In the past generation, restitution law has emerged as a global phenomenon. From its Oxbridge home, restitution migrated to the rest of the Commonwealth, and ongoing Europeanization projects have brought the common law of restitution into contact with the Romanist concept of unjust enrichment, further internationalizing this movement. In contrast, in the United States, scholarly interest in restitution, in terms of books, articles, treatises, symposia and courses on restitution, is meager. Similarly, while restitution, equity and tracing cases receive considerable treatment (...) at the highest levels of the English judiciary, US courts seem uninterested in these issues, rarely producing the theory-laden opinions that have become quite common in the House of Lords. The situation is particularly curious because restitution is generally thought to be the invention of late nineteenth-century American scholars. This article explains this divergence. I argue that the Commonwealth restitution discourse is largely a product of pre- or anti-realist legal thought which generates scepticism within the American academic-legal establishment. The article identifies the two dominant camps in American private law thought—left-leaning redistributionalists and the centre-right legal economists—and shows that neither has any use for the Commonwealth's discourse. I conclude by analysing the emerging drafts of the Restatement of Restitution and forecast the future of American restitution law. (shrink)

The New Rhetoric is founded on the idea that since “argumentation aims at securing the adherence of those to whom it is addressed, it is, in its entirety, relative to the audience to be influenced,” says Chaïm Perelman and L. Olbrechts-Tyteca, and they rely, in particular, for their theory of argumentation on the twin concepts of universal and particular audiences: while every argument is directed to a specific individual or group, the orator decides what information and what approaches will achieve (...) the greatest adherence according to an ideal audience. This ideal, Perelman explains, can be embodied, for example, "in God, in all reasonable and competent men, in the man deliberating or in an elite.” Like particular audiences, then, the universal audience is never fixed or absolute but depends on the orator, the content and goals of the argument, and the particular audience to whom the argument is addressed. These considerations determine what information constitutes "facts" and "reasonableness" and thus help to determine the universal audience that, in turn, shapes the orator's approach. /// The adherence of an audience is also determined by the orator's use of values, a further key concept of the New Rhetoric. Perelman's treatment of value and his view of epideictic rhetoric sets his approach apart from that of the ancients and of Aristotle in particular. Aristotle's division of rhetoric into three genres–forensic, deliberative, and epideictic–is largely motivated by the judgments required for each: forensic or legal arguments require verdicts on past action, deliberative or political rhetoric seeks judgment on future action, and epideictic or ceremonial rhetoric concerns values associated with praise or blame and seeks no specific decisions. For Aristotle, the epideictic genre was of limited importance in the civic realm since it did not concern facts or policies. Perelman, in contrast, believes not only that epideictic rhetoric warrants more attention, but that the values normally limited to that genre are in fact central to all argumentation. "Epideictic oratory," Perelman argues, "has significant and important argumentation for strengthening the disposition toward action by increasing adherence to the values it lauds.” These values are central to the persuasiveness of arguments in all rhetorical genres since the orator always attempts to "establish a sense of communion centered around particular values recognized by the audience.”. (shrink)

Titel oversat: Islamisk, medicinsk etik i det tyvende århundrede.

This book comprises a series of studies devoted to an analytic examination of reasoning in the field of conduct. The first is analysis of the idea of justice undertaken in a spirit of positivism; the series continues in a different vein necessitated by compelling obligation the author found himself under to work out a logic of value judgments. This logic is in fact the Rhetoric and Topics of antiquity: the author's "Traité de l' Argumentation gave this new life, and the (...) present work demonstrates its philosophical importance. (shrink)

This book discusses the justifications and limits of cultural nationalism from a liberal perspective. Chaim Gans presents a normative typology of nationalist ideologies, distinguishing between cultural liberal nationalism and statist liberal nationalism. Statist nationalisms argue that states have an interest in the cultural homogeneity of their citizenries. Cultural nationalisms argue that people have interests in adhering to their cultures and in sustaining these cultures for generations. Gans argues that freedom- and identity-based justifications for cultural nationalism common in literature can (...) only support the adherence thesis, while the historical thesis could only be justified by the interest people have in the long-term endurance of their personal and group endeavors. The Limits of Nationalism examines demands often made in the name of cultural nationalism, such as claims for national self-determination, historical rights claims to territories and demands entailed by cultural particularism as opposed to cultural cosmopolitanism. (shrink)

