The theory of this article is that the attitude to illegality has so dramatically changed that it is no longer possible, except in extreme cases, to say that illegality as such is a defense to restitutionary claims arising under illegal contracts. The objection to an otherwise good action in unjust enrichment is not illegality but stultification: to recognize an entitlement to restitution would make nonsense of the refusal to enforce the contract. It is true that the restitutionary action nearly always (...) does prima facie have this stultifying tendency, for it will often operate as a safety net reducing the risks of illegal dealing or as a lever indirectly enforcing the illegal contract. However, this stultifying tendency can be neutralized by restricting the class of plaintiffs able to bring the restitutionary action and can be overridden if the effect of denying the restitutionary action would be to perpetrate a greater evil, as for instance by inflicting a wholly disproportionate penalty for the illegality. A stultification is an inexplicable contradiction. In cases such as these the seeming stultification is explained away. Restitution can then be allowed. (shrink)

This collection of essays, published to coincide with Tony Honore's sixty-fifth birthday, focuses on the areas where Honore's thought has made the most significant contribution: Roman law and jurisprudence. Included are essays by P.S. Atiyah, Zenon Bankowski, John Bell, Peter Birks, John W. Cairs, Hugh Collins, David Daube, W. M. Gordon, J. W. Harris Nicola Lacey, A. D. E. Lewis, Detlef Liebs, G. D. MacCormack, Neil MacCormick, G. Maher, Pieter Norr, Alan Rodger, and Peter Stein.

The use of quality of life (QOL) outcomes in clinical trials is increasing as a number of practical, ethical, methodological, and regulatory reasons for their use have become apparent. It is important, then, that QOL measurements and differences between QOL scores be readily interpretable. We study interpretation in two contexts: when determining QOL and when basing decisions on QOL differences. We consider both clinical situations involving individual patients and research contexts, e.g., randomized clinical trials, involving groups of patients. We note (...) the ethical importance of such understanding: proper interpretation and communication facilitate health care decision making. Communication that facilitates interpretation is of moral significance since better communication can attenuate ethical problems and inform choices. Much of what is communication worthy about QOL assessments is determined by the particular QOL instrument used in the assessment and how it is administered. In practice, these choices will be driven by the purpose of the assessment, but, it is argued, to maximize understanding, we should combine the information garnered from traditional standardized QOL instruments, from individualized QOL assessments, and from a recently proposed dialogic paradigm, where QOL is determined by shared conversation regarding the interpretation of texts. And, while some studies can surely succeed using abbreviated methods of administration (e.g., postal surveys may suffice for certain purposes), we will focus on methods of administration involving interviewer–respondent interaction. We suggest that during the QOL elicitation process, interviewer and respondent should engage in a two-way conversation in order to achieve a shared understanding of the “answers” to QOL “questions” and, finally, to reach a shared interpretation of the individual’s QOL. (shrink)

The aim of this paper is to present and evaluate a specific critical discussion of Peter Singer's view on philanthropy. This critique of Singer's position takes several forms, and here we focus on only two of these. First of all, it is claimed that philanthropy (based upon the giving up of luxury goods) should be avoided, because it harms the poor. As we shall see this is a view defended by Andrew Kuper. However, philanthropy is also accused of harming (...) the poor by being sub-optimal and standing in the way of the more effective and lasting poverty relief brought about by changes in the political and economic system. This second complaint is defended by, among others, Paul Gomberg, Anthony Langlois and David Schweickart, as well as Kuper. To our knowledge, little systematic work has been done on the presentation and evaluation of theses objections to philanthropy. In what follows, the objections are dealt with in connection with private donations made by individuals, as this is the focus, and target, of the philosophers/scientists we wish to discuss. (shrink)

Peter Brian Herrenden Birks 1941-2004Hugh Redwald Dacre 1914-2003William Hugh Clifford Frend 1916-2005John Andrew Gallagher 1919-1980Philip Grierson 1910-2006Stuart Newton Hampshire 1914-2004William McKane 1921-2004John Malcolm Sabine Pasley 1926-2004Benjamin John Pimlott 1945-2004Robert Duguid Forrest Pring-Mill 1925-2005John Edgar Stevens 1921-2002Peter Strawson 1919-2006Henry William Rawson Wade 1918-2004Alan Harold Williams 1927-2005Bernard Arthur Owen Williams 1929-2003John James Wymer 1928-2006.

