1. Tout système juridique est production d’une histoire et d’une culture politiques déterminée, qui lui ont donné une organisation spécifique. Parler des limites de telles organisations peut s’entendre en deux sens, qui interagissent: premièrement, elles peuvent servir à différencier ces systèmes par rapport à d’autres ordres normatifs. Secondement, elles désignent ce que, par sa texture, le droit est hors d’état de réussir. 2. On comprend le concept de système comme une organisation aux structures différenciées de textes, de normes, d’acteurs. Ce (...) qui caractérise un système est son autoréférentialité et ses modes de clôture et ses modes d’ouverture. 3. Concernant la limite dans le second sens, on observera que la normativité comme mode d’action propre au droit le met souvent dans l’incapacité d’assumer pleinement les tâches de régulation qui lui sont confiées. Il s’agit d’une part d’une limite factuelle: celle de la technicité et du volume de ces tâches. D’autre part, la nécessité de plus en plus fréquente de prendre en compte les circonstances individuelles concrètes de l’application entraîne une légistique de diminution de la densité normative et, par conséquent, de déplacer une épistémologie fondée sur la répétition en direction de l’innovation. 4. Ces deux facteurs notamment font du droit un univers qui ne peut plus prétendre à une complétude cohérente: c’est un univers en constante évolution, qui exige pour sa mise en œuvre, de manière continue, l’apport d’informations provenant de son environnement. Ces apports circulent dans les modes d’ouverture du droit—la diminution de la densité normative et le recours à des expertises, des savoirs, des déontologies extérieures. Cependant, en vertu de l’autoréférentialité du droit, ces apports doivent être sélectionnés et juridicisés pour être intégrés dans le système juridique et préserver ainsi sa clôture. Il y a là une double programmation à respecter: la sélection doit d’une part respecter le cadre normatif du droit et de l’autre porter sur un choix correspondant aux attentes sociales qu’il s’agit de convaincre de son bien-fondé. Les limites du droit par rapport à d’autres ordres normatifs est ainsi définie par l’ordre juridique lui-même, dans le respect de cette double programmation. 5. Ce système a des présupposés politiques, culturels et historiques qui empêchent d’élaborer sans autre une essence du droit, valable urbi et orbi: notamment séparation des pouvoirs et liberté d’expression. Il n’est même pas certain qu’il puisse perdurer. En particulier, l’internalisation croissante du droit n’est guère conciliable avec son organisation telle que l’Occident l’a conçue. En outre, de plus en plus le droit devient l’objet d’une normativité supérieure, au nom de laquelle il est lui-même jugé: c’est le phénomène de l’économisation du droit. (shrink)

This paper argues that the demands of respect for autonomy in the context of biobanking are fewer and more limited than is often supposed. It discusses the difficulties of agreeing a concept of autonomy from which duties can easily be derived, and suggests an alternative way to determine what respect for autonomy in a biobanking context requires. These requirements, it argues, are limited to provision of adequate information and non-coercion. While neither of these is in itself negligible, this is a (...) smaller set of demands than is often suggested. In particular, it is argued here that securing ‘one time consent’ is consistent with respect for autonomy. Finally, the paper notes that while the demands of respect for autonomy may be less than some suppose, respecting autonomy is not the only way in which biobanks and their users may have moral duties to donors. (shrink)

L’une des plus notoires limites en droit international est la possibilité pour les États parties d’émettre des réserves afin de diminuer leur obligation de mettre en œuvre les droits enchâssés dans un traité. Les réserves formulées lors de la ratification de la Convention relative aux droits de l’enfant au regard du droit à l’éducation sont particulièrement notables et seront le sujet d’analyse de cet article. Nous allons dans un premier temps considérer le sens, l’intention sous-jacente, et la portée des réserves (...) en droit international, dans le cadre de la théorie de la « signifique» élaborée par l’éminente sémioticienne Victoria Lady Welby. Dans un deuxième temps, nous allons étudier le contenu des réserves au droit à l’éducation, l’intention des États lors de la rédaction des dispositions en nous référant aux travaux préparatoires de la CDE, et enfin leur « signification». Nous tenterons de répondre à la question suivante: les réserves au droit à l’éducation ont-elles des limites? Finalement, nous effectuerons une analyse sémioéthique de la Convention afin d’identifier des mesures permettant de désamorcer le signe pernicieux que constitue toute réserve au droit à l’éducation. (shrink)