Postmortem examinations have recently become common practice in Western medicine: they are used to verify the cause of death and to obtain additional scientific information on certain diseases, as well as to train medical students. For religious people of the monotheistic faiths postmortems present several ethical questions even though the advantages attributed to postmortems in the West are also acknowledged by Jews, Christians and Muslims. The Islamic way of dealing with such questions will be surveyed via contemporary fatawa (legal opinions) (...) issued primarily by Egyptian scholars; Islamic law, which was formulated in the eighth to ninth centuries, did not speak of postmortems. I will therefore depict the means whereby contemporary scholars approach postmortems in the absence of clear legal reference. The difficulties that postmortems create for Muslims at present will be weighed against some shar i instructions which may help circumvent them. While the ethical and religious debate continues, postmortems seem to be accepted but not, however, without certain reservations. (shrink)

Can states' immigration policies favor groups with whom they are culturally and historically tied? I shall answer this question here positively, but in a qualified manner. My arguments in support of this answer will be of distributive justice, presupposing a globalist rather than a localist approach to justice. They will be based on a version of liberal nationalism according to which individuals can have fundamental interests in their national culture, interests which are rooted in freedom, identity, and especially in ensuring (...) the meaningfulness of their endeavor. The prevalent means for protecting these interests is the right to national self-determination. Many believe that this right should be conceived of as a right to a state. I shall show that this conception of self-determination implies purely nationalist immigration policies. I shall present reasons for rejecting such policies, reasons which together with other reasons form a strong case against the statist interpretation of the right to self-determination. They form a strong case in favor of understanding self-determination as a bundle of privileges to which nations are entitled within the states dominating their homelands. Some of these privileges have to do with immigration policies. I shall argue for three principles which should regulate these immigration privileges and discuss the relation between them and Israel's Law of Return. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy and Rhetoric 36.3 (2003) 189-206 [Access article in PDF] First Philosophies and Regressive Philosophy Chaïm Perelman "As a crystal reconstitutes itself from one of its particles, all philosophy creates itself from the idea of an open dialectic, and carries, in itself, the same dialectical character." —Ferdinand Gonseth A number of metaphysicians, including Bergson and Heidegger, consider metaphysics the only knowledge of consequence and use the word to refer (...) to their own philosophies. But a large number of eminent metaphysicians, among them Descartes, Spinoza, Kant, Fichte and Hegel had only disdain for metaphysics and used the word to discredit the philosophy of their adversaries. D'Alembert (602-604) once noted that those referred to as metaphysicians had little regard for one another. "I have no doubt," he added, "that this title will soon be an insult to our great minds, just as the name sophist which, although it meant wise, was debased in Greece by those who bore it and rejected by the true philosophers."The preceding remarks should, I think, convince the few who would still doubt it that declaring oneself an adversary of metaphysics does not mean that one does not do metaphysics. On the contrary, the very fact of opposing a certain conception of metaphysics presupposes that one advocates another conception of metaphysics; this needs to be made explicit, if it is only implicit. In a very interesting study, Mr. Everett W. Hall has recently analyzed the metaphysical assumptions of four types of positivism (Mach, Comte, Watson, Carnap). Even without this analysis the conclusion is predictable; he who is opposed to a certain manner of treating a problem remains himself within the same problematic. Indeed, such oppositions produce a continuous expansion and dialogue about the meaning of the word "metaphysics." This happens not through an automatic and necessary dialectic, but through the dialectic directed by the philosopher's concerns.The first metaphysicians set forth a particular philosophy of being [être]; those opposed advocated a different philosophy of being. By expanding its meaning, Aristotle gave metaphysics its first dialectical movement and identified it as the study of being as being and ontology. Kantian criticism treats dogmatic metaphysics with disdain, and shows that all theories [End Page 189] of being must be preceded by a theory of knowledge: the first principles of philosophy would be those of epistemology and not those of ontology. Since Kant, and for more than a century, metaphysical debates would be about the primacy of ontology or epistemology, and the opposition to their variants, realism and idealism. Then, at the end of the nineteenth century, the debate broadened. Under the influence of pragmatism, the philosophy of values, and Bergsonism, a strong current of philosophical thinking developed, which integrated the theory of knowledge into a general theory of action. It proclaimed the primacy of a philosophy of action, philosophy of life, and philosophy of values. It is within a metaphysics broadened by these various developments that different conceptions of metaphysics will struggle to establish the primacy of their principles. But, despite their differences, all of these metaphysics can be considered first philosophies.Aristotle wrote a treatise on first philosophy, the first to be called metaphysics. First philosophies refer to any metaphysics that purports to determine first principles such as the fundamentals of being (ontology), of knowledge (epistemology), or of action (axiology). First philosophies position first principles as absolute and that they underlie all philosophical questions. The word "first" informs the argumentation used to establish the primacy of first philosophies. A principle is first when it comes before all others in a temporal, logical, epistemological or ontological order; the insistence on this point serves to emphasize its primacy or axiologic pre-eminence. That which is first or basic, that which precedes or presupposes all the rest, is also first in order of importance.As systematic metaphysics, first philosophies establish an interdependence among ontology, epistemology, and axiology. The course taken by first philosophies is determined by a starting point constituted by a necessary reality, a self-evident concept, or an absolute value before which one can... (shrink)