Sixteen obituaries of recently deceased Fellows of the British Academy: Peter Birks; Lord Dacre of Glanton; William Frend; John Gallagher; Philip Grierson; Stuart Hampsire; William McKane; Sir Malcolm Pasley; Ben Pimlott; Robert Pring-Mill; John Stevens, Peter Strawson; Sir William Wade; Alan Williams; Sir Bernard Williams and John Wymer.

Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which (...) Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’.In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal. (shrink)

Sixteen obituaries of recently deceased Fellows of the British Academy: Peter Birks; Lord Dacre of Glanton; William Frend; John Gallagher; Philip Grierson; Stuart Hampsire; William McKane; Sir Malcolm Pasley; Ben Pimlott; Robert Pring-Mill; John Stevens, Peter Strawson; Sir William Wade; Alan Williams; Sir Bernard Williams and John Wymer.

In recent years restitution scholars have expended considerable energy in attempting to reveal the logical structure of the law of proprietary remedies. That project advances on the assumption that the strange rhetoric that pervades this area of law can be stripped away to reveal restitutionary principles. However, the doctrines in question have proved resistant to such endeavors. An appreciation of why this is so requires recognition of the very real anxiety generated by the judicial readjustment of property rights that takes (...) place in this area of law. The use of metaphors, fictions and evidential presumptions that characterizes the law tracing, subrogation and the provision of proprietary relief for wrongs serves to assuage this anxiety by manufacturing the appearance that these remedies are perfectly conventional instances of the enforcement of pre-existing property or consensual transfers of property. However, these property rites have a logic of their own - a logic that influences and constrains the development of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the abstruse rhetoric found in this area and reveal the restitutionary substructure of the law of proprietary remedies and makes it impossible to neatly reduce this field to a set of restitutionary principles. This is illustrated by the work of Professor Peter Birks, which represents the most comprehensive attempt to cut away the substructure of the law of proprietary remedies. In Birks' work this process has merely resulted in old metaphors being replaced with new ones. Ultimately, we must accept that if re are to rationalize this area we must be prepared to engage directly with the policy issues that arise in this context. (shrink)

That there exists a law of restitution concerned with reversing unjust enrichments is widely considered to be uncontroversial. However, the once orthodox view that unjust enrichment explains all instances of restitutionary liability is fast becoming a minority position. Indeed, the ability of ‘unjust enrichment’ to account for all restitutionary claims has been doubted by many of those who fought most strongly for its recognition as an independent head or source of liability, chief amongst these Professor Peter Birks. Because (...) of this, while there is widespread acceptance that unjust enrichment plays some role within the law of restitution, there is considerable uncertainty as to what this exact role is, so much so that what is meant by unjust enrichment can be seen to be in doubt. Beginning with an examination of Birks’ understanding of unjust enrichment and the classificatory scheme into which it slots, this article addresses the question of what role a conception of unjust enrichment can and should play in presenting and justifying the law of restitution. (shrink)