This article offers a theoretical and doctrinal solution to a vexing question in public law: how to determine the justifiability of Charter rights-limiting administrative decisions. The jurisprudence suggests three approaches, or modes of reasoning: minimal impairment analysis, ‘interest balancing’, and ‘values-advancing reasoning’. Like Cerberus, the guard dog of Hades, Canadian public law has become three-headed. While scholars and courts argue about which mode of reasoning is categorically best, the culture of justification compels us to ask instead which provides the most (...) compelling explanation for each rights-limiting decision. Just as cutting off one of Cerberus’s heads would diminish his effectiveness as a guard dog, rejecting either of the modes of reasoning would limit decision makers’ capacity to explain their decisions and undermine a culture of justification. The article makes a theoretical case for retaining all three modes of reasoning and sets out a doctrinal approach to determining when each is applicable. (shrink)

About 35 years ago Wheeler introduced the motto “law without law” to highlight the possibility that Physics may be understood only following regularity principles and few relevant facts, rather than relying on a treatment in terms of fundamental theories. Such a proposal can be seen as part of a more general attempt summarized by the slogan “it from bit”, which privileges the information as the basic ingredient. Apparently it seems that it is possible to obtain, without the use of physical (...) laws, some important results in an easy way, for instance, the probability distribution of the canonical ensemble. In this paper we will present a general discussion on those ideas of Wheeler’s that originated the motto “law without law”. In particular we will show how the claimed simplicity is only apparent and it is rather easy to produce wrong results. We will show that it is possible to obtain some of the results treated by Wheeler in the realm of the statistical mechanics, using precise assumptions and nontrivial results of probability theory, mainly concerning ergodicity and limit theorems. (shrink)

Work by Sales and Lavin has suggested that it is possible to improve the moral and ethical thinking of psychologists. In particular, moral and ethical thinking by psychologists could be improved if psychologists learned to use defensible moral metrics. The usefulness of formal training in ethics and morality, with the implicit condemnation of the moral metrics that might be taught in such training, has been challenged by writers such as Justice Holmes. He has alleged that professionals learn how to behave (...) in their professional roles by practicing them. A variety of problems are noted with Holmes' view. Further, psychologists cannot rely on expert advice from Institutional Review Boards or Ethics Committees, even if they wished to do so. Institutional Review Boards, and by implication Ethics Committees, have serious deficiencies. However, psychologists can make considerable progress in their moral and ethical thinking, if they distinguish ethics from morality and also notice the similarities between moral thinking and scientific thinking and theorizing. A controversy over the recovered-memory therapy is employed to illustrate some of these distinctions and similarities. The argument continues by developing two moral metrics. The first begins with ethics and culminates in moral appraisal. The second makes moral appraisal an earlier step than ethical appraisal. With these metrics described, it is then noted that a popular metric in psychology, that of Koocher and Keith-Spiegel, is inadequate. It is then shown that the two moral metrics earlier described are reasonably believed to be adequate. The adequacy of one of them is directly illustrated with an example involving the question of whether persons with serious mental illnesses should be allowed to enter into contracts that would relax the criteria for their involuntary hospitalization and treatment. It is concluded that teachable, intellectually defensible moral metrics are possible, and that their use would improve the moral and ethical thinking of psychologists. (shrink)

