the legacy of Hellenic philosophy made its way into the intellectual elite of the Islamic world. The first important legacy was Platonic, and the Republic became the main text for Islamic Platonism. Al-Farabi wrote an enjoyable remake of the Platonic Republic, arguing that the citizen’s virtues were the basis on which the political building needs to rest. The secular lawgiver is enlightened by the light of reason in his everyday practice of governance, but room is made for the Prophet as the voice of revealed truth that confirms and completes the rational truth that philosophy may afford. In a second phase also Aristotelian and Stoic influence were assimilated. Miskawayh’s treatise was the masterwork at the time Arabic philosophy reached its Zenith. It is a treatment of the soul’s diseases and their remedies, combining the Aristotelian doctrine of the golden mean with the Stoic doctrine of the passions and elements of Galenic medicine. Towards the eleventh-twelve centuries a war raged among theologians and philosophers, finally won by the former with disappearance of philosophy as such. The newly established mainstream, yet, was no kind of intolerant fanaticism. It drew from the work of mystic theologian Al-Ghazālī, the best heir of Sufism, teaching a tolerant and peaceful attitude to our fellow-beings and a passive attitude to destiny as an expression of the Divine will. -/- 9. Moshe ben Maimon and the reconciliation of Torah and Aristotelian ethics. The encounter between the Talmudic tradition and Hellenic philosophy had taken place a first time in Alexandria at the time of Philo but the two traditions had parted way again. In fact, the kind of Platonic Judaism founded by Philo survived only within Christianity, in the fourth Gospel and then in writings by Clemens of Alexandria. The Talmudic literature had absorbed just less striking traits from the Hellenic Philosophy, namely an idea of ethics as care of the self and a role for the education of character as propaedeutic to theoretical knowledge. In the Arabic-Islamic world, a second round started when Jewish authors writing in Arabic undertook the task to prove the full compatibility of the tradition deriving from Torah and Platonic philosophy. The culmination of this attempt is provided by Moshe ben Maimon who tried to use Aristotelian ethics as a language into which the teaching from the Pirké Avot could be translated. -/- 10. Thomas Aquinas and the reconciliation of Christian morality and Aristotelian ethics. In the first section the fresh start is described of philosophical ethics in Latin Europe at the turn of the Millennium. In a first phase, Anselm and Peter Abelard built on a Platonic and Augustinian legacy. In this phase. remarkable innovations are introduced, including Abelard’s claim of the obliging character of erring consciousness. In a second phase, the rediscovery of Nicomachean Ethics thanks to Latin translation of Arabic versions gives birth to a new wave of ethical studies, recovering the very idea of Aristotelian practical philosophy, with the potential implication of full legitimization of natural morality, i.e. ethics without Revelation. Aquinas’s ethics is a theological ethics out of which it would be vain to try to extract a self-contained philosophical ethics. His treatment of topics in philosophical ethics, yet, does not boil down to repetition of Aristotelian arguments but is rather a creative reshaping of such arguments. For example, he introduces also in the practical philosophy a first principle parallel to the principle of non-contradiction; and he also carries out a synthesis of Aristotelianism, Stoicism, and neo-Platonism. Even though it is essentially moral theology, Aquinas’s doctrine - unlike Augustine – grants full citizenship to "natural" morality, firstly by rejecting the claim that the corruption of human nature due to the original sin is so radical as to leave "pure nature" incapable of moral goodness. The doctrine is presented in a more sophisticated formulation in a few of the Quaestiones, such as De Malo and De Veritate, in the Summa contra Gentes and in the commentaries to Aristotle than in the famous Summa Theologica, but the latter work includes the only or the largest exposition of some decisive part of the theory. Thus, the Summa Theologica should be read for what it is more than criticized for not being what it was not meant to be. It was not meant to be the brilliant synthesis of all that Reason he had been able to produce with what Revelation had added about which the Neo-Thomists used to dream, but rather a manual for the training of preachers and confessors, where theoretical claims are not too demanding and a few serious tensions are left. Besides a jump between the Prima Secundae and the Secunda Secundae, being the former an essay in virtue theory and the latter a handbook for confessors, the most serious tension is perhaps the one between the ethics of right reason presented in most of Ia-IIae and the eudemonistic ethics developed in quaestiones 1-5 of the same part; the alternative ethical theory which also may be found in Augustine, the Stoic view of a cosmic reason eventually coincident with the moral law, was believed by Anselm (followed by John Duns Scotus and William of Ockham) to be incompatible with eudemonism. It is questionable whether Thomas could reduce the tension proving that it is just an apparent tension, in so far as the right reason and bliss derived from knowledge of God tend to coincide, but this is just a conjecture. Thomas’s ethics is a virtue ethic, not a law-based one, and moral judgment focuses on the virtues, particularly charity, not on the commandments and even less on absolute prohibitions; Thomas, however, would not have considered a drastic alternative between law and the virtues such as the one which has been advanced in late twentieth-century philosophy to be justified. Nonetheless, when it discusses ‘special’ virtues, it ceases to be an ethics of virtue and becomes a disappointing and often contradictory discussion of legal and illegal acts. Such a discussion takes most of the time ‘reasonable’ middle positions on controversial issues but not the alternative approach that Aristotelianism would have made possible; even when some occasional Aristotelian claim shows up, such as money’s barrenness as a reason against usury, this seems to be made by an author who apparently ignores the Aristotelian Thomas of the Prima Secundae. It is an ethic of human autonomy which recognizes the binding character of the individual conscience and, potentially, even a duty to disobey unjust laws. It is true that what Thomas writes in his discussion of death penalty and persecution of heretics is simply disgusting, and yet we should blame Thomas the man, not Thomist ethical theory. Finally, Thomas’s ethics is not ethical ‘absolutism’, as both traditionalist Catholic theologians and secularist enemies of dogmatic morality tend to believe. It is instead an ethic of prudential judgment. Exceptions to this approach – or better results of logical fallacies – are such claims as the absolute character of negative precepts and of the existence of "intrinsically evil acts", claims that simply cease to make sense in the light of Thomas’s own distinction between human act and natural act, carrying consequences Thomas did not live long enough to draw or was not consistent enough to dare to draw. -/- 11. Francisco de Vitoria and casuistry. The first topic illustrated is the discussion about the notion of pura natura, namely the human condition after the original sin and before divine revelation. The core notion was already there in Aquinas but was later developed by Caietanus (Thomas de Vio) with a number of interesting implications: firstly a view of human nature as such much more positive than Augustine’s and his followers’ view, including both Calvinists and Jansenists; secondly, the implication that the philosopher’s morality, as opposed to the Christian’s morality, is a quite respectable kind of morality; thirdly, that theocracy and prosecution of the unfaithful lacked justification, with more far-fetching consequences than Aquinas himself had dared to draw. The second topic is casuistry, a new name for a comparatively older way of thinking, which was already there in late Stoicism and Cicero as well as in the Talmudic literature. This is an approach aimed at yielding probable enough solutions for doubtful cases even in absence of completely safe staring points. The genre developed from medieval reference books for confessors and became by the sixteenth-century a sophisticated tool-box for dealing with various fields of applied ethics. Francisco Vitoria, the main authority of Baroque Scholasticism, was a controversial figure, among the proponents of the new discipline of casuistry and a consistent proponent of more separation between the religious and the civil authority, stricter limits to the legitimacy of war, innate rights of non-Christian nations in the New World based on the notion of pura natura, providing a standard of ‘natural’ goodness, previous to revelation, on which the Indian nations were judged to live in a naturally good condition, provided with the institutions of family, justice, and religion had accordingly a right to full respect by Christian sovereigns. Bartolomé de Las Casas, arguing along similar lines, was the leader of a historical battle in defence of the rights of the Indios. -/- 12. Michel de Montaigne and the art of living. A short description of one of the Renaissance Phyrronism, one of the classical philosophies revived in the fifteenth and sixteenth century. Montaigne combines the sceptical epistemology with an understanding of ethics – indeed of philosophy as a whole – in terms of an art of living inspired by two basic ideas, sagesse, that is, practical wisdom as the only kind of rationality available after theology, science, and tradition have declared bankrupt, and an aesthetic ideal of self-transformation through the art of writing and introspection. -/- 13. Pierre Nicole and neo-Augustinianism. The chapter illustrates first the vicissitudes of Augustinianism newly born after the late medieval triumph of Thomist Aristotelianism in the alternative Protestant and Catholic versions processed by the Calvinists and the Jansenists. Then it illustrates the doctrines of Pierre Nicole, Blaise Pascal’s best disciple, on the impossibility of introspection, on the ubiquity of self-deception, on the incurably evil character of the passion of love, and on the two moralities, the one of the man of the world, the morality of honesty which is indispensable for granting peace and order but devoid of any true value for eternal salvation, since the same external behaviour may be prompted by opposite motivations, and the morality of charity, the only true one but also useless to society. The third topic is Pierre Malebranche’s view of self-deception as a ubiquitous phenomenon accounting for human action and responsibility and his reformulated theory of self-love, no less ubiquitous than for Nicole and yet not as incurably evil, given the distinction between morally indifferent and even necessary amour de soi and vicious amour proper, a distinction on which the whole of Rousseau’s moral and political theory rests. -/- 14. Samuel von Pufendorf and the new science of morality. The chapter is dedicated to the discovery of the idea of a ‘new moral science’. Hugo Grotius is discussed first highlighting the real character of his project, much closer to the Thomist idea of a natural law accessible to non-corrupted human reason when human beings are living in a state of pura natura. Then Hobbes’s combination of scepticism, voluntarism, and conventionalism is described and both the continuity with Grotius’s new science, in the search for non-revealed rational morality, and the break with him, in the adoption of voluntarism and refusal of an intellectualist view of natural law, are illustrated. Pufendorf’s work is illustrated as a synthesis of the two previous attempts and the – up to Schneewind underestimated – paradigmatic example of the new science of morality. -/- 15. Richard Cumberland and consequentialist voluntarism. The chapter gives an overview of eighteenth-century Anglican ethics, noticing how the Cambridge tradition gave special weight to natural theology as opposed to positive or revealed theology – and how two Cambridge fellows, John Gay and Thomas Brown, elaborated on Cumberland’s (and Malebranche’s, as well as Leibniz’s) strategy for finding a third way between intellectualist view and voluntarist view of the laws of nature. The result of their elaboration was a kind of a rational-choice account of the origins of natural laws, where a law-giver God chooses among a number possible sets of laws on a maximizing criterion, and God’s maximandum is happiness for his creatures. The chapter notices also how such a solution aimed at solving at once the problem of evil and that of the foundation of moral obligation by proving how God’s choice was justified as far as it was the one minimising the amount of suffering in the world. 