The legitimacy of the Zionist project--establishing a Jewish homeland in Palestine--has been questioned since its inception. In recent years, the voices challenging the legitimacy of the State of Israel have become even louder. Chaim Gans examines these doubts and presents an in-depth, evenhanded philosophical analysis of the justice of Zionism.

Modern science has undoubtedly become one the principal engines of economic growth, even though the epistemological status of scientific knowledge has been continuously contested. Leaving the philosophical problem of knowledge aside, this paper examines how scientific discovery contributes to the production of wealth. The analysis focuses on a recent achievement at the crossroads of chemistry, immunology and biotechnology: antibody catalysis. For this purpose, we develop a model of entrepreneurial work to explain how the discovery of natural products and processes generates (...) new economic opportunities. The proposed model is based on the assumption that scientists believe that the natural environment is a repository of 'natural capital'. Natural capital includes goods that are not made by humans but can be used to produce other goods and services. The belief in natural capital induces scientists to search for and identify a natural property that, in the specific cultural context of their work, is recognized as a valuable resource. The selection of such a property forms the initial phase of the discovery process. Certain research methods are then deployed to create novel empirical conditions within which the selected property is transformed into a specific good. The discovery of natural capital thus comprises a historically accountable entrepreneurial endeavour. (shrink)

The paper presents a simple game-theoretic model in which players decide on search procedures for a prize located in one of a set of labeled boxes. The prize is awarded to the player who finds it first. A player can decide on the number of (costly) search units he employs and on the order in which he conducts the search. It is shown that in equilibrium, the players employ an equal number of search units and conduct a completely random search. (...) The paper demonstrates that the search procedure is intrinsically inefficient. Journal of Economic Literature Classification Number: D83. (shrink)

The article examines how practices of inscription and structures of addressivity at a symbolic site provide implicit indexical means for establishing subjectivities and agencies. By examining a visitor book located in a national commemoration site in Jerusalem, Israel, the article first argues that inscribing practices themselves can function as implicit indexical mechanisms. In ritualized environments, inscribing assumes the function of a non-referential indexical because discourse is materially engraved unto a surround. These environments are also characterized by prescribed addressivity structures. The (...) article goes on to discern between a number of addressivity structures, evinced in visitors' aesthetisized entries. These structures serve as contextualizing cues and evince the ways visitors establish subjectivities and participation in national commemoration. Addressivity structures are shown to construct different types of social actors, and the spaces and temporalities within which they operate. Building on previous research on performance, the article shows how addressivity and inscription together supply the prerequisites for situated performances of identities and selves on inscribed and symbolic stages. (shrink)

Bakhtin famously argued that language-as-used is essentially dialogic. One pragmatic implication concerns how dialogicity is established in various contexts. In political discourse, polemic polyphony emerges from the juxtaposition of adversarial voices of political actors: a dialogue in which different voices index different ideological orientations. Polyphonic ensembles establish discoursal scenes and make them recognizable, enabling distinctions such as those between ‘us’ and ‘them’, and between heroes and villains. Overall, they assist speakers in the semiotic mediation of political relations.