Keith Thomas: Gerald Edward Aylmer, 1926-2000 Adrian Hollis: William Spencer Barrett, 1914-2001 Bruce Williams: Charles Frederick Carter, 1919-2002 Malcolm Mackintosh: John Erickson, 1929-2002 J. H .R. Davis: Raymond William Firth, 1901-2002 F. M. L. Thompson: Hrothgar John Habakkuk, 1915-2002 A. W. Price: Richard Mervyn Hare, 1919-2002 Hugh Lloyd-Jones: Geoffrey Stephen Kirk, 1921-2003 Michael Lapidge and Peter Matthews: Vivien Anne Law, 1954-2002 Ann Moss: John Lough, 1913-2000 Terence Cave: Ian Dalrymple McFarlane, 1915-2002 Ludwig Paul: David Neil MacKenzie, 1926-2001 Peter (...) Birks: John Kieran Barry Moylan Nicholas, 1919-2002 Jonathan Shepard: Dimitri Dimitrievich Obolensky, 1918-2001 David Cannadine: John Harold Plumb, 1911-2001 Daniel Waley: Nicolai Rubinstein, 1911-2002 Ian Wood: John Michael Wallace-Hadrill, 1916-1985 R. G. M. Nisbet: William Smith Watt, 1913-2002 G. W. Bernard: Richard Bruce Wernham, 1906-1999. (shrink)

This is an interview with Professor Lynda Birke, one of the key figures of feminist science studies. She is a pioneer of feminist biology and of materialist feminist thought, as well as of the new and emerging field of hum-animal studies. This interview was conducted over email in two time periods, in the spring of 2008 and 2010. The format allowed for comments on previous writings and an engagement in an open-ended dialogue. Professor Birke talks about her key arguments and (...) outlooks on a changing field of research. The work of this English biologist is typical of a long and continuous feminist engagement with biology and ontological matters that reaches well beyond the more recently articulated ‘material turn’ of feminist theory. It touches upon feminist issues beyond the usual comfort zones of gender constructionism and human-centred research. Perhaps less recognized than for instance the names of Donna Haraway or Karen Barad, Lynda Birke’s oeuvre is part of the same long-standing and twofold critique from feminist scholars qua trained natural scientists. On the one hand, theirs is a powerful critique of biological determinism; on the other, an acutely observed contemporary critique of how merely cultural or socially reductionist approaches to the effervescently lively and biological might leave the corporeal, environmental or non-human animal critically undertheorized within feminist scholarship. In highlighting the work and arguments of Lynda Birke, it is hoped here to provide an accessible introduction to the critical questions and challenges that circumvent contemporary discussions within feminist technoscience as theory and political practice. (shrink)

Birke, a feminist biologist who has written extensively on the connections between feminism and science, seeks to bridge the gap between feminist cultural analysis and science by looking "inside" the body, using ideas in anatomy and physiology to develop the feminist view that the biological body is socially and culturally constructed. She rejects the assumption that the body's functioning is fixed and unchanging, claiming that biological science offers more than just a deterministic narrative of how nature works. Annotation copyrighted by (...) Book News, Inc., Portland, OR. (shrink)

With his ‘event-based classification’, the late Peter Birks provided a coherent and principled framework for the civil law of obligations. In this article, ‘restitution’ is considered in the context of his taxonomy and two main propositions are advanced. The first proposition is that ‘gain-related recovery’ is the most adequate description of restitution as a legal response. The second proposition is that the term ‘restitution’ qualifies the mechanism of taking away the defendant's benefit without any direct reference to the (...) immediate purpose of the award and therefore has both a ‘giving up’ and a ‘giving back’ function. Those theories which distinguish these two functions, it is argued, confuse the mechanism of the right realized with the aim of the response awarded. Restitution as a legal response can be applied to reach different aims, such as giving back wealth mistakenly transferred by the claimant to the defendant or surrendering profits wrongfully obtained by the defendant. Yet, the right to restitution which is realized in court operates always in the same fashion: it transfers to the claimant wealth up to the level of the defendant's benefit. This interpretation tackles the criticism of those favourable to ‘disgorgement’, that is ‘giving up’, as an independent legal response and shows that their concerns are justified, but do not affect the consistency of the event-based classification. (shrink)

Crutchfield and Redinger (2024) argue that, ceteris paribus, it is morally worse to deploy a restraint that undermines a basic liberty than one that does not.1 This is a plausible view, and is like...