16. Richard Price and intuitionism. The chapter describes first the doctrines of the Cambridge Platonists, an example of hyper-rationalist reaction to Calvinism. Secondly it describes the sophisticated and universally ignored – from Sidgwick to Anscombe –version of what was later labelled ‘ethical intuitionism’ – showing how it escapes familiar objections and misrepresentations of intuitionism – from Mill to Rawls – in grounding its argument on transcendental arguments while carefully avoiding recourse to introspection and psychological evidence, which has been taken as a too easy target by critics of intuitionism. Thirdly, the chapter discusses Whewell’s ‘philosophy of morality’, as opposed to ‘systematic morality’, not unlike Kant’s distinction between a pure and an empirical moral philosophy. Whewell worked out a systematization of traditional normative ethics as a first step before its rational justification; he believed that the point in the philosophy of morality is justifying a few rational truths about the structure of morality such as to rule hedonism, eudemonism, and consequentialism; yet a system of positive morality cannot be derived solely from such rational truths but requires consideration of the ongoing dialectics between idea and fact in historically given moralities. Whewell’s intuitionism turns out closer to Kantian ethics than commentators have made us believe until now, and quite different from what Sidgwick meant by intuitionism. -/- 17. Adam Smith and the morality of role-switch. The chapter describes first, Hutcheson’s attempt at basing the ‘new science’ of natural law on different bedrock than Pufendorf and the English Platonists, namely a moral sense, a faculty whose existence is assumed to be proved on an empirical basis. The second step is a reconstruction of Hume’s rejoinder in terms of a new science of man including morality on an ‘experimental’ basis, that is, a ‘Newtonian’ hypothetical-deductive approach, distinguished from Hutcheson’s allegedly uncritical descriptive approach to human nature. The third step is a reconstruction of Adam Smith theory of morality understood as emerging from a spontaneous interplay of exchanges of situations (the most basic meaning of the word ‘sympathy’ as construed by this author). -/- 18. Jeremy Bentham and utilitarianism. The bulk of the chapter is dedicated to the doctrines of Jeremy Bentham. The Enlightenment spirit that suggested the idea of a new morality, free from religion, is illustrated. The notion of utility is illustrated as well as the subsequent formulations of the principle of utility. The idea of felicific calculus is discussed, showing how its inner difficulties prompted several reformulations of the principle of utility in order to avoid undesirable implications of proposed formulations. The role of the thesis of spontaneous convergence between interest and duty is discussed, showing how it left numberless questions open, and the distinction between the virtues of prudence, justice and beneficence is described as a way out of the deadlocks of classical utilitarianism. After Bentham, Mill’s reformed utilitarianism is reconstructed, showing how it is a kind of mixed system – as closer to common sense as it gives up Bentham’s claims to consistency and simplicity – resulting as unintended consequences from the controversies in which Mill was too keen to engage. The hidden agenda of the controversy between Utilitarianism and Intuitionism, going beyond the image of the battle between Prejudice and Reason, is described, showing how both competing philosophical outlooks turn out to be more research programs than self-contained doctrinal bodies, and such programs appear to be implemented, and indeed radically transformed while in progress thanks to their enemies no less than to their supporters. -/- 19. Immanuel Kant, practical reason and judgment. The chapter argues that Kant took from Moses Mendelssohn the idea of a distinction between geometry of morals and a practical ethic. He was drastically misunderstood by his followers precisely on this point. He had learned from the sceptics and the Jansenists the lesson that men are prompted to act by deceptive ends, and he was aware that human actions are also empirical phenomena, where laws like the laws of Nature may be detected. His practical ethics made room for judgment as a holistic procedure for assessing the saliency of relevant moral qualities in one given situation; this procedure yields the same results as the geometry of morals does for abstract cases but does so immediately and without balancing conflicting duties with each other, since what makes for the salient quality of a situation is perceived from the very beginning. Kant's practical philosophy is richer than the received image, making room for an ‘empirical moral philosophy’ or moral anthropology including treatment of commerce, needs, value and price, happiness and well-being; the overall social theory and philosophy of history is less different from Adam Smith's than the received image makes believe; the paradox of happiness is central to Kant's philosophy; a distinction between happiness and well-being is clearly drawn; the distinction plays a basic role in establishing a link between the economic and the moral life. -/- 20. Georg Wilhelm Friedrich Hegel and the critique of abstract universalism. The chapter describes first the Romantic movement and the implications some of its concerns, rescuing passions, community, tradition, the individual as the bearer of a unique destiny, and the longing for organic unity between the individual, mankind and nature. Hegel’s contribution is discussed then, highlighting how, on the one hand, he shared a number of these concerns and on the other he had more rationalist leanings. The notion of morality is the pivotal point of the reconstruction, highlighting how Hegel construes this notion as a key to his own diagnosis of the malaise of modernity – the separation of individual and Gemeinschaft – and how his attack on Kant turns around this very idea. -/- 21. Friedrich Nietzsche against Christianity and the Enlightenment. The chapter illustrates first the idea of deconstruction of the back-world of values. Nietzsche claims to be legitimate heir of the French moralists, Leibniz, Kant and Hegel, in so far as he allegedly carries out to its deepest implications their discovery of what lies behind traditional naïve belief in the existence of an objective realm of values just waiting for description by the philosopher. The two exemplars form which genealogy draws inspiration are the classical philologist’s historical reconstructions of lost meanings and the chemist’s decomposition of elements. Then the genealogy of the notions of good and evil carried out in the first dissertation of Genealogy of morals is illustrated with its paradoxical conclusion that will to power is in fact the only ‘genuine’ kind of goodness. The third point illustrated is the dialectic of ascetism and self-realization with its ambiguous outcome. The suggested interpretation of such outcome is that Nietzsche’s normative ethics is a kind of virtue ethics taking an aesthetic ideal as a normative standard -/- 22. George Edward Moore and ideal utilitarianism. The chapter discusses the ideas of common sense and common-sense morality in Sidgwick. I argue that, far from aiming at overcoming common-sense morality, Sidgwick aimed purposely at grounding a consist code of morality by methods allegedly taken from the natural sciences to reach, also in ethics, the same kind of “mature” knowledge as in the natural sciences. His whole polemics with intuitionism was vitiated by the a priori assumption that the widespread ethos of the educated part of humankind, not the theories of the intuitionist philosophers, was what was worth considering as the expression of intuitionist ethics. In spite of a naïve positivist starting-point, Sidgwick was encouraged by his own approach in exploring the fruitfulness of coherentist methods for normative ethics. Thus, Sidgwick left an ambivalent legacy to twentieth-century ethics: the dogmatic idea of a “new” morality of a consequentialist kind, and the fruitful idea that we can argue rationally in normative ethics albeit without shared foundations. Then it reconstructs the background of ideas, concerns and intentions out of which Moore’s early essays, the preliminary version, and then the final version of Principia Ethica originated. I stress the role of religious concerns, as well as that of the Idealist legacy. I argue that PE is more a patchwork of rather diverging contributions than a unitary work, not to say the paradigm of a new school in Ethics. I add a comparison with Rashdall’s almost contemporary ethical work, suggesting that the latter defends the same general claims in a different way, one that manages to pave decisive objections in a more plausible way. I end by suggesting that the emergence of Analytic Ethics was a more ambiguous phenomenon than the received view would make us believe, and that the wheat (or some other gluten-free grain) of this tradition, that is, what logic can do for philosophy, should be separated from the chaff, that is, the confused and mutually incompatible legacies of Utilitarianism and Idealism. -/- 23. Edmund Husserl and the a-priori of action. The chapter illustrates first the idea of phenomenology and the Husserl’s project of a phenomenological ethic as illustrated in his 1908-1914 lectures. The key idea is dismissing psychology and trying to ground a new science of the a priori of action, within which a more restricted field of inquiry will be the science of right actions. Then the chapter illustrates the criticism of modern moral philosophy carried out in the 1920 lectures, where the main target is naturalism, understood in the Kantian meaning of primacy of common sense. The third point illustrate is Adolph Reinach’s theory of social acts as a key the grounding of norms, a view that basically sketches the very ideas ‘discovered’ later by Clarence I. Lewis, John Searle, Karl-Otto Apel and Jürgen Habermas. A final section is dedicated to Nicolai Hartman, who always refused to define himself a phenomenologist and yet developed a more articulated and detailed theory of ‘values’ – with surprising affinities with George E. Moore - than philosophers such as Max Scheler who claimed to Husserl’s legitimate heirs. -/- 24. Bertrand Russell and non-cognitivism. The chapter reconstructs first the discussion after Moore. The naturalistic-fallacy argument was widely accepted but twisted to prove instead that the intuitive character of the definition of ‘good’, its non-cognitive meaning, in a first phase identified with ‘emotive’ meaning. Alfred Julius Ayer is indicated as a typical proponent of such non-cognitivist meta-ethics. More detailed discussion is dedicated to Bertrand Russell’s ethics, a more nuanced and sophisticated doctrine, arguing that non-cognitivism does not condemn morality to arbitrariness and that the project of a rational normative ethics is still possible, heading finally to the justification of a kind of non-hedonist utilitarianism. Stevenson’s theory, another moderate version of emotivism is discussed at some length, showing how the author comes close to the discovery of the role of a pragmatic dimension of language as a basis for ethical argument. Last of all, the discussion from the Forties about Hume’s law is described, mentioning Karl Popper’s argument and Richard Hare’s early non-cognitivist but non-emotivist doctrine named prescriptivism. -/- 25. Elizabeth Anscombe and the revival of virtue ethics. The chapter discusses the three theses defended by Anscombe in 'Modern Moral Philosophy'. I argue that: a) her answer to the question "why should I be moral?" requires a solution of the problem of theodicy, and ignores any attempts to save the moral point of view without recourse to divine retribution; b) her notion of divine law is an odd one more neo-Augustinian than Biblical or Scholastic; c) her image of Kantian ethics and intuitionism is the impoverished image manufactured by consequentialist opponents for polemical purposes and that she seems strangely accept it; d) the difficulty of identifying the "relevant descriptions" of acts is not an argument in favour of an ethics of virtue and against consequentialism or Kantian ethics, and indeed the role of judgment in the latter is a response to the difficulties raised by the case of judgment concerning future action. A short look at further developments in the neo-naturalist current is given trough a reconstruction of Philippa Foot’s and Peter Geach’s critiques to the naturalist-fallacy argument and Alasdair MacIntyre’s grand reconstruction of the origins and allegedly unavoidable failure of the Enlightenment project of an autonomous ethic. -/- 26. Richard Hare and neo-Utilitarianism. The chapter addresses the issue of the complex process of self-transformation Utilitarianism underwent after Sidgwick’s and Moore’s fatal criticism and the unexpected Phoenix-like process of rebirth of a doctrine definitely refuted. A glimpse at this uproarious process is given through two examples. The first is Roy Harrod Wittgensteinian transformation of Utilitarianism in pure normative ethics depurated from hedonism as well as from whatsoever theory of the good. This results in preference utilitarianism combined with a ‘Kantian’ version of rule utilitarianism. The second is Richard Hare’s two-level preference utilitarianism where act utilitarianism plays the function of eventual rational justification of moral judgments and rule-utilitarianism that of action-guiding practical device. -/- 27. Hans-Georg Gadamer and rehabilitation of practical philosophy. The post-war rediscovery of ethics by many German thinkers and its culmination in the Sixties in the movement named ‘Rehabilitation of practical philosophy’ is described. Among the actors of such rehabilitation there were a few of Heidegger’s most brilliant disciples, and Hans-Georg Gadamer is chosen as a paradigmatic example. His reading of Aristotle’s lesson I reconstructed, starting with Heidegger’s lesson but then subtly subverting its outcome thanks to the recovery of the central role of the notion of phronesis. -/- 28. Karl-Otto Apel and the revival of Kantian ethics. Parallel to the neo-Aristotelian trend, there was in the Rehabilitation of practical philosophy a Kantian current. This started, instead than the rehabilitation of prudence, with the discovery of the pragmatic dimension of language carried out by Charles Peirce and the Oxford linguistic philosophy. On this basis, Karl-Otto Apel singled out as the decisive proponent of the linguistic and Kantian turn in German-speaking ethics, worked out the performative-contradiction argument while claiming that this was able to provide a new rational and universal basis for normative ethics. An examination of his argument is some detail is offered, followed by a more cursory reconstruction of Jürgen Habermas’s elaboration on Apel’s theory. -/- 29. John Rawls and public ethics as applied ethics. Rawls’s distinction between a “political” and a “metaphysical” approach to one central part of ethical theory, namely the theory of justice, is interpreted as a formulation of the same basic idea at the root of both the principles approach and neo-casuistry, both discussed in the following chapter, namely that it is possible to reach an agreement concerning positive moral judgments even though the discussion is still open – and in Rawls’ view never will be close – on the basic criteria for judgment. -/- 30. Beauchamp and Childress and bioethics as applied ethics. The chapter presents the revolution of applied ethics while stressing its methodological novelty, exemplified primarily by Beauchamp and Childress principles approach and then by Jonsen and Toulmin’s new casuistry. -/- . (shrink)

