Although Justice Scalia purported to be driven by originalism and precedent, his opinions in three education cases—Grutter v. Bollinger, Parents Involved v. Seattle School District, and United States v. Virginia —tell a different tale. In these cases, his arguments are difficult to defend on originalist grounds and, surprisingly, Justice Scalia himself makes no attempt to do so. Similarly, his views are difficult to square with precedent. It is hard to escape the conclusion that, in some of (...) his most noteworthy cases related to education, Justice Scalia was as results-oriented as the justices and judges he loved to criticize. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First (...) is the theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:TOWARD A THOMISTIC PERSPECTIVE ON ABORTION AND THE LAW IN CONTE:MPORARY AMERICA M. CATHLEEN KAVENY Yale University New Haven, Oonnecticut Introduction W;HEN THE SUPREME COURT handed down its abortion decision Webster v. Reproductive Health Services 1 in the summer of 1989, it was widely prel 109 S. Ct. 3040 (1989). All further citations to Webster will be given parenthetically in the text. To summarize the most significant aspects. of (...) the decision: A. Chief Justice Rehnquist authored an opinion of the Oourt (of the highest precedential value) which was joined by Justices White, Kennedy, Scalia, and O'Connor. The majority found the lower courts to be in error in striking down as unconstitutional the preamble to a Missouri statute which asserted that "the life -0f each human being begins at conception." The opinion of the Court also found that Missouri could constitutionally prohibit the use of public employees and facilities in the performance of abortions not necessary to save the mother's life. B. The Court also upheld the Missouri statute's provision requiring a. doctor to perform viability tests before aborting a fetus the doctor believes is of 20 or more weeks gestational age. In the plurality opinion (of less precedential value than an opinion -0f the Court, since it is not joined by a majority of the justices), Chief Justice Rehnquist, Justice White, and Justice Kennedy argued that since most fetuses are not viable at twenty weeks, the provision would impose substantial restrictions unrelated to the health of the mother upon what are, in fact, simply sec-0nd trimester abortions. Because they believed such restrictions to be in tension with Roe's trimester system, the plurality decided to abandon that system, along with its stipulation that the state's interest in unborn life became compelling only at viability. The plurality contended, however, that Webster presented no occasion for reconsidering Roe's holding, which deemed unconstitutional a statute prohibiting all abortions except those necessary to save the life of the mother. In a concurring opinion, Justice Scalia went further, arguing that the Court should explicitly overrule Roe v. Wade. On the other hand, Justice O'Connor, 848 344 M. CAT'HLEEN KAVENY dieted that this would exaicerbate a dangerously bitter social·struggle. In its 1973 decision Roe v. Wade (410 U.S. 113), the court had e1abo:raJted.a woman's right to abortion, and, in rthe sixteen years that fo11owed it, it ga,V'e that right unwavering support. Webster 'seemed to mark a retl.'eat from that support. The new scope it offered for state regulation of rubortion promised rto ignite gra,ss-roots forvor and a stiate..:by-state battle between those seeking rto maintain the abortion rights est1ab1isihed by Roe and its sequalia and those st:dving to limit the s1oope of these rights in 1 significant ways. Much of the criticism of Webster has fooused narrowly upon how weM the,decision has aiocorided with various views on the morality of abortion. Yet important 1as this issue is, thorough ethicaJ ana:lysis of Webster must address severa1l additional fac~ tors. The ethiicatl aidequacy of positive law, induding judicial interpretations of faw siuch as Webster, must he ev1alruated in terms of whetheir it aidvanices or impedes the common good. The common good requires not only that we consider the moml substance of legal requirements but tha:t we ailso attend to the manner in which law is made, promulgated, ml!d interpreted. Such an analysis is,sorely needed; it should. specify the severa1l factors involved in determining whether any given legal also concurring in the plurality's judgment, maintained that this provision of the statute could be upheld without any reconsideration of Roe, since it co· hered with that decision's recognition of the compelling state interest in viable fetal life. C. Justice Blackmun authored an opinion dissenting from the majority on the issues discussed above, and he was joined by Justices Brennan and Mar· shall. The thrust of his opposition is directed against the plurality's treatment of the viability testing,provisions. Blackmun first suggested that i.f understood according to the canons of proper statutory interpretation, these provisions unconstitutionally restrict the attending physician... (shrink)