The book then addresses the human/animal opposition implicit in much feminist theorizing, arguing that the opposition helps to maintain the essentialism that feminists have so often criticized. The final chapter brings us back from ideas of what 'the animal' is, to ask how these questions might relate to environmental politics, including ecofeminism and animal rights.

Dominic Wilkinson’s defence of identity-relative paternalism raises many important issues that are well worth considering. In this short paper, I will argue that there could be two important differences between the first-party and third-party cases that Wilkinson discusses, namely, a difference in associative duties and how the decision relates to the decision maker’s own autonomous life. This could mean that identity-relative paternalism is impermissible in a greater number of cases than he suggests.

This paper discusses the concept of social affordances in relation to social theory. Our point of departure is the growing literature which posits, in one way or another, that affordances may be seen as social, or cultural or similar. Across the literature on social affordances, it is thus emphasized how perception is shaped within human econiches, how it is fundamentally social, historical, and cultural, but limited direct engagement with decades of scholarship within the social sciences on many of these same (...) topics. This paper thus discusses three key themes for theories of social affordances, exploring sociological perspectives on meaning, place and power, arguing that there may be a difficult, yet fruitful, potential for not just an ecological psychology, but an ecological social science. (shrink)

How should we punish criminal offenders? One prima facie attractive punishment is administering a mandatory neurointervention—interventions that exert a physical, chemical or biological effect on the brain in order to diminish the likelihood of some forms of criminal offending. While testosterone-lowering drugs have long been used in European and US jurisdictions on sex offenders, it has been suggested that advances in neuroscience raise the possibility of treating a broader range of offenders in the future. Neurointerventions could be a cheaper, and (...) more effective method of punishment. They could also be more humane. Nevertheless, in this paper we provide an argument against the use of mandatory neurointerventions on offenders. We argue that neurointerventions inflict a significant harm on an offender that render them a morally objectionable form of punishment in a respect that incarceration is not. Namely, it constitutes an objectionable interference with the offender’s mental states. However, it might be thought that incarceration also involves an equally objectionable interference with the offender’s mental states. We show that even if it were the case that the offender is harmed to the same extent in the same respect, it does not follow that the harms are morally equivalent. We argue that if one holds that intended harm is more difficult to justify than harm that is unintended but merely foreseen, this means neurointerventions could be morally objectionable in a significant respect that incarceration is not. (shrink)

Traditional means of crime prevention, such as incarceration and psychological rehabilitation, are frequently ineffective. This collection considers how crime preventing neurointerventions could present a more humane alternative but, on the other hand, how neuroscientific developments and interventions may threaten fundamental human values.

In this paper, I argue against the commonly held view that paternalism is all things considered wrong when it interferes with a person’s autonomy. I begin by noting that the plausibility of this view rests on the assumption that there is a morally relevant difference in the normative reasons concerning an intervention in a person’s self-regarding actions and an intervention in his other-regarding actions. I demonstrate that this assumption cannot be grounded by wellbeing reasons, and that autonomy-based reasons of non-interference (...) also cannot adequately explain the difference. Following this, I propose that the difference in the reasons related to an intervention in a person’s self-regarding actions and an intervention in his other-regarding actions can be explained by the value of holding a person responsible for his choices. Nonetheless, this does not result in paternalistic behavior that interferes with autonomy being all things considered wrong. Instead, I show that the reason to hold a person responsible for a diminution of his wellbeing does not necessarily defeat the wellbeing reasons that count in favor of paternalistic behavior. (shrink)