People have understandable concerns over what happens to their bodies, both during their life and after they die. Consent to organ donation is often perceived as an altruistic decision made by individuals prior to their death so that others can benefit from use of their organs once they have died. More recently, live organ donation has also been possible, where an individual chooses to donate an organ or body tissue that will not result in their death (such as a kidney). (...) Although these live organ donations can be purely altruistic, they are usually done to benefit a close family member. An additional complicating factor with both kinds of donation is whether forms of extended decision-making can be used as a means of consent. This is where instructions are issued through some form of advance directive giving specific written instructions as to donation or by appointing a proxy surrogate decision-maker to determine such issues. In the case of deceased donation, there is a question as to whether an advance directive can override the wishes of family members. In the case of live organ donation, there is a largely untested concern as to whether advance directives or surrogates can provide acceptable consent to donation when an individual, though still alive, has lost the capacity to consent for themselves. In this paper, I will focus predominantly on the second of these issues concerning live organ donation and the challenges this poses for donors who have lost capacity to consent. I argue that the limitations on advance directives and surrogate decision-making mean that they can only give us an indication of preference and cannot serve as an authoritative consent where there is any dispute over donation. Instead, in turns out that family members have a significant and usually determinate role to play in these decisions. Although I am focusing on organ donation, the implications for this potentially extend to the use of other tissues and even gametes, which could be used for reproductive purposes. (shrink)

Despite Michel Serres’s caution with figures of the limit, border, and boundary which philosophy and social theory put into play, his work can fruitfully be read as a proposal to rethink limits for a social and natural contract. By following up on the intimate connection between limits and law in his work, this paper shines a light on Serres’s argument for a parallelism of limits and laws; and particularly highlights the partially underacknowledged role of entropy for this (...) matter. First, attention will be drawn to the role of topological boundaries for Serres’s structural consideration of a natural contract in a number of his works (e.g., The Natural Contract, Atlas, Hominescence), in order to demonstrate the indispensable connection between topological boundaries, a topologically conceived ethics, and a topological approach to law. This grounds the argument for a second step, which will focus on the role of entropy and entropic difference for his understanding of processes of social organization as well as a proposal of a “new natural contract.” Similarly, this will emphasize the linkages between entropic figures of the limit and respective conceptions of a contract. This “new natural contract,” as Serres calls it, not only goes a long way in connecting themes around thermodynamic and informational entropy of the early Hermès series to his later employments of entropy in social theory, but also integrates different criticisms of his earlier natural contract and critiques of a Western-centric form of naturalism. The aim of this paper is to show that Serres’s approach to entropy engenders a reconsideration of a natural contract that not only thoroughly integrates his own non-essentialist and non-dualistic understanding of nature, but that opens up a horizon of resonances with feminist and postcolonial critiques of the Anthropocene. (shrink)

In the following, the author presents a case for federally mandated gun control regulations. Specifically, the author argues—with reference to The Declaration of Independence, the Constitution, and the Bill of Rights—that the principle of limited government often used against federal gun control laws actually provides legitimate justification for them. The aim is to persuade gun advocates to accept such regulations from their own point of view.

This book delineates the limits that define, and the tensions that beset, the process of conceiving how laws connect and interact with morals and facts--about the ways we do think about these connections and interactions, not about the ways we should think.

Les règles de la justice sont, d'après Friedrich Hayek, l'effet d'un ordre spontané et non de la volonté délibérée des hommes. Cette thèse renvoie à une conception de la règle abstraite et générale dont ce livre montre le lien avec les limites de la raison, l'abstraction constituant, selon Hayek, le moyen pour l'esprit de s'occuper d'une réalité que celui-ci ne peut entièrement comprendre. Une "primauté de l'abstrait" s'applique ainsi non seulement à l'ordre social - guidé par les règles abstraites de (...) la justice, mais également à l'ordre sensoriel, c'est-à-dire à notre perception du monde extérieur et aux dispositions à agir qui en résultent. Comment comprendre le lien entre cette primauté de l'abstrait et le libéralisme de Hayek, en particulier concernant sa conception de la "morale du marché" comme discipline des règles abstraites et son rejet de buts particuliers guidant l'action publique? Enfin, Hayek a-t-il eu raison d'attribuer au philosophe empiriste David Hume une telle conception de l'abstraction?"--Page 4 of cover. (shrink)