In this chapter, I discuss the Endangered Species Act (ESA), along with explaining what the reader needs to know about species and about certain philosophical issues regarding species. I investigate how the late stalwart conservative Justice Antonin Scalia interpreted the fit between the Fish and Wildlife’s definition of harm in the Code of Federal Regulations and what the ESA implies about harm in a landmark Supreme Court case, Babbitt v. Sweet Home. Scalia argues that the FWS definition (...) of “harm” is inconsistent with the ESA. Here, I come to Scalia’s defense by responding to objections that have been made to his argument. In my response, I further fill out his argument and appeal to what I have written elsewhere about whether we harm individual nonhuman organisms or nonhuman species when we impair breeding behaviors in our various human-habitat expansion activities. This question is related to the following broader question prominent in the field of environmental ethics: whether it makes sense to say that we can harm populations or even species understood as meta-populations. (shrink)

Proposes a form of moral education that joins care and justice to nurture and develop the desirable moral sentiments for a more just world at the interpersonal, social, political economic, and environmental levels.

Professor Robert Alexy wrote a book whose avowed purpose is to refute the basic tenets of a type of legal theory which 'has long since been obsolete in legal science and practice'. The quotation is from the German Federal Constitutional Court in 1968. The fact that Prof Alexy himself mentions no writings in the legal positivist tradition [in English] later than Hart's The Concept of Law (1961) may suggest that he shares the court's view. The book itself may be evidence (...) to the contrary. After all why flog a dead horse? Why write a book to refute a totally discredited theory? Perhaps Alexy was simply unlucky. The burst of reflective, suggestive and interesting writings in the legal positivist tradition reached serious dimensions only in the years after the original publication of his book, when Waldron, Marmor, Gardner, Leiter, Shapiro, Murphy, Himma, Kramer, Endicott, Lamont, Dickson, Bix and others joined those who had made important contributions to legal theory in the positivistic tradition in the years preceding the original publication of Alexy's book: Lyons, Coleman, Campbell, Harris, Green, Waluchow and others, who are still among the main contributors to legal theory in the positivist tradition. It is a great shame that nothing in these writings influenced the arguments of the book. Perhaps this regret is misplaced. After all ‘positivism' in legal theory means, and always did mean, different things to different people. What Radbruch, one of Alexy's heroes, meant when he first saw himself as a legal positivist and then recanted was not the same as what 'legal positivism' means in Britain (and nowadays in the United States as well) among those who engage in philosophical reflection about the nature of law. Perhaps Alexy is simply addressing himself to a German audience, and refuting, or attempting to refute, legal theories of a kind identified in Germany as 'legal positivism'. Perhaps, though his references to Hart show that he does not intend it that way. My aims in this chapter are, however, reasonably clear. My main purpose is to explore whether any of Alexy's arguments challenge any of the views which I have advocated. Subsidiary aims are, first, to clarify why what Alexy says is legal positivism is not what is understood as such in the English speaking world, so that some of Alexy's sound points find no target; secondly, to try and clarify some of his arguments which I found, at least initially, rather obscure. Given the prominence of Alexy's book I will refer only to it, and will not consider his other publications. (shrink)

Contemporary philosophical pluralism recognizes the inevitability and legitimacy of multiple ethical perspectives and values, making it difficult to isolate the higher-order principles on which to base a theory of justice. Rising up to meet this challenge, Rainer Forst, a leading member of the Frankfurt School's newest generation of philosophers, conceives of an "autonomous" construction of justice founded on what he calls the basic moral right to justification. Forst begins by identifying this right from the perspective of moral philosophy. (...) Then, through an innovative, detailed critical analysis, he ties together the central components of social and political justice—freedom, democracy, equality, and toleration—and joins them to the right to justification. The resulting theory treats "justificatory power" as the central question of justice, and by adopting this approach, Forst argues, we can discursively work out, or "construct," principles of justice, especially with respect to transnational justice and human rights issues. As he builds his theory, Forst engages with the work of Anglo-American philosophers such as John Rawls, Ronald Dworkin, and Amartya Sen, and critical theorists such as Jürgen Habermas, Nancy Fraser, and Axel Honneth. Straddling multiple subjects, from politics and law to social protest and philosophical conceptions of practical reason, Forst brilliantly gathers contesting claims around a single, elastic theory of justice. (shrink)