In the USA and England and Wales, involuntary treatment for mental illness is subject to the constraint that it must be necessary for the health or safety of the patient, if he poses no danger to others. I will argue against this necessary condition of administering treatment and propose that the category of individuals eligible for involuntary treatment should be extended. I begin by focusing on the common disorder of schizophrenia and proceed to demonstrate that it can be a considerable (...) harm to a person's life without causing the person to be a danger to himself. I illuminate this claim by constructing a thought experiment concerning a person who slips on a banana peel and falls into a malfunctioning version of Robert Nozick's experience machine. I propose that the reasons why we should remove the person from the machine are the same reasons why we should administer involuntary treatment to individuals with schizophrenia. I rebut three objections to the analogy and conclude that if we believe that we have a duty to provide treatment for reasons relating to a person's wellbeing, it follows that we should reject the health or safety requirement and instead broaden the category of individuals who are eligible for involuntary treatment. (shrink)

New ideas are seldom received with moderation. When Spengler's Decline of the West appeared it was greeted with wild enthusiasm, which collapsed like a pricked bubble under criticism. Now that Toynbee, a generation later, has taken up the theme, there seems to be a determination not to be caught a second time. His critics have no wish to be unfair, and much of what they say is true enough; but to anybody who has a sympathetic understanding of what he is (...) attempting most of it seems entirely irrelevant and misleading. Toynbee's critics fall broadly into two classes—those for whom he says too little, and those for whom he says too much. In the first class are those who complain that he does not define his civilizations, that he does not say whether he is for or against Christianity, or that he does not explain how the deterministic aspects of his results can be reconciled with his liberalism and his avowed belief in free will. Yet if Toynbee had given precise answers to these and other questions, if he had come forward with a cut-and-dried philosophical system, these same critics might well have been the first to complain that he was imposing a priori conceptions on the facts of history—a charge that has been made against every philosophy of history, and one which it is very difficult to refute. Surely we can respect the integrity of a historian who declines to go beyond the facts, or adopt opinions before compelled by the evidence. (shrink)

The book defines and critically discusses the following five principles: the harm principle, legal paternalism, the offense principle, legal moralism and the dignity principle of criminalization. The book argues that all five principles raise important problems that point to rejections (or at least a rethink) of standard principles of criminalization. The book shows that one of the reasons why we should reject or revise standard principles of criminalization is that even the most plausible versions of the harm principle and legal (...) paternalism that have been offered so far are rendered redundant by general moral theories. Furthermore, it demonstrates that the other three principles (or versions thereof), the offense principle, legal moralism and the dignity principle of criminalization, can either be covered by the harm principle, thus making these principles also redundant, or be seen to have what look like other unacceptable implications (e.g. that versions of legal moralism are based on speculative and incorrect empirical assumptions or violate what is called the criminological levelling-down challenge). As such, there is reason to move beyond traditional principles of criminalization, and instead to investigate alternative principles the state should be guided by when attempting to justify which kinds of conduct should be criminalized. Moreover, this book presents and defends such a principle – the utilitarian principle of criminalization. (shrink)

Paternalistic behaviour directed towards a person’s informed and competent decisions is often thought to be morally impermissible. This view is supported by what we can call the Anti-Paternalism Principle. While APP might seem plausible when employed to show the wrongness of paternalism by the state, there are some cases of paternalistic behaviour between private, informed, and competent individuals where APP seems mistaken. This raises a difficulty for supporters of APP. Either they need to reject APP to accommodate our intuitions in (...) these cases, or provide grounds for thinking that paternalistic behaviour between certain private individuals is different in a morally relevant sense. In this paper, I explore several possible morally relevant differences, and find all of them unsatisfactory as grounds for maintaining the plausibility of APP. (shrink)

This article considers how scientists involved in animal experimentation attempt to defend their practices. Interviews with over 40 scientists revealed that, over and above direct criticisms of the antivivisection lobby, scientists used a number of discursive strategies to demonstrate that critics of animal experimentation are ethically and epistemologically infenor to British scientific practitioners. The scientists portrayed a series of negative "others" such as foreign scientists, farmers, and pet owners. In this manner, they attempted to create a "socioethical domain" which rhetorically (...) insulated them from criticism while simultaneously problematizing the critiques of the anti- animal-experimentation public. Some of the implications for relations between science and the public, especially regarding scientific credibility, are discussed. (shrink)