This book proposes a new model of professional ethics enabling lawyers to advise clients upon both the law and ethics. This will better protect clients, and society, and enhance lawyers' professional obligations. The current model of legal ethics, developed in the 19th century, specified that the role of lawyers was only to interpret the law, not also to give ethical advice. This was acceptable to lawyers, clients, and society at that time. However, this is not (...) the case now and legal ethics no longer reflects the needs of modern legal practice. This book draws on moral philosophy to present a new model of legal of ethics that explains the analytical process to include ethical advice. It analyses the potential harm of the present model to the legal profession who have duties to the law and justice that may compete with demands by clients to serve them. Further, lawyers' duty to clients to act in their best interests is sometimes not adequately fulfilled as legal ethics does not permit lawyers to give ethical advice even if it may be in clients' best interests to do so. The work includes a detailed case study of corporate law practice to show why a new legal ethics is required. Other case examples are provided to demonstrate that lawyers practicing in all areas of law encounter ethical issues and they too will benefit from a new legal ethics. The book will be essential reading for students, academics, lawyers and professional bodies. (shrink)

In “How Art Teaches: A Lesson from Goodman”, Markus Lammenranta inquires if and how artworks can convey propositional knowledge about the world. Lammenranta argues that the cognitive role of art can be explained by revising Nelson Goodman’s theory of symbols. According to Lammenranta, the problem of Goodman’s theory is that, despite providing an account of art’s symbolic function, it denies art the possibility of mediating propositional knowledge. Lammenranta claims that Goodman’s theory can be augmented by enlarging it with an (...) account of direct reference developed by Bertrand Russell and contemporary philosophy of language. On this basis, an expanded version of Goodman’s theory can explain how artworks can express propositions even without being linguistic, representational, or non-fictive. Lammenranta explicates his theory by explaining how abstract paintings and literary fictions can mediate propositional claims about the actual, everyday world. (shrink)

This article examines five different Medical-Legal Partnerships associated with Yale Law School in New Haven, Connecticut to illustrate how MLP addresses the social determinants of poor health. These MLPs address varied and distinct health and legal needs of unique patient populations, including: 1) children; 2) immigrants; 3) formerly incarcerated individuals; 4) patients with cancer in palliative care; and 5) veterans. The article charts a research agenda to create the evidence base for quality and evaluation metrics, capacity building, sustainability, (...) and best practices; it also focuses specifically on a research agenda that identifies the value of the lawyers in MLP. Such a focus on the “L” has been lacking and is overdue. (shrink)

Independence as a professional virtue is included amongst the core ethical principles governing lawyers yet its precise meaning remains elusive. This article aims to examine the meaning of lawyer independence in criminal proceedings by taking as its focus the situation of criminal defence lawyers in China. The problem of lack of independence from the state is analysed against the backdrop of historical examples of extreme denial of independence such as Germany under National Socialism, South Africa under apartheid (...) and the Soviet Union. The associated issue of independence from the client is then addressed with a view to assessing where the balance of relative independence should lie. It is suggested that excessive dependence on the state, as it is experienced in China, may have the effect either of driving criminal defence lawyers towards exactly the type of human rights advocacy that the state has taken action to suppress, or of chasing them away from a career in criminal law at a time when change is underway and experienced criminal defence lawyers are most needed. The balance is therefore upset on many levels and restoring independence so as to allow lawyers the professional freedom to fulfil their role may ultimately be in the interests both of the state and lawyers working in the area of criminal justice. (shrink)

Is there an international human right to a lawyer? This paper answers yes, exploring the philosophical basis for that answer, and drawing out implications for the legal profession. Borrowing from, and modifying, Henry Shue's pioneering work, the paper analyses a human right as a claim-right by individuals to social guarantees against standard threats. Access to legal representation is one of those social guarantees, and is essential in rule-of-law societies. That is because of the multitudinous advantages that access (...) to legal institutions provides, systematic deprivation of which violates human dignity. Lawyers are essential to providing that access. The paper argues that lawyers have a special obligation to provide that access; the argument is based on a trusteeship model of law, in which the political community viewed collectively creates a good for the benefit of its individual members, and lawyers are the fiduciary agents of the political community. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Notes and Fragments ENJOYING NEGATIVE EMOTIONS IN FICTIONS by John Morreall There is a puzzle going back to Aristotle and Augustine that has sometimes been called the "paradox of tragedy": how is it that nonmasochistic, nonsadistic people are able to enjoy watching or reading about fictional situations which are filled with suffering? The problem here actually extends beyond tragedy to our enjoyment of horror films and other fictional (...) depictions of situations which we would not enjoy in real life. What is it about fiction that turns intensely unpleasant situations into situations we can enjoy? Ofthe many solutions proposed to this puzzle, I shall mentionjust four. Aristotle held that in viewing tragedy we experience negative emotions — pity and fear — but get pleasure from the experience nonetheless because we are thereby purged of excess pity and fear. For Aristotle, too, there is a pleasure which tragedy shares with fiction in general, the delight we take in representations.1 Hume put more weight on this latter delight. Our pleasure in tragedy, he said, is based on our appreciation of the skill with which the literary or other artist has depicted the unpleasant scenes.2 Susan Feagin has recently located the pleasure we take in tragic art not in our direct responses to the work, which are "unpleasant experiences," she says, but in our meta-response of moral self-congratulation at these responses.3 The fourth solution to our puzzle is really a dissolution: it consists of denying that we actually feel fear, pity, and other negative emotions in our experience of fiction. The guiding principle here is that in order to have some emotion toward a situation, we must believe that it is a real situation. This principle is articulated in an influential article by Kendall Walton, though he does not apply it to our puzzle.4 95 96Philosophy and Literature I believe that this last solution is no solution at all because we do in fact feel emotions in our appreciation of fiction (a point I will develop later). The other three solutions above address the puzzle, and the pleasures they appeal to all have some explanatory power. But these solutions seem to me to overlook perhaps the most basic pleasure we take in tragedy, horror films, and the like — the direct pleasure of feeling (ear, pity, and similar emotions. The idea of enjoying negative emotions seems counterintuitive at first; indeed it may seem analytically false. But let us look more closely at those emotions to see what there might be to enjoy in them. Because the idea that we experience real emotions in response to fiction is controversial, we will begin not with fiction but with real life. After seeing how negative emotions can be enjoyed in real life, we can then consider their enjoyment in response to fiction. Fear is perhaps the most basic negative emotion, and at first glance one of the least likely to be enjoyed. To feel fear, many have claimed, we have tojudge that we are in danger, and danger is disturbing to us. And so it is natural that in fear there is the motivation to eliminate the danger, by fleeing, protecting ourselves, or attacking. Changes in the autonomic nervous system and the endocrine system equip us forjust such actions. They produce an increase in alertness and muscle tension, a faster and stronger heartbeat, a redistribution of the blood from the skin and internal organs to the voluntary muscles and brain, and a release of stored sugar from the liver into the bloodstream. Now although we may not be able to identify all these changes when we are in a state of fear, we can feel many of them directly, and we certainly feel the overall excitement which they produce. It is this excitement, I think, that makes fear potentially enjoyable. Especially for someone who leads a relatively dull life, the stimulation provided by fear can be pleasurable by contrast with the ordinary lack of stimulation. Many people, indeed, go to considerable trouble to put themselves into dangerous situations, in part, at least, for the thrill of fear that the danger will provide. Consider mountain climbers and skydivers, for instance. Now there are many sources... (shrink)

The concept of social justice is making a revival in nursing scholarship, in part in response to widening health inequalities and inequities in high‐income countries. In particular, critical nurse scholars have sought to develop participatory research methods using peer researchers to represent the ‘voice’ of people who are living in marginalized spaces in society. The aim of this paper is to report on the experiences of nurse and peer researchers as part of a project to explore the experiences of people (...) who find themselves destitute following the asylum process in the UK. In seeking to explore social injustice, three challenges are identified: lack of a robust political theory, institutional/professional constraints and an absence of skills to engage with the politics of social (in)justice. Each challenge is presented, opposing voices outlined and some possible solutions are suggested. The work of political theorist Nancy Fraser is used as a conceptual framework, in particular her focus on mis/framing and political representation for social justice. In addition, it is suggested that social justice needs to be further embedded in nursing policy and curriculum. Finally, nurses are encouraged to develop practical political skills to engage with both politics and the media in a neoliberal globalizing world. (shrink)

In the current pandemic situation, psychological science is increasingly considered by public health policy. Empathy is mainly recognized as a crucial drive for prosocial behavior. However, this rich body of evidence still lacks visibility and implementation. Effective social programs are needed, and little is known about how to elicit empathetic drives. The paper gives first a clear foundation to the role of empathy during stressful events. It provides then a comprehensive overview of innovative interventions triggering empathic response in the public (...) such as fiction, film, and theater. Moreover, it integrates interactive ways of sharing personal views that could elicit empathetic feelings in different people. Advances deriving from this perspective could be of significant public interest in the current and future health crises and help authorities develop innovative social programs, which should be the focus of further scientific inquiry. (shrink)

This concluding essay offers reflections on core components of the faculty fellowship program, its outcomes and results, and program design and administration. Amid the current calls for reform in legal and other professional education, the lessons we learned and perspectives we gained during this fellowship program may be relevant to any faculty members and university administrations that are seeking to create more effective and engaged professional and graduate school programs, whatever may be their subject-matter discipline.