Respect for autonomy has become a fundamental principle in human research ethics. Nonetheless, this principle and the associated process of obtaining informed consent do have limitations. This can lead to some groups, many of them vulnerable, being left understudied. This book considers these limitations and contributes through legal and philosophical analyses to the search for viable approaches to human research ethics. It explores the limitations of respect for autonomy and informed consent both in law and through the examination of cases (...) where autonomy is lacking (infants), diminished (addicts), and compromised (low socio-economic status). It examines alternative and complementary concepts to overcome the limits of respect for autonomy, including beneficence, dignity, virtue, solidarity, non-exploitation, vulnerability and self-ownership. It takes seriously the importance of human relationality and community in qualifying, tempering and complementing autonomy to achieve the ultimate end of human research - the good of humankind. (shrink)

Firearm violence is a major public health problem in the United States. In 2000, firearms were used in 10,801 homicides – two-thirds of all homicides in the U.S. – and 533,470 non-fatal criminal victimizations including rapes, robberies, and assaults. The social costs of gun violence in the United States are also staggering, and have been estimated to be on the order of $100 billion per year.Illegal gun carrying, usually concealed, in public places is an important risk factor for firearm-related crime. (...) In the 1980s and 1990s, police departments across the country began to develop and implement strategies to address illegal weapons carrying. Often these strategies have involved aggressive efforts to identify and physically search individuals suspected of illegally carrying a firearm. (shrink)

A leaf falls to the ground, wafting lazily on the afternoon breeze. Clouds move across the sky, and birds sing. Are these events governed by universal laws of nature, laws that apply everywhere without exception, subsuming events such as the falling of the leaf, the movement of the clouds and the singing of the birds? Are such laws part of a small set of fundamental laws, or descended from such a set, which govern everything there is in the world?

Hans Kelsen’s claim that the state and the law are identical is surrounded by a somewhat mystical air. Yet, the ‘identity thesis’ loses much of its mystical aura when it is seen as an attempt to recast the state, qua social fact, in deontological terms. The state is seen as a condition necessary to account for the validity of legal acts. Indeed, the meaning of the state is reduced to the function performed by a conception of order in the reproduction (...) of a system of norms. No further social fact would attest to its existence. From a sociological point of view, all law is essentially, and principally, law sans state. (shrink)

Healthy volunteers in biomedical research often face significant risks in studies that offer them no medical benefits. The U.S. federal research regulations and laws adopted by other countries place no limits on the risks that these participants face. In this essay, I argue that there should be some limits on the risks for biomedical research involving healthy volunteers. Limits on risk are necessary to protect human participants, institutions, and the scientific community from harm. With the exception of (...) self-experimentation, limits on research risks faced by healthy volunteers constitute a type of soft, impure paternalism because participants usually do not fully understand the risks they are taking. I consider some approaches to limiting research risks and propose that healthy volunteers in biomedical research should not be exposed to greater than a 1% chance of serious harm, such as death, permanent disability, or severe illness or injury. While this guideline would restrict research risks, the limits would not be so low that they would prevent investigators from conducting valuable research. They would, however, set a clear upper boundary for investigators and signal to the scientific community and the public that there are limits on the risks that healthy participants may face in research. This standard provides guidance for decisions made by oversight bodies, but it is not an absolute rule. Investigators can enroll healthy volunteers in studies involving a greater than 1% chance of serious harm if they show that the research addresses a compelling public health or social problem and that the risk of serious harm is only slightly more than 1%. The committee reviewing the research should use outside experts to assess these risks. (shrink)