This book examines the central questions concerning the duty to obey the law: the meaning of this duty; whether and where it should be acknowledged; and whether and when it should be disregarded. Many contemporary philosophers deny the very existence of this duty, but take a cautious stance toward political disobedience. This 'toothless anarchism', Professor Gans argues, should be discarded in favour of a converse position confirming the existence of a duty to obey the law which can be outweighed by (...) values and principles of political morality. Informed by the Israeli experience of political disobedience motivated by radically differing moral outlooks, the author sets out the principles which should guide our attitude to law and political authority even amidst clashing ideologies and irreconcilable moralities. This book will be of interest to students and scholars of law, philosophy and politics, and anyone concerned with the individual's responsibilties toward his or her political community. (shrink)

Combining ethnographic, semiotic, and performative approaches, this book examines texts and accompanying acts of writing of national commemoration. The commemorative visitor book is viewed as a mobilized stage, a communication medium, where visitors' public performances are presented, and where acts of participation are authored and composed. The study contextualizes the visitor book within the material and ideological environment where it is positioned and where it functions. The semiotics of commemoration are mirrored in the visitor book, which functions as a participatory (...) platform that becomes an extension of the commemorative spaces in the museum. The study addresses tourists' and visitors' texts, i.e. the commemorative entries in the book, which are succinct dialogical utterances. Through these public performances, individuals and groups of visitors align and affiliate with a larger imagined national community. Reading the entries allows a unique perspective on communication practices and processes, and vividly illustrates such concepts as genre, voice, addressivity, indexicality, and the very acts of writing and reading. The book's many entries tell stories of affirming, but also resisting the narrative tenets of Zionist national identity, and they illustrate the politics of gender and ethnicity in Israel society. The book presents many ethnographic observations and interviews, which were done both with the management of the site, and with the visitors themselves. The observations shed light on processes and practices involved in writing and reading, and on how visitors decide on what to write and how they collaborate on drafting their entries. The interviews with the site's management also illuminate the commemoration projects, and how museums and exhibitions are staged and managed. (shrink)

While the practice of Western medicine is known today to doctors of all ethnic and religious groups, its standards are subject to the availability of resources. The medical ethics guiding each doctor is influenced by his/her religious or cultural background or affiliation, and that is where diversity exists. Much has been written about Jewish and Christian medical ethics. Islamic medical ethics has never been discussed as an independent field of ethics, although several selected topics, especially those concerning sexuality, birth control (...) and abortions, have been more discussed than others. Islamic medical ethics in the 20th century will be characterised on the basis of Egyptian fatawa (legal opinions) issued by famous Muslim scholars and several doctors. Some of the issues discussed by Islamic medical ethics are universal: abortions, organ transplants, artificial insemination, cosmetic surgery, doctor-patient relations, etc. Other issues are typically Islamic, such as impediments to fasting in Ramadan, diseases and physical conditions that cause infringement of the state of purity, medicines containing alcohol, etc. Muslims' attitudes to both types of ethical issues often prove that pragmatism prevails and the aim is to seek a compromise between Islamic heritage and the achievements of modern medicine, as long as basic Islamic dogma is not violated. (shrink)

Committee protocols typically involve a deliberation stage in which members try to influence and convince other regarding the “right” decision. Beyond information exchange, such deliberations also aim to affect the preferences and the votes of other members. Using a model of social influence, we demonstrate how deliberation procedures affect the voting outcome and how different protocols of consultation by committees’ chairs may affect their decisions. We then analyze the ability of a “designer” to control the deliberation protocol and to manipulate (...) the deliberation procedure to increase the probability that the outcome he favors will be selected. (shrink)

Recent studies of the social and political meanings of English science in the 17th century have often included only a cursory inspection of Locke's work. Conversely, detailed studies of Locke's theory of knowledge have tended to refrain from taking into serious consideration the social context of English science in that period. The paper explores the contribution of Locke's conception of experience to the rise of experimental philosophy as a new social force. It shows that Locke elaborated a doctrine that rendered (...) human experience the natural and nurtured means by which agents could discharge their duty to God and realize their right in God's dominion. Locke's account of the production of empirical knowledge thus delineated a theocentric system of a moral economy, which dovetailed with current advertisements of the new vocation of experimental philosophy. More particularly, Locke's debt to Boyle is manifested in their shared imagery of experience as a divine gift. While Boyle sought to encourage polite society to participate in cultivating the experimenter's gift, Locke propagated the view that proper conduct in the public sphere hinged on the recognition of the experimenter's findings as a new source of authority in everyday life.Keywords: empiricism; experimental philosophy; ideology; moral economy; gift economy. (shrink)

fasc. 1. L'antiquité et le moyen-âge. fasc. 2. De Hobbes à nos jours.