The upstream framework presented in public health and medicine considers health problems from a preventive perspective, seeking to understand and address the root causes of poor health. Medical-legal partnerships (MLPs) have demonstrated the value of this upstream framework in the practice of law and engage in upstream lawyering by utilizing systemic advocacy to address root causes of injustices and health inequities. This article explores upstreaming and its use by MLPs in reframing legal practice.

In the recent spate of philosophers' writing on legal ethics, most contend that lawyers' professional role exposes them to great risk of moral wrongdoing; and some even conclude that the role's demands inevitably corrupt lawyers' characters. In assessing their arguments, I take up three questions: (1) whether philosophers' training and experience give them authority to scold lawyers; (2) whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart; (...) and (3) whether lawyers ought to defer to philosophers' claims about moral principle. I return a negative answer to each. (shrink)

For more than a decade, American lawyers have bewailed the ethical crisis in their profession, wringing their hands about its bad image. But their response has been limited to spending money on public relations, mandating education, and endlessly revising ethical rules. In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems illustrated by the six disciplinary case studies featured in this book unless the legal monopoly enjoyed by attorneys in (...) the U.S. is drastically contracted. Richard Abel examines some of the most common ethical complaints made about lawyers in Lawyers in the Dock. Using detailed records of disciplinary proceedings, he describes the actions surrounding certain cases based on three of the most common complaints: neglecting the client by failing to pursue cases diligently; overcharging of clients by mystifying billing practices; and betraying adversaries and courts out of excessive loyalty to clients or causes. In this book, Richard Abel will argue that these measures will do little or nothing to solve the problems exposed by his six disciplinary case studies unless structural changes are made to the legal monopoly in order to restore the public trust in lawyers. Lawyers in the Dock is essential reading for lawyers, law students, and potential clients who wish to restore trust and professional responsibility in the legal profession. (shrink)

The adversarial legal system is traditionally praised for its normative appeal: it protects individual rights; ensures an equal, impartial, and consistent application of the law; and, most importantly, its competitive structure facilitates the discovery of truth – both in terms of the facts, and in terms of the correct interpretation of the law. At the same time, legal representation is allocated as a commodity, bought and sold in the market: the more one pays, the better legal representation (...) one gets. In this article, I argue that the integration of a market in legal representation with the adversarial system undercuts the very normative justifications on which the system is based. Furthermore, I argue that there are two implicit conditions, which are currently unmet, but are required for the standard justifications to hold: that there is (equal opportunity for) equality of legal representation between parties, and that each party has (equal opportunity for) a sufficient level of legal representation. I, therefore, outline an ideal proposal for reform that would satisfy these conditions. (shrink)

Major changes have taken place in Muslim societies in general during the last decades. Traditional family and social organizational structures have come into conflict with the perceptions and needs of development and modern state-building. Moreover, the international context of globalization, as well as changes in intercommunity relations through immigration, have also deeply affected social and cultural mutations by facilitating contact between different cultures and civilizations. Of the dilemmas arising from these changes, those concerning women’s and men’s roles were the (...) most conflictive issues because of different interpretations and evaluations of historical, religious and/or cultural heritages. In the case of Morocco, for over 30 years, women’s and human rights NGOs have acted and advocated to promote women’s rights. The main disputes have concerned the distinction between what is within the requirements of Islam and what is the consequence of traditional social beliefs and practices. This ended nevertheless with the adoption by the Parliament of a new Family Law proclaimed in February 2004. This law was the result of a process of consultation and national debate, which made possible substantial progress in terms of proclaimed values of equality of rights between men and women, with the support of most national political and social leaders. Several lessons can be learned from the Moroccan experience. The crucial role of civil society, the political support of the state at its highest level, the working methodology of the Royal Advisory Commission and the final process for the adoption of the new code were from the most determinant parameters. In light of recent developments in some majority-Muslim countries, the future of women’s rights is a key issue of the so-called Arab spring. Muslim women’s challenges and struggles are not only ideological and legal battles, but they are also social and political struggles for which one of the major conditions is to prevent and prohibit the use of Islam as a political instrument. Muslim societies need to educate people properly and change their traditional representations and patterns of thought. To promote justice, equity and equality in general, as well as to protect women’s economic rights, they need appropriate economic and social policies. Then women can really promote, protect and benefit from the advances of their legal status. (shrink)

The Health in All Policies approach aims to integrate health into decisions across sectors to address the social determinants of health and enhance health equity. Jurisdictions interested in implementing this approach may seek clarification about how to operationalize it. Public health legal preparedness provides useful lessons for HiAP. While there are important differences between these two areas, there are also critical similarities. These similarities are particularly important because HiAP and public health preparedness are complementary. Law has been essential (...) in advancing public health preparedness by helping to: prioritize planning; allocate responsibility; enhance collaboration and coordination; establish responsive funding; and emphasize the needs of vulnerable populations. Law can be used similarly to advance HiAP. (shrink)

Vaccine mandates played a critical role in the success of New York City’s COVID-19 response. By relying on evidence as a substantive basis for the mandates and adhering to procedural requirements and precedent, New York City leveraged its position and expertise as a local governmental authority to devise mandatory vaccine policies that withstood numerous legal challenges. New York City’s experience highlights the role of municipal government in mounting a meaningful public health response, and the strategies adopted by NYC may (...) provide a blueprint for municipalities around the world facing the ongoing COVID-19 pandemic and the threat of future public health emergencies. (shrink)

ABSTRACTThis article critically examines the practice and ethical underpinnings of Collaborative Law, one of the newest processes in the ADR suite of options available to parties in dispute. CL has been described as mediation without the mediator. The parties and their lawyers agree to negotiate in good faith and in a cooperative non-adversarial manner without the assistance of a mediator. However, controversially, they also agree that if settlement is not reached, the lawyers are to withdraw and be disqualified (...) from representing the parties in any subsequent litigation. The parties must engage new lawyers and often new expert witnesses if they wish to proceed with litigation. In this article, the author highlights the potential for CL lawyers to exert undue pressure on their clients as the goal of settlement is given priority over the interests of the clients. The article describes the main features of CL, its contractual supports, its potential benefits and the potential for its abuse. (shrink)

This article explores evolutionary debunking arguments as they arise in metaethics against moral realism and in philosophy of religion against naturalism. Both literatures have independently grappled with the question of which beliefs one may use to respond to a potential defeater. In this article, I show how the literature on the argument against naturalism can help clarify and bring progress to the literature on moral realism with respect to this question. Of note, it will become clear that the (...) objection that the moral realist begs the question, when appealing to the truth of some of her moral beliefs, is unsuccessful. (shrink)

The paper begins with an example of the accounting treatment afforded an Indefeasible Rights Use Swap by Global Crossing. The case presents a typical example of ways in which accounting firms contributed to the ethical scandals of the early 21st century. While the behavior of Arthur Andersen, the accounting company in the case, might have met the letter of the law, we argue that it violated "the spirit of the law," which can be discovered by looking at the legitimate goals (...) of a company which give it its ethical direction and the responsibilities of the accounting professionals who serve the company and the general public. Those professional responsibilities are determined by looking at the legitimate function those professionals fulfill in the economy. A further claim is that Andersen and other accounting firms are motivated to abandon the responsibilities derived from pursuing their proper goals by falling into the trap of accumulating wealth for its own sake. We argue that the ultimate responsibility of internal auditors is to develop statements that give as reasonably true and fair a picture of the financial situation to any user having a claim to that knowledge. Further we argue that the major responsibilities of the external auditor are: first, to be responsible to the using public for evaluating financial statements and declaring that they represent a fair picture of the financial situation of a company, and second, to be a watchdog of financial markets and call into question irregular practices that would distort those pictures. Such due professional care requires the auditor to exercise "professional skepticism": an attitude that includes a questioning mind and a critical assessment of audit evidence. The paper concludes by giving particular examples of how Arthur Andersen LLP failed to meet those responsibilities. (shrink)