I examine two related ideas about the role of desert judgments which say, roughly, that, if a punishment is undeserved, it is impermissible to impose it. These can both be taken to claim that desert is a ‘limiting condition’ on the pursuit of consequentialist aims. I discuss what considerations are supposed to support an offender’s desert claim. I first examine the major divide between contemporary retributivist theories: those that take an offender’s desert to supervene only on culpability considerations, and those (...) that take an offender’s desert to supervene on culpability considerations, and the amount of harm her offense caused. I then look more closely at what sorts of facts fall into the categories of culpability and harm. We can see at the conceptual level that the conceptions of desert previously sketched give us reason to believe that an offender’s desert does not set a plausible upper limit on the severity of her punishment. If we ‘extend’, as I say, conceptions of an offender’s desert in order to get a clearer idea of the amount of punishment she deserves in certain cases, we see that the two types of retributivist theory have serious, and connected, difficulties in setting the limit. The conclusion I reach is this: it is unclear that desert is a limiting condition. (shrink)

In Vencor, Inc. v. National States Insurance Co., the U.S. Court of Appeals for the Ninth Circuit held that a Medigap insurance provider was only obligated to pay the rates that Medicare would have paid for the same care.Clarence Rollins purchased a Medigap insurance policy from National States Insurance Company to supplement his Medicare coverage. When Rollins became ill and required care beyond that which Medicare would cover, he received his medical treatment from Vencor Hospital-Phoenix. Upon Rollins's death, NSIC paid (...) Vencor $38,760. Vencor claimed that NSIC owed an additional $132,438 because NSIC was not entitled to the lower care rates established by Medicare. NSIC refused to pay Vencor's higher rates. As a result, Vencor sued NSIC for breach of contract.The U.S. District Court for the District of Arizona held, on a motion for summary judgment, that no breach occurred, and that NSIC was obligated to pay only the lower rates established by Mediare. The Ninth Circuit affirmed this decision. (shrink)

Freedom is first apprehended as the pursuit of an activity which implies the choice to defend a thesis among other possible ones. This translation of the problem of freedom in an articulate language presupposes a complex nervous system and sensory apparatuses which we take for granted. In this study, I try to explore the undergrounds of the problem of freedom along with the suggestion that the notion of coding could enable one to bridge nature and the mind. When organisms invent, (...) are they doing it in a spontaneous manner, inscribing in their hereditary and mnemonic instructions a stochastic contrivance of random accidents, or are they attempting to select among a limited number of schemes endowed with some optimality of functioning? If we consider them as submitted to physical forces, it is to the extent that we make them part of a strategy to extend the "laws" of a nature understood to respond passively. I suggest in this study that the epistemological understanding must regionalize itself and admit a hierarchy of dispositions in relation to the phenomenon of selection. I end by suggesting the pursuit of affirmation instead of negation, as this alone contains the requirement of integration to the knowing subject as well as the form in its act of understanding, without giving it a spontaneist position. (shrink)