Embedding Human Rights in business practice is a challenge many multinational companies have to deal with to avoid reputational risks or to comply with soft law requirements. However, in doing so, the normative concept of corporate human rights obligations is both legally and ethically imprecise and the “UN Guiding Principles on Business and Human Rights” are just partly helpful. Therefore, it is asked and analyzed, if legal respectively ethical dogmatism or specific sustainability market mechanisms can provide guidance and clarity. The (...) examination however reveals legally paradox results. Not legitimized institutions might restrict companies unreasonably. From this perspective, it remains unclear, for which human rights behavior they are held accountable. A corporate human rights approach therefore should be aware of that and thoroughly chosen. (shrink)

Building on research conducted in feminist organizations in Vancouver, British Columbia, on the unceded territories of the xʷməθkʷəy̓əm (Musqueam), Sḵwx̱wú7mesh (Squamish), and səlilwətaɬ (Tsleil-Waututh) Nations, this paper explores the role, relationship, and responsibility of advocating for antiracism and social justice in the context of antiracism projects in feminist nonprofit organizations. In doing so this paper asks: What do antiracism projects look like in feminist organizations? And how are these projects informed or interrupted by racialized and Indigenous activists within these spaces? (...) Using critical race theory’s composite counterstory, this paper uses storytelling methodologies to understand how racialized settlers and Indigenous folks can collaborate and thrive – as they have been doing – on occupied unceded territories in Canada. Based on a series of interviews with racialized and Indigenous activists engaging in feminist nonprofit organizations, these stories shed light on contemporary realities of colonization, including collaboration within white settler systems. (shrink)

L’aide médicale à mourir (AMM) devrait être légalisée au Canada à partir de mars 2024 pour les personnes dont la seule condition médicale sous-jacente est un trouble ou une maladie mentale (AMM MM-SCMS). Dans le cadre de l’élaboration de lignes directrices visant à assurer la sécurité et la cohérence de l’AMM MM-SCMS, il convient d’accorder une attention suffisante à l’interprétation de la terminologie ambiguë de la législation actuelle et de veiller à ce que ces interprétations soient fondées sur des principes (...) éthiques acceptables. (shrink)

Next SectionFive arguments are presented in favour of the proposal that people who opt in as organ donors should receive a tax break. These arguments appeal to welfare, autonomy, fairness, distributive justice and self-ownership, respectively. Eight worries about the proposal are considered in this paper. These objections focus upon no-effect and counter-productiveness, the Titmuss concern about social meaning, exploitation of the poor, commodification, inequality and unequal status, the notion that there are better alternatives, unacceptable expense, and concerns about the veto (...) of relatives. The paper argues that none of the objections to the proposal is very telling. (shrink)

In this paper, I consider the view that paternalism is wrong when it demeans or diminishes the paternalizee's moral status. I argue that we should reject the Moral Status Argument because it is both too narrow and too broad. It is too narrow because it cannot account for the wrongness of some of the most objectionable paternalistic interventions, namely, strong paternalistic interventions. It is too broad because it is unable to distinguish between wrongful paternalistic acts that are plausibly considered more (...) wrong than other wrongful paternalistic acts. (shrink)

Our bodies are ourselves: yet we are also more than our bodies. In the early years of “second‐wave” feminism in the West, embodiment was acknowledged implicitly in the action of women's health groups, and campaigns for reproductive rights. But simultaneously, bodies failed to enter our theorizing. Central to theorizing then was a distinction between “sex,” (which anatomically distinguishes males and females) from “gender” (the processes of becoming “woman” or “man”). Although recent feminist writing tends to decry that simple opposition, the (...) ghost of biology still haunts us: biological sex, the biological body, remain problematic concepts for feminist theorizing. (shrink)