Photo ID 71252867© Stepan Popov| Dreamstime.com Abstract While Medical Assistance in Dying (MAiD) has been legalized in Canada since 2016, it still excludes eligibility for persons who have mental illness as a sole underlying medical condition. This temporary exclusion was set to expire on March 17th, 2024, but was set 3 years further back by the Government of Canada to March 17th, 2027. This paper presents a critical appraisal of the case of MAiD for individuals with mental illness as the (...) sole underlying medical condition through the analysis of three ethical theories: principlism, deontology, and utilitarianism. Through evidence and discussion, it will be demonstrated that MAiD, in this context, may be ethically justifiable on the grounds of upholding human rights, protecting dignity, and minimizing suffering. Introduction In June of 2016, Medical Assistance in Dying (MAiD) was legalized in Canada.[1] Throughout the first six years, a temporary exclusion of eligibility for persons suffering solely from mental illness was extended.[2] The exclusion of mental illness as a sole underlying medical condition was set to expire on March 17, 2024.[3] However, on February 1, 2024, just over a month before the set expiration, the Government of Canada once again extended the exclusion, this time setting it back three years to March 17, 2027. There are currently several countries that allow MAiD for mental illness, including Belgium, the Netherlands, and Luxembourg.[4] Some countries, like Spain,[5] do not give specific guidance, leaving the matter under discussion by ethicists and courts. In these countries, there are specific (although different) requirements for the process; overall, for mental illness, the illness must be verifiable and not simply related to a perception of satisfaction with the length of life. This extension ignited discussion on whether MAiD for persons who have mental illness as a sole underlying medical condition in Canada is ethically acceptable. As a complex, multi-faceted, and interdisciplinary issue, ethicists assessing MAiD must take into account various moral obligations and considerations. This paper analyses MAiD in this context through the application of three ethical theories: principlism, deontology, and utilitarianism. This paper concludes that, based on the current evidence and knowledge of this developing situation, MAiD for persons with mental illness in Canada may be ethically justified on the grounds of upholding human rights, labour obligations, and dignity. Through the exploration of research and discussions, it will be demonstrated that society at large ought to protect liberty and act towards relieving suffering, thereby supporting the potential eligibility of MAiD for persons who have mental illness. Principlism: The Capacity and Ability to Assess and Decide for One’s Own Life Principlism is the application of four principles: autonomy, beneficence, non-maleficence, and justice. Principlism supports permitting MAiD for mental illness due to the importance of autonomy in decision-making, equitable and just practices for MAiD assessors, and reducing suffering for patients and their family member(s) and/or friend(s). Carter v. Canada, the Canadian Supreme Court ruling of 2015—which changed Canadian law to allow for MAiD—held that the prohibition of MAiD infringed on Canadians’ right to “life, liberty, and the security of the person.” In a unanimous decision, the Supreme Court of Canada decided that the criminal prohibition of MAiD violates the Canadian Charter of Rights and Freedoms.[6] The Court concluded that the criminal law prohibiting MAiD interfered with people’s autonomy and dignity, which are protected by the rights of liberty and security of the person.[7] The ruling emphasized that Canada’s constitution reflects the fundamental importance of individual autonomy in personal decision-making. Research provides evidence that MAiD improves autonomy: A study among psychiatric patients found that 8 of 48 psychiatric patients said the mere option of accessing MAiD was enough to assess their future options for living wholly.[8] These findings complement a study entailing interviews with 30 adults who have mental illness, which emphasized that the ability to access MAiD allows individuals to analyze their quality of life, envision their desired future, and make decisions accordingly.[9] Although not all participants agreed that mental illness as the only underlying medical condition was appropriate for MAiD eligibility, many participants agreed that patient autonomy in decision-making was paramount and should be respected. However, autonomy as an ethical principle does not immediately grant all persons with mental illness the option to access MAiD. There are multiple eligibility criteria for those who wish to receive MAiD, which still must be approved and assessed. Currently, eligibility criteria for MAiD states that individuals must “give informed consent to receive MAiD, meaning that the person has consented to receiving MAiD after they have received all information needed to make this decision.”[10] Consent requires capability or capacity, which is the ability to understand relevant information, appreciate its potential consequences, and make an informed decision for oneself.[11] Like for many other diseases, disabilities, and conditions, patient capability is determined on a case-by-case basis.[12] Given the stigma surrounding those struggling with mental health, this thorough case-by-case examination of an individual patient’s capability and capacity without prejudice or partiality should lead to equitable and fair treatment. Without appropriate testing, those with mental illness could be wrongly stripped of their decision-making power. Arguments against MAiD for those with mental illness have raised concerns about the potential for individuals to harm themselves and others. A survey of MAiD providers demonstrated that physicians believed that the bereavement experience following MAiD is challenging and profoundly distinct and that bereavement support for all members involved should be required.[13] However, while watching one die (of MAiD) may cause harm to their families, friends, and support system at large, it is also important to recognize that watching someone suffer and struggle through their mental health journey also poses significant harm. Qualitative studies in Ontario, Canada, have interviewed family members of persons with mental illness as a sole medical condition, and interviewees shared that witnessing the illness and its impacts on their close one's lives was a very difficult experience.[14] As it relates to MAiD, participants emphasized that those living with mental illness are in the best position to understand their own pain and suffering and, in turn, make their own decisions about relief.[15] In an interview, a MAiD provider stated that MAiD may provide less suffering and more peace, and that, although it “depends on the family,... usually the family is more prepared and at peace.”[16] On the contrary, a person who has mental illness may perceive choosing MAiD as beneficial to their family member(s) and/or friend(s). Among those who died by MAiD in 2021, 35.7 percent reported that they perceived themselves as a burden on their family and friends.[17] While some authors report their concerns regarding such social burden as a potential driving factor for MAiD requests, others report that there are other additional burdens associated with requesting MAiD that may be financial, societal, and personal.[18] As such, the extension of MAiD eligibility to those with mental illness will likely only allow a small number of people to be granted MAiD.[19] Many others will be diverted to appropriate services and treatments. Patients’ decision to choose MAID noted their ability to make choices about their own care, reflecting the value of autonomy.[20] Although it is difficult to determine what is good for families in individual cases, MAiD presents an option that is both beneficent and non-maleficent. Therefore, these arguments satisfy the principles which do not necessarily conflict with MAiD. Deontology: The Duty to Recognize Vulnerability and Relieve Suffering The argument here begins with the fundamental focus of deontology—that moral duty lies in an action rather than in its consequences. Further discussion is required to analyze the impact of MAiD on healthcare workers. The Canadian Medical Association (CMA) Code of Ethics and Professionalism requires physicians to abide by virtues, commitments, and responsibilities in delivering health care and service.[21] The code states that “a compassionate physician recognizes suffering and vulnerability, … and alleviate[s] the patient’s suffering.”[22] In the context of MAiD for persons with mental illness as a sole underlying medical condition, vulnerabilities could be wide in range. Many Canadians are concerned with the interaction between mental health and other social determinants of health, such as the lack of medical, disability, financial, housing, and social support and resources.[23] As a result, another layer to the ethical issue arises: Does permitting MAiD for mental illness treat the symptoms of the issue rather than the root problem itself (social, economic, and systemic inequities)? Some argue against MAiD, stating that the nation should first focus on developing better quality care and service.[24] Others support MAiD as a potential harm reduction approach, given that most of these unjust conditions require a higher level of long-term structural and public policy overhaul.[25] The CMA Code also calls upon physicians to recognize and alleviate patients’ suffering. Some argue that while physicians and medical professionals do work to relieve suffering, they are trained to do so through a primary care-based diagnose-and-treat approach.[26] Studies that have captured Canadian physicians’ experiences providing MAiD report that, although physicians stated that the work was rewarding, it came with many challenges, including strained relationships with coworkers, increased workload, and inadequate compensation.[27] Physicians report that a part of the problem is that MAiD rules are written by lawyers and experts who are removed from its reality in medical practice. As a result, there is a lack of clarity surrounding practice norms and a lack of support for physicians.[28] Thus, while healthcare practitioners have a duty to relieve patients’ suffering, they should feel adequately trained and supported in doing so. If physicians and healthcare professionals recognize vulnerability and relieve suffering, then they should act accordingly, regardless of potential associations or outcomes. Making persons with mental illness eligible for MAiD ensures that treatment to relieve their suffering is available. However, it is imperative that there are sufficient resources and support available to healthcare professionals to ensure that they feel prepared and supported to provide MAiD, should they wish to do so. Utilitarianism: Minimizing Intolerable Suffering and Dying with Dignity Overall, utilitarianism is largely concerned with the greatest happiness principle—to increase the amount of happiness for the greatest number of people. So far, this paper has analyzed individual, family, and practitioner-based ethical considerations. But if MAiD were to be extended to those with mental illness as a singular underlying medical condition, what implications would this have for the world and society at large? There is a global drive toward authorizing organized ending of life, with an increasing number of countries legalizing MAiD.[29] The medical system is generally seen as a safe and appropriate system to carry out MAiD, especially when suicide and self-harm are regarded as “alternatives.” Yet despite these worldwide efforts, many argue through the theory of utilitarianism that the inability to see long-term consequences renders MAiD a premature solution, particularly for those who are unable or unwilling to seek other forms of potentially healing treatment or for those who may undergo MAiD only for a technological innovation or biomedical advancement to later come along as a potential cure.[30] While it is true that MAiD does not prevent these “premature deaths,” it is also true that it does not claim to.[31] MAiD provides an option to alleviate intolerable suffering. Some individuals with severe mental illness do describe their condition as intolerable suffering. MAiD is seen as an option to minimize suffering. It can also be seen as a way to die with dignity and relief.[32] While predicting outcomes is difficult, extending MAiD eligibility for persons experiencing mental illness does not undermine its ability to end suffering. It allows eligible individuals to take charge of their health, their life, and their future. Conclusion Based on the current evidence, allowing MAiD for persons with mental illness as their sole underlying medical condition presents as an ethically justifiable action. The right to self-determination and fair accessibility demonstrates that there is more harm done by prohibiting MAiD for mental illness than allowing it. Such liberty is a right, and in the context of relieving suffering, it is a duty that healthcare workers must uphold, although the ability to opt out of providing MAiD is well established. Thus, to recognize vulnerability and relieve suffering means to provide methods, such as MAiD, for those deeply impacted by mental illness. These justifications stand at both the individual level and for society at large. Nevertheless, it remains imperative to take an upstream approach that addresses the social determinants of health and aims to prevent mental illness and promote long-term, beneficial social change for those suffering, struggling, and vulnerable in our communities. - [1] Jaro Kotalik and David W. Shannon, Medical Assistance in Dying (MAID) in Canada Key Multidisciplinary Perspectives, 1st ed. 2023., The International Library of Bioethics, 104 (Cham: Springer International Publishing, 2023), https://doi.org/10.1007/978-3-031-30002-8. [2] Department of Justice Government of Canada, “Canada’s Medical Assistance in Dying (MAID) Law,” February 21, 2024, https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html. [3] Health Canada, “Final Report of the Expert Panel on MAiD and Mental Illness,” transparency - other, May 13, 2022, https://www.canada.ca/en/health-canada/corporate/about-health-canada/public-engagement/external-advi sory-bodies/expert-panel-maid-mental-illness/final-report-expert-panel-maid-mental-illness.html. [4] Federal Public Service (FPS) Health Belgium, “Federal Commission for the Control and Evaluation of Euthanasia,” n.d., https://consultativebodies.health.belgium.be/en/advisory-and-consultative-bodies/federal-commission- control-and-evaluation-euthanasia.; Government of Netherlands, “Is Euthanasia Allowed in the Netherlands?,” n.d., https://www.government.nl/topics/euthanasia/is-euthanasia-allowed.; “Information on Requesting Euthanasia or Assisted Suicide,” n.d., https://guichet.public.lu/en/citoyens/sante/fin-vie/euthanasie/euthanasie-assistance-suicide.html. [5] Luis Espericueta, First official report on euthanasia in Spain: A comparison with the Canadian and New Zealand experiences, Medicina Clínica (English Edition), Volume 161, Issue 10, 2023, Pages 445-447, ISSN 2387-0206, https://doi.org/10.1016/j.medcle.2023.06.021. [6] Government of Canada, “The Canadian Charter of Rights and Freedoms,” March 15, 2021, https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/. [7] Supreme Court of Canada, “Carter v. Canada,” Constitutional Law, 2015, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do.; Kotalik and Shannon, Medical Assistance in Dying (MAID) in Canada Key Multidisciplinary Perspectives. [8] Karandeep Sonu Gaind, “What Does ‘Irremediability’ in Mental Illness Mean?,” Canadian Journal of Psychiatry. Revue Canadienne de Psychiatrie 65, no. 9 (September 2020): 604–6, https://doi.org/10.1177/0706743720928656; Lieve Thienpont et al., “Euthanasia Requests, Procedures and Outcomes for 100 Belgian Patients Suffering from Psychiatric Disorders: A Retrospective, Descriptive Study,” BMJ Open 5, no. 7 (July 27, 2015): e007454, https://doi.org/10.1136/bmjopen-2014-007454. [9] Hamer Bastidas-Bilbao et al., “Walking Alongside: Views of Family Members on Medical Assistance in Dying for Mental Illness as the Sole Underlying Medical Condition,” Qualitative Health Research 33 (September 29, 2023), https://doi.org/10.1177/10497323231197365. [10] Government of Canada, “Canada’s Medical Assistance in Dying (MAID) Law.” [11] Commission sur les soins de fin de vie, “Les conditions de l’admissibilité à l’aide médicale à mourir au Québec: la constance dans l’évolution de la loi concernant les soins de fin de vie,” June 9, 2023, https://csfv.gouv.qc.ca/ fileadmin/docs/autres_rapports/csfv_lcsfv_conditions_ amm_2023-06-29.pdf.; Trudo Lemmens, “When Death Becomes Therapy: Canada’s Troubling Normalization of Health Care Provider Ending of Life,” The American Journal of Bioethics 23, no. 11 (November 2, 2023): 79–84, https://doi.org/10.1080/15265161.2023.2265265. [12] Justine Dembo, Udo Schuklenk, and Jonathan Reggler, “‘For Their Own Good’: A Response to Popular Arguments Against Permitting Medical Assistance in Dying (MAID) Where Mental Illness Is the Sole Underlying Condition,” Canadian Journal of Psychiatry. Revue Canadienne De Psychiatrie 63, no. 7 (July 2018): 451–56, https://doi.org/10.1177/0706743718766055. [13] Konia Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” British Columbia Medical Journal 62, no. 1 (2020). [14] Bastidas-Bilbao et al., “Walking Alongside.” [15] Bastidas-Bilbao et al. [16] Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” 2020. [17] Ramona Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” Palliative & Supportive Care 21, no. 5 (October 2023): 871–78, https://doi.org/10.1017/S1478951523001025; Health Canada, “Third Annual Report on Medical Assistance in Dying in Canada 2021,” report on plans and priorities;transparency - other, July 26, 2022, https://www.canada.ca/en/health-canada/services/publications/health-system-services/annual-report-me dical-assistance-dying-2021.html; Lemmens, “When Death Becomes Therapy.” [18] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023.; Bastidas-Bilbao et al., “Walking Alongside.” [19] Olivia Stefanovich, “Opposition Parties Call for Indefinite Pause to MAID Expansion for Mental Illness | CBC News,” Canadian Broadcasting Corporation, January 28, 2024, https://www.cbc.ca/news/politics/special-joint-committee-maid-mental-illness-report-1.7095679; Benjamin Lopez Steven, “Number of Assisted Deaths Jumped More than 30 per Cent in 2022, Report Says | CBC News,” Canadian Broadcasting Corporation, October 27, 2023, https://www.cbc.ca/news/politics/maid-canada-report-2022-1.7009704. [20] Hamer Bastidas-Bilbao et al., “Searching for Relief from Suffering: A Patient-Oriented Qualitative Study on Medical Assistance in Dying for Mental Illness as the Sole Underlying Medical Condition,” Social Science & Medicine 331 (August 1, 2023): 116075, https://doi.org/10.1016/j.socscimed.2023.116075. [21] Canadian Medical Association, “Canadian Medical Association Code of Ethics and Professionalism” (Canada: Canadian Medical Association, December 8, 2018), https://policybase.cma.ca/link/policy13937. [22] Canadian Medical Association. [23] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023; Stefanovich, “Opposition Parties Call for Indefinite Pause to MAID Expansion for Mental Illness | CBC News.” [24] John Paul Tasker, “Liberal Government Promoting a ‘culture of Death’ with Medical Assistance in Dying Law, Conservative MP Says | CBC News,” Canadian Broadcasting Corporation, March 6, 2023, https://www.cbc.ca/news/politics/culture-of-death-medical-assistance-in-dying-mental-illness-1.67695 04. [25] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023; Kayla Wiebe and Amy Mullin, “Choosing Death in Unjust Conditions: Hope, Autonomy and Harm Reduction,” Journal of Medical Ethics, April 26, 2023, https://doi.org/10.1136/jme-2022-108871. [26] Ramona Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” Palliative & Supportive Care 21, no. 5 (October 2023): 871–78, https://doi.org/10.1017/S1478951523001025. [27] Konia Trouton et al., “Attitudes and Expectations Regarding Bereavement Support for Patients, Family Members, and Friends: Findings from a Survey of MAID Providers,” British Columbia Medical Journal 62, no. 1 (2020), https://bcmj.org/articles/attitudes-and-expectations-regarding-bereavement-support-patients-family-m embers-and.; William Robert Nielsen, “MAiD in Canada: Ethical Considerations in Medical Assistance in Dying,” Canadian Journal of Bioethics 4, no. 2 (December 9, 2021): 93–98, https://doi.org/10.7202/1084456ar. [28] Coelho et al., “The Realities of Medical Assistance in Dying in Canada,” October 2023. [29] Lemmens, “When Death Becomes Therapy.” [30] William Robert Nielsen, “MAiD in Canada: Ethical Considerations in Medical Assistance in Dying,” Canadian Journal of Bioethics 4, no. 2 (December 1, 2021): 93–98, https://doi.org/10.7202/1084456ar. [31] Steven, “Number of Assisted Deaths Jumped More than 30 per Cent in 2022, Report Says | CBC News.” [32] A. Plaisance et al., “Quebec Population Highly Supportive of Extending Medical Aid in Dying to Incapacitated Persons and People Suffering Only from a Mental Illness: Content Analysis of Attitudes and Representations,” Ethics, Medicine and Public Health 21 (April 1, 2022): 100759, https://doi.org/10.1016/j.jemep.2022.100759. (shrink)