David Hyman and Charles Silver are quite right. Opinion 6.01 in the American Medical Association's Code of Medical Ethics is difficult to defend. Ties between compensation and outcomes need not mislead patients into thinking that results are guaranteed; they are widely used in other fields with considerable success, even if they have some disadvantages; they can potentially bring patients more actively into decision-making about whether and from whom to purchase which medical care; and, if carefully tuned, they can promote quality (...) by aligning providers’ welfare more closely with patients’.The purpose of this commentary is thus not to disagree with the fundamental thesis that result-based compensation arrangements can be appropriate and useful in the health-care setting. Rather, the objective is to “cut the next swath,” so to speak. While Hyman and Silver are right that RBCAs have potential to do good, they may be overly optimistic about benefits, while underestimating the potential limitations and hazards. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Limit Formations:Violence, Philosophy, RhetoricOmedi Ochieng For Megha Sharma SehdevNow days are dragon-ridden, the nightmareRides upon sleep: a drunken soldieryCan leave the mother, murdered at her door,To crawl in her own blood, and go scot-free;The night can sweat with terror as beforeWe pieced our thoughts into philosophy,And planned to bring the world under a rule,Who are but weasels fighting in a hole.—W. B. Yeats, "Nineteen Hundred and Nineteen"Violence is a (...) limit formation. It is neither reducible to a brute fact nor is it ineffably ethereal. To write about violence, then, is to confront—if only as disavowed remainder—critical limits, no less of the writer than of the writing itself. Fewer subjects have proven as confounding for philosophy and rhetoric, this journal's primary charge. In both its general particulars and its specific manifolds, violence nonpluses philosophical commonplaces, upends rhetorical tropologies.Philosophy imagines itself mediator to reality's arche, the bedrock of being. Ancient Greek philosophy sought to distinguish necessity from contingency, essence from accident, dialectic from rhetoric, logic from fallacy. Those who took up this intellectual tradition came to conceptualize violence as first and foremost a question of "nature"—more specifically, those marked out by nature to rule (propertied male citizens) and those marked [End Page 330] out by nature for subjection (the enslaved, women, nonhuman animals). In the early modern context of European philosophy, still, despite its pretensions, deeply indebted to this Mediterranean legacy, the canonical lexicon of sensemaking centered on legitimacy and its conceptual appurtenances of sovereignty, will, and rights.Strikingly, it is in the opposed registers of analytic and continental philosophy that violence's cataphilosophic figuration appears most salient. Consider, for example, one such famous symposium convened in the analytic journal Philosophy and Public Affairs, as narrated by political philosopher Michael Walzer:In an earlier issue of Philosophy & Public Affairs there appeared a symposium on the rules of war which was actually (or at least more importantly) a symposium on another topic. The actual topic was whether or not a man can ever face, or ever has to face, a moral dilemma, a situation where he must choose between two courses of action both of which it would be wrong for him to undertake. Thomas Nagel worriedly suggested that this could happen and that it did happen whenever someone was forced to choose between upholding an important moral principle and avoiding some looming disaster. R. B. Brandt argued that it could not possibly happen, for there were guidelines we might follow and calculations we might go through which would necessarily yield the conclusion that one or the other course of action was the right one to undertake in the circumstances (or that it did not matter which we undertook). R. M. Hare explained how it was that someone might wrongly suppose that he was faced with a moral dilemma: sometimes, he suggested, the precepts and principles of an ordinary man, the products of his moral education, come into conflict with injunctions developed at a higher level of moral discourse. But this conflict is, or ought to be, resolved at the higher level; there is no real dilemma.(1973, 160–61)Analytic political philosophy's resolute disavowals could not be here better splayed. Morality is construed as all-encompassing. The political is not so much effaced as it is rendered derivative to a foundational drama of will, obligation, choice. Analytic philosophy's oft-preened claim to clear, transparent, terse style proves constitutive of its desire to contain, if it cannot altogether moralize away violence. [End Page 331]Where analytic philosophy conceives of violence as an object, its limits defined by morality's handmaiden, the "well-ordered society" (Rawls 2001, 8), continental philosophy conjures a sublime violence that shatters and transfigures normative violence. Walter Benjamin posits a binary opposition between mythical and divine violence: "If mythical violence is lawmaking, divine violence is law-destroying; if the former sets boundaries, the latter boundlessly destroys them; if mythical violence brings at once guilt and retribution, divine power only expiates, if the former threatens, the latter strikes, if the former is bloody, the latter is lethal without spilling... (shrink)

Abstract: This paper defends David Armstrong’s solution to the problem of inductionb against Helen Beebee’s attack on that solution. To solve theproblem of induction, Armstrong contends that the timeless necessity explanation is the best explanation of our observed regularities, whereas Beebee attempts to demonstrate that the time-limited necessity explanation is an equally good explanation. Allegedly, this explanation blocks Armstrong’s solution. I demonstrate that even if the time-limited ecessity explanation were an equally good explanation of our observed regularities, this explanation does (...) not block Armstrong’s solution. I argue that, in fact, the timeless necessity explanation is a better explanation of our observed regularities than is the time-limited necessity explanation. (shrink)