The aim of this paper is twofold: first, it seeks to provide a better understanding of lawyers’ ethics in practice in the field of publicly funded asylum law. It does so by examining Dutch asylum legal aid lawyers’ moral reasoning in respect of the ethically challenging issue of ‘the hopeless case’, employing a version of Christine Parker’s four approaches to moral reasoning in legal practice: adversarial advocacy, responsible lawyering, moral activism and relational lawyering. (...) Second, it aims to demonstrate the applicability of Parker’s taxonomy, developed in a common law country (Australia), to a civil law country (The Netherlands). This paper shows, in line with what Parker argued, that lawyers may apply a combination of approaches – different ethical considerations carry different in weight in different circumstances. It provides illustrations of situations in which approaches coexist and compete and the circumstances in which one prevails over the other in the area under review. (shrink)

According to Adam Smith, vanity is a vice that contains a promise: a vain person is much more likely than a person with low self-esteem to accomplish great things. Problematic as it may be from a moral perspective, vanity makes a person more likely to succeed in business, politics and other public pursuits. “The great secret of education,” Smith writes, “is to direct vanity to proper objects:” this peculiar vice can serve as a stepping-stone to virtue. How can (...) this transformation be accomplished and what might go wrong along the way? What exactly is vanity and how does it factor into our personal and professional lives, for better and for worse? This book brings Smith’s Theory of Moral Sentiments into conversation with William Makepeace Thackeray’s Vanity Fair to offer an analysis of vanity and the objects to which it may be directed. Leading the way through the literary case study presented here is Becky Sharp, the ambitious and cunning protagonist of Thackeray’s novel. Becky is joined by a number of other 19th Century literary heroines – drawn from the novels of Jane Austen, Charlotte Brontë and George Eliot – whose feminine perspectives complement Smith’s astute observations and complicate his account of vanity. The fictional characters featured in this volume enrich and deepen our understanding of Smith’s work and disclose parts of our own experience in a fresh way, revealing the dark and at times ridiculous aspects of life in Vanity Fair, today as in the past. (shrink)

This paper explores the difficulties of implementing international human rights standards in post conflict states, particularly in Islamic States, using Afghanistan as a case study. The paper will submit that imposing international human rights law with a ‘top down' approach is ineffective, using the example of the western-style Afghan constitution which contains many human rights protections, such as freedom of religion, that cannot be realized in contemporary Afghan society. It will be argued that a more transparent, consultative and long-term approach (...) to human rights implementation should be taken in post conflict situations, if ‘human rights' is to be more than a catch phrase for membership of the international community. (shrink)

This paper is a review essay of W. Bradley Wendel's Lawyers and Fidelity to Law, part of a symposium on Wendel's book. Parts I and II aim to situate Wendel's book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel's argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence (...) in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of "the problem of role morality." In part III I note the similarity between Wendel's view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel's book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel's views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel's view, which derives from but modifies Joseph Raz's analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel's ideas about "moral remainders"—the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job. (shrink)

ABSTRACTA lawyer's behaviour derives from their own principles and values, the norms of professionalism, the professional conduct rules and the common law. In the past, much emphasis has been placed upon the first two sources as they formed the basis of self-regulation and influenced the development of legal ethics. Recently, the Australian codes of ethics explicitly detail an increasing range of duties which might reasonably have been thought to be implicit characteristics of sound ethical values and professionalism, for (...) example, a duty to be civil, and an explicit prohibition against harassment, intimidation and bullying. Such additions have been deemed necessary as a response to increasing concerns about lawyer incivility and empirical reports detailing high levels of harassment, intimidation and bullying within law firms. We suggest that the expansion of duties in the codes raises intriguing and troubling questions: Does the expansion of duties in the codes suggest that lawyers, as a group, need rules... (shrink)

Althusser delivered these lectures on Rousseau's Discourse on the Origins of Inequality at the École normale supérieure in Paris in 1972. They are fascinating for two reasons. First, they gave rise to a new generation of Rousseau scholars, attentive not just to Rousseau's ideas, but also to those of his concepts that were buried beneath metaphors or fictional situations and characters. Second, we are now discovering that the "late Althusser's" theses about aleatory materialism and the need to break with (...) the strict determinism of theories of history in order to devise a new philosophy "for Marx" were being worked out well before 1985 in this reading of Rousseau dating from twelve years earlier, which introduces into Rousseau's text the ideas of the void, the accident, the take, and the necessity of contingency. (shrink)

The author discusses the thesis proposed by H. Hazlitt that jurisprudence has developed such methods and principles of solving legal problems that could also serve as a guide in solving ethical problems. The article critically reviews the reasoning behind this thesis made by H. Hazlitt and L. Yeager. A special attention is paid to the influence of J. Bentham’s utilitarian ideas on the formation of Hazlitt’s conception. Not being a lawyer, Hazlitt in the work The Foundations of Morality argued (...) that the law affects morality. In Hazlitt’s ethical theory judicial precedents affect the formation of moral rules. Hazlitt compares the formation of general rules in the sphere of morality and law. Using the formula of evaluation of moral rules proposed by Hazlitt, situations should be considered from three positions: subject of action, object of action, and impartial observer. Even though Yeager develops the ideas of Hazlitt, the former uses different arguments to substantiate the main thesis. Yeager believes that the laws have to declare the norms of morality. However, the arguments of Hazlitt and Yeager should be considered critically, as some researchers have done. As an additional argument to support the article’s main thesis, it is proposed to use the mechanism of conciliation procedures as a model for solving ethical problems. The article concludes that the thesis proposed by Hazlitt is valid but requires further reasoning and research by the philosophers of law. (shrink)

A definition of [George] Eliot as renunciatory culture-mother may seem an odd preface to a discussion of Silas Marner since, of all her novels, this richly constructed work is the one in which the empty pack of daughterhood appears fullest, the honey of femininity most unpunished. I want to argue, however, that this “legendary tale,” whose status as a schoolroom classic makes it almost as much a textbook as a novel, examines the relationship between woman’s fate and the structure of (...) society in order to explicate the meaning of the empty pack of daughterhood. More specifically, this story of an adoptive father, an orphan daughter, and a dead mother broods on events that are actually or symbolically situated on the margins or boundaries of society, where culture must enter into a dialectical struggle with nature, in order to show how the young female human animal is converted into the human daughter, wife, and mother. Finally, then, this fictionalized “daughteronomy” becomes a female myth of origin narrated by a severe literary mother uses the vehicle of a half-allegorical family romance to urge acquiescence in the law of the Father.If Silas Marner is not obviously a story about the empty pack of daughterhood, it is plainly, of course, a “legendary tale” about a wanderer with a heavy yet empty pack. In fact, it is through the image of the packman that the story, in Eliot’s own words, “came across my other plans by a sudden inspiration”—and, clearly, her vision of this burdened outsider is a re-vision of the Romantic wanderer who haunts the borders of society, seeking a local habitation and a name.11 I would argue further, though, that Eliot’s depiction of Silas Marner’s alienation begins to explain Ruby Redinger’s sense that the author of this “fluid and metaphoric” story “is” both Eppie, the redemptive daughter, and Silas, the redeemed father. For in examining the outcast weaver’s marginality, this novelist of the “hidden life” examines also her own female disinheritance and marginality.12 11. Eliot to Blackwood, 12 Jan. 1861, quoted in Ruby V. Redinger, George Eliot: The Emergent Self , p. 436. As Susan Garber has suggested to me, the resonant image of the “packman” may be associated with the figure of Bob Jakin in The Mill on the Floss , the itinerant pack-bearing peddler who brings Maggie Tulliver a number of books, the most crucial of which is Tomas à Kempis’ treatise on Christian renunciation .12. Rediner, George Eliot, p. 439; Eliot, “Finale,” Middlemarch, p. 896. Sandra M. Gilbert, now professor of English at the University of California, Davis, will join the Department of English at Princeton University in fall 1985. Her most recent works include a collection of poems, Emily’s Bread , and, coedited with Susan Gubar, The Norton Anthology of Literature by Women: The Tradition in English . In addition, she is at work on Mother Rites: Studies in Literature and Maternity, a project from which “Life’s Empty Pack” is drawn, and, with Susan Gubar, on No Man’s Land: The Place of the Woman Writer in the Twentieth Century, a sequel to their collaborative Madwoman in the Attic: The Woman Writer and the Nineteenth-Century Literary Imagination . “Costumes of the Mind: Transvestitism as Metaphor in Modern Literature” appeared in the Winter 1980 issue of Critical Inquiry. (shrink)

Philosophers should not be put off by the preconceived notion that there is nothing of interest or value to be gained from acquaintance with that hybrid genre of writing that is vaguely and for the most part disparagingly known as “theory”. For it is in just this long disputed border-zone where philosophy comes into contact with language at its most inventive, unpredictable and wayward that thought may find itself venturing onto ground that has not yet been trodden into ruts (...) by the keepers of received philosophical-linguistic lore. (shrink)

Moral distress is prevalent within the neonatal intensive care unit (NICU) and can negatively affect clinicians. Studies have evaluated the causes of moral distress and interventions to mitigate it...

Assume that, even with a time machine, Tim does not have the ability to travel to the past and kill Grandfather. Why would that be? And what are the implications for traditional debates about freedom? We argue that there are at least two satisfactory explanations for why Tim cannot kill Grandfather. First, if an agent’s behavior at time _t_ is causally dependent on fact _F_, then the agent cannot perform an action (at _t_) that would require _F_ to have not (...) obtained. Second, if an agent’s behavior at time _t_ is causally dependent on fact _F_, then the agent cannot perform an action (at _t_) that would prevent _F_ from obtaining. These two explanations have distinct upshots for more traditional debates over freedom. The first implies that causal determinism is incompatible with the ability to do otherwise and also raises questions about the traditional arguments for the incompatibility of divine foreknowledge and the ability to do otherwise; the second does neither. However, both explanations imply that the Molinist account of divine providence renders agents unable to do otherwise, at least in certain circumstances. (shrink)

Many believe the existence of a moral right to some good should lead to recognition of a corresponding legal right to that good. If, for instance, there is a moral right to healthcare, it is natural to believe countries should recognize a legal right to healthcare. This article demonstrates that justifying legal rights to healthcare is more difficult than many assume. The existence of a moral right is insufficient to justify recognition of a corresponding (...) justiciable constitutional right. Further conditions on when it is appropriate to recognize constitutional rights are rarely satisfied in the healthcare case. And focusing on aspirational or statutory rights presents costs for those seeking to justify legal rights on the basis of corresponding moral ones while maintaining empirical challenges for justifying constitutional rights. This suggests movement from a moral right to a corresponding legal one is far from straightforward and justifies examining alternative means of realizing moral socio‐economic rights such as the proposed moral right to healthcare. (shrink)

Myriad Genetics holds a patent on testing for the hereditary breast and ovarian cancer genes, BRCA1 and BRCA2, and therefore has a forced monopoly on this critical genetic test. Myriad launched a Direct-to-Consumer (DTC) marketing campaign in the Northeast United States in September 2007 and plans to expand that campaign to Florida and Texas in 2008. The ethics of Myriad's patent, forced monopoly and DTC campaign will be reviewed, as well as the impact of this situation on patient access and (...) care, physician liability, and the future of DTC campaigns for genetic testing. (shrink)

This study aimed to identify the antibiotic-relevant lessons from the controlled drug regimen for narcotics. Whereas several elements of the United Nations Single Convention on Narcotic Drugs could be advantageous for antibiotics, we doubt that an international legally binding agreement for controlling antibiotic consumption would be any more effective than implementing stewardship measures through national AMR plans.

Background Rare diseases are generally poorly understood from scientific and medical standpoints due, to their complexity and low prevalence. As a result, individuals living with rare diseases struggle to obtain timely diagnoses and suitable care. These clinical difficulties add to the physical and psychological impacts of living with chronic and often severe medical conditions. From the standpoint of pragmatist ethics, the morally problematic situations that adults living with rare diseases experience matter crucially. However, there is little known (...) about these experiences.Methods A survey study was conducted with 121 adults living with rare diseases in Québec, Canada, to identify morally problematic situations encountered in the healthcare system and everyday life as part of a participatory action research project. Morally problematic situations elicited internal tensions and constraints to agency.Results Adults living with rare diseases experienced morally problematic situations of stigmatization, disbelief, and sometimes abuse in the healthcare system. These situations were compounded by diagnostic delays, inadequate care, and suboptimal follow-up, and led some individuals to opt-out of medical care. In their personal lives, these individuals sometimes found themselves in situations of physical and financial dependency. They often also had to give up professional occupations, academic training, or life projects.Conclusions Adults living with rare diseases experience important morally problematic situations navigating the healthcare system and their everyday lives, some of which could be alleviated through interventions developed through future participatory action research. (shrink)

From mid-2020 until early 2023, the Chronicle of Higher Education published a series of essays that, when summed up, represents a valediction for English and American literary studies as practiced during the last half century. Some of the Chronicle authors, enjoying the privilege of tenure, speak for the profession as it was in healthier times. Others, representing a younger generation of scholars, hold on to unstable teaching positions. All are disconsolate.The essays, collected on the Chronicle website, look back (...) to those earlier times to seek the reasons for today's dreary situation. In dirgelike recitations, external causes are named and excoriated: the drying up of state funding, the growth of administrative personnel at the cost of faculty positions, the reluctance of debt-ridden students to concentrate on studies not leading to jobs, and the general parental and public resistance to anything considered effete. But at least one contributor to the series, Michael Clune of Case Western Reserve University, will not permit his fellow teachers to escape whipping: “Our fuzziness about what we do raises in the minds of our publics the not unreasonable assumption that we don't know what we're doing. The crisis in the humanities requires that we be open and honest about our discipline's rationales.”What does such a call to action mean? Does Clune ask for more exacting curricular control, more agreement as to pedagogical mission, a greater consensus about certifiable merit in professional advancement? About specific alterations to the system, he is not forthcoming, and this generalization applies to most of the other contributors as well: the prognosis is clear but the cure beyond anyone's reach. Why? To propose radical changes to the humane disciplines, even when most necessary, invites deep resistance. If professors are largely political liberals, they are also pedagogical archconservatives. Clune is nevertheless right in asking fellow professors for candor about what they are doing. The one strategy that cannot work is rehearsing their woes in public. Nor can a focus on the theoretical skirmishes in which they entangle themselves create the kind of consumer demand—student demand—that is needed. Unless they can collectively devise (or recover) intellectual attractions to draw in a new generation of students and fill lecture halls and seminar seats with them, humanists will be even further shunted to the sidelines.Another essayist, herself determined to get matters straightened out and thereby save the discipline, imagines her colleagues uniting to establish a stricter definition of what they collectively should do. Hannah Walser of the Harvard Society of Fellows believes that professors teaching literary works have been all too satisfied with the wasteful art of praising or derogating the performance or rhetorical brilliance of their colleagues: “In literary studies’ more affirmative modes, elaborate assurances of our colleagues’ competence—those more-a-comment-than-a-questions that praise a talk as beautiful, brilliant, powerful, and so on—end up standing in for actual arguments about the rightness or wrongness of a claim.” Literary works do not function as truth-telling “claims,” however, but as imaginative creations entertaining both truth and falsehood, the “real” as well as the “unreal.” In order to read those creations, and to share those readings with others, teachers must agree on the empirical terms, the evidentiary tools, to use. Walser rightly wants everyone to play the same game with the same rules. Only then can teachers come to terms with literary objects whose ultimate value is determined by something direct and visceral—aesthetic pleasure. But while Walser is right to call for procedural agreement, such a call will not, by itself, entice students to return to the classroom.In another essay, Katie Kadue looks back nostalgically to a time when, in its modest way, the world of literary studies had “stars,” when the English Institute featured brilliant personages at well-attended meetings, when jobs were plentiful and seminal books about theoretical issues were everywhere discussed. To Kadue, a young scholar, such moments seem all the more dazzling and attractive by virtue of their absence today. Were “stars” again to capture collective attention, a sign would be given that the humanities could recover its health and make literary study attractive to students again.Hence the Chronicle publication concludes with portraits of two humanists, Sianne Ngai and Mark McGurl, who have gained some recognition and acclaim. Perhaps, as the Chronicle suggests, with them a new constellation of stars is coming into view.Ngai is the author of three impressive and widely discussed monographs, the most recent being Theory of the Gimmick (2020), which, with a complexity uniquely its own, asks the reader to study the mixed attraction and repulsion produced by the intrusion of a “gimmick”—something in a text that draws attention to itself and exposes the inner workings of the text. When we encounter a gimmick in a text, it provokes both suspicion and pleasure: “When we say something is a gimmick, we mean it is overrated and deceptive, that you would have to be a sucker to fall for it. Yet gimmicks exert a strange hold on us. As with a magic show, we can enjoy the gimmick even while we know we are being tricked.” Other gimmicks—arousing “small” or “minor” affects—have been overlooked or dismissed in conventional literary discourse. Ngai, entranced by them, also argues that, beyond suspicion, pleasure, and annoyance, gimmicks have the power to reveal deep cultural, economic, and political forces shaped by contemporary capitalism.Ngai's strategy is ingenious and idiosyncratic. Its apparent strength is that it can explain everything—literary, economic, political, and cultural—that comes within its range. But its very originality renders it inoperable by anyone, be it student or teacher, other than its inventor. Like Marshall McLuhan, Hugh Kenner, Leslie Fiedler, and Stanley Fish before her—each of them working with a home-grown methodology—Ngai herself is her theory. Her inimitability prevents her theoretical procedures from becoming a generally shared answer to the classroom problems of literary study.McGurl, a sociologist of textual production, readership, and consumption, is more conventional than Ngai. He is certainly more omnivorous. He is interested in everything out there for the reader or listener to acquire, high or low, bad or good, by way of book, podcast, recording, or any other means or genre. His recent book Everything and Less: The Novel in the Age of Amazon shows how the company “has created the psychological and temporal conditions that not only alter how fiction is bought, sold, distributed, and read, but also how it is produced.” Might it be possible—and attractive—for teachers and students to follow and extend procedures like those of McGurl? An immense panorama of verbal matter might thereby await classroom after classroom. With much to read and much to hear, professors and students could examine and evaluate data aplenty. Might classrooms and seminar rooms once again be filled, this time by sociologists of literature? Professor Clune's query—“Why should students listen to me? What claim do I have on the public?”—could then be answered: We and you hereby claim everything written as our province; we, a new generation of humanists, will thus have work enough.Alas, for universities and colleges to make such a move—to resolve that literary study should embrace all of writing—would be to forfeit the one inestimably valuable form of intellectual capital now and forever readily available to them: that unique body of works known as literature: poetry, drama, fiction. Some professors appear to believe that this capital asset is wanting, depleted as a source, and therefore impotent to generate exciting scholarly work or teaching—which is why, for the last four or so decades, “theory” in its many varieties has proved so seductive. But theoretical discourse, derivative and secondary, proves vapid without the fiction, poetry, and drama from which it derived and on which it survives. Recognizing the rare power to be found in the works themselves and nowhere else, it is to those works that teachers must somehow return. Only then will there be compelling reason to hope that students will follow. (shrink)

This article introduces a method to identify risks through expert elicitation, using silver nanotechnology as a case study. Unique features of the method include supplying experts with a list of silver nanotechnology products, and conducting the elicitation in an extended interview format that captures the experts' reasoning. The end result is a series of graphical representations of expert thinking from which high-risk scenarios and knowledge gaps can be reliably inferred. This methodology, combined with other approaches to expert elicitation, (...) can help identify knowledge and oversight gaps, and can be used as part of an adaptive management strategy. (shrink)

Dans cet article, je tente de montrer que le principe d’impartialité et de généralisation qui définit le point de vue moral s’accommode mal de la distinction entre discours moral et discours éthique proposée par Habermas. Alors que celuici relie le jugement moral à un processus de décontextualisation qui affranchit le discours de ses réferences symboliques immédiates, je suggère plutôt, à la suite d’A. Wellmer, d’y voir une règle d’impartialité immanente aux situations d’action. Dans cette foulée, je (...) propose un examen critique du Principe “U” qui gît au coeur de la Diskursethik mais aussi de la théorie du consensus sur laquelle s’appuie ce principe, tout en reconnaissant par ailleurs l’importance de la philosophie de Habermas pour la théorie morale contemporaine. A la toute fin, j’aborde la question de l’enracinement du moral point of view dans la forme de vie moderne, en suggérant que sa conception de I’impartialité est peut-être elle-même liée à une certaine représentation du bien qui lui est propre. Faut-il alors maintenir la séparation étanche qu’etablir Habermas entre discours moral et discours éthique? Rien n’est moin sûr.I attempt to show that the principle of impartiality and generalization that defines the moral point of view is irreconcilable with Habermas’s distinction between moral and ethical discourse. While Habermas imposes a process of decontextualization upon moral judgment, which frees discourse from its immediate symbolic references, I suggest, following A. Wellmer, that an impartiality rule be extracted from them. Similarly, I undertake a critical analysis of the “U” principle at the heart of the Diskursethik and the underlying consensus theory, while recognizing the importance of Habermas’s philosophy for contemporary moral theory. Finally, I address the question of the entrenchment of the moral point of view in the modern life form. I suggest that his concept of impartiality is perhaps linked to a certain representation of the good peculiar to him. Should the impermeable division established by Habermas between moral and ethical discourse be maintained? Nothing is less certain. (shrink)

Standards of professional legal education are developed by different organizations: in some countries these are governmental bodies, in others these are professional associations. Apart from a country these standards include Learning Outcomes which shape law schools’ curricula. Both American and European standards mention, to different extent, written and oral communication in the legal context, but a number and contents of subjects directed at developing and mastering professional communicative competency differ a lot. There are disciplines totally devoted to (...) the competency named as well as courses in which communicative skills are an integral constituent for their successful completion. The article goal is to find a place and role of a Legal English course in achieving learning outcomes connected with professional communicative competence. The methodology incorporated desk and field studies. The literature review is aimed at identifying current state of affairs in American law schools, as they provide first-class legal education recognized all over the world, and in Russian law schools, as the author works in this system and is interested in its development. A questionnaire was designed to explore Russian law school graduates’ assessment of practicality of subjects they had studied for their professional activities. The analysis of literature and Internet sources allowed to specify the ways of teaching written and oral communication in American law schools and to highlight the situation in Russian legal education. It shows that the Russian system is characterized by predominance of teaching theory of substantive and procedural rules of law and lack of curriculum disciplines aimed at cultivating skills and competencies. A survey of Russian law schools’ recent graduates indicates that most of communicative, in a broad sense, skills, which they use in their everyday work, were obtained within their LE classes. So, complementing a LE course with modules devoted to different aspects of legal writing and specific patterns of lawyer-client, lawyer-lawyer, lawyer-judge communication will definitely contribute to achieving learning outcomes which are put forward by legal education standards. (shrink)

Traditionally, intentionality is regarded as that feature of all and only mental states – paradigmatically beliefs and desires – in virtue of which they are directed at or are about something. The problem of intentionality is to explain how it fits into the natural order given the intuition that no physical entity can be intentionally directed in this sense. The basic assumption of this paper, proposed by enactivists, is that failure to naturalize intentionality and mental representation is partly due to (...) the fact that most participants in the debate take intentionality and mental representation to be equivalent. In contrast, it is proposed to treat intentionality as a feature of whole embodied agents (paradigmatically organisms) who can be directed at objects and states of affairs in various ways, while representation should be regarded as a feature of mental states (and their respective vehicles or underlying mechanisms). The present paper develops and motivates the distinction, applies it to Metzinger’s project of naturalizing phenomenal representation, and demonstrates the range of theoretical options with respect to a delineation of cognition given the enactive proposal. It is taken as problematic that enactivism takes the realm of cognition to be identical to the realm of biology. Instead, a constraint on a theory of intentionality and representation is that it should delineate the subject matter of cognitive science and distinguish it from other sciences, also to leave room for the possibility of artificial intelligence. One important implication of the present proposal is that there can be creatures which can be intentionally directed without having the capacity to represent. That is, their intentionality is restricted to being able to be directed at existent things. Only creatures in possession of the right kind of neurocognitive architecture can produce and sustain representations in order to be directed at non-existent things. It is sketched how this approach conceives of intentionality as a developmental and layered concept, allowing for a hierarchical model of varieties of intentionality, ranging from the basic pursuit of local environmental goals to thoughts about fictional objects. (shrink)

That we can learn something from literature, as cognitivists claim, seems to be a commonplace. However, when one considers matters more deeply, it turns out to be a problematic claim. In this paper, by focusing on general revelatory facts about the world and the human spirit, I hold that the cognitivist claim can be vindicated if one takes it as follows. We do not learn such facts from literature, if by “literature” one means the truth-conditional contents that one (...) may ascribe to textual sentences in their fictional use, i.e., in the use in which one makes believe that things unfold in a certain way. What we improperly call learning from literature amounts to knowing actually true conversational implicatures concerning the above facts as meant by literary authors. So, in one and the same shot, we learn both a general revelatory fact and the fact that such a fact is meant via a true conversational implicature by an author. The author draws that implicature from the different truth-conditional content a sentence possesses when the sentence is interpreted in a fictional context, meant as Kaplan’s (1989) narrow context, i.e., a set of circumstantial parameters (agent, space, time, and world). (shrink)