What is fair? How and when can punishment be legitimate? Is there recompense for human suffering? How can we understand ideas about immortality or an afterlife in the context of critical thinking on the human condition? In this book L. E. Goodman presents the first general theory of justice in this century to make systematic use of the Jewish sources and to bring them into a philosophical dialogue with the leading ethical and political texts of the Western tradition. Goodman (...) takes an ontological approach to questions of natural and human justice, developing a theory of community and of nonvindictive yet retributive punishment that is grounded in careful analysis of various Jewish sources—biblical, rabbinic, and philosophical, His exegesis of these sources allow Plato, Kant, and Rawls to join in a discourse with Spinoza and medieval rationalists, such as Saasidah and Maimonides, who speak in a very different idiom but address many of the same themes. Drawing on sources old and new, Jewish and non-Jewish, Goodman offers fresh perspectives on important moral and theological issues that will be of interest to both Jewish and secular philosophers. (shrink)

Countering the present trend in the discourse on justice wherein human reason is perceived and marginalized as an embarrassment to justice and the trend to reject the concept of formal justice, this paper argues that there is formal justice and the essence of justice is setting things right and setting righteousness to stand straight. By this token, justice means the rule of reason, not the rule of power and desire, and the ethics of (...) class='Hi'>justice differs fundamentally from the ethics of care/benevolence. The popular assumption that justice as the rule of reason is incompatible with the idea of justice as accommodating diversity is unjustified. The paper joins the present discourse on justice from a historical perspective. It examines the historical Confucian and neo-Confucian concept of justice in a way of its dialogues with other Western concepts of justice such as Plato's concept of justice. (shrink)

Worldviews are windows to the world. They can be static in referring to visual connotations as suggested by their name, but they can hold a dynamic and genetic view as well. As such, they imply a fundamental cognitive orientation, involving selection, interpretation and interaction with the world. What matters, in this view, is a kind of sense-making or semiotization of the world. -/- The semiotization of the “sonic world”, accordingly, can be approached from different epistemological positions: is music reducible to (...) symbolic labels that function as names, or is it only music when it sounds? And is music to be considered as an artifact that is out there or as something that must be listened to in order to make sense? Rather than joining these discussions, I propose to broaden the focus and to embrace psychological claims as well. Though psychology is not commonly considered as semiotics’ companion theory of truth, there are points of convergence with respect to the hierarchical arrangement of epistemic interactions with the sounds: there is a lower level processing of sensory input (sensation), a somewhat higher level (perception) which involves a first level of sense-making—mostly at a preverbal level—, and a higher level of sense-making which is commonly labeled as cognition. -/- In what follows I will argue for a cumulative model with lower levels not being substituted by higher ones, but with higher levels being superposed on them. Music, in fact, is a sounding art with the richness of it sonorous unfolding as one of its major characteristics. Music processing, therefore, should keep step with the music as it unfolds over time, in a dynamic tension that does justice to the level of sensation as well as to the listener’s continuous epistemic interactions with the sounds. (shrink)

Until recently, struggles for justice proceeded against the background of a taken-for-granted frame: the bounded territorial state. With that "Westphalian" picture of political space assumed by default, the scope of justice was rarely subject to open dispute. Today, however, human-rights activists and international feminists join critics of structural adjustment and the World Trade Organization in challenging the view that justice can only be a domestic relation among fellow citizens. Targeting injustices that cut across borders, they are making (...) the scale of justice an object of explicit struggle. Inspired by these efforts, Nancy Fraser asks: What is the proper frame for theorizing justice? Faced with a plurality of competing scales, how do we know which one is truly just? In exploring these questions, Fraser revises her widely discussed theory of redistribution and recognition. She introduces a third, "political" dimension of justice—representation—and elaborates a new, reflexive type of critical theory that foregrounds injustices of "misframing." Engaging with thinkers such as Jürgen Habermas, John Rawls, Michel Foucault, and Hannah Arendt, she envisions a "postwestphalian" mapping of political space that accommodates transnational solidarity, transborder publicity, and democratic frame-setting, as well as emancipatory projects that cross borders. The result is a sustained reflection on who should count with respect to what in a globalizing world. (shrink)

How is distributive justice possible with respect to immigration if political decisions about entry and membership cannot be grounded in the symmetry of a prior commonality, human or otherwise, that could guarantee reciprocal relations between members and nonmembers? This paper deals with both aspects of this question. Initially, it engages critically with Seyla Benhabib's plea for ‘dialogical universalism,’ showing why the strong discontinuity between political and moral reciprocity precludes understanding distributive justice as the process of mediating between political (...) particularity and moral universality. Subsequently, it suggests that a way out of this conceptual and normative impasse can be found in the fact that boundaries create a double asymmetry. This double asymmetry is constitutive for the ‘dia’ of the political dialogue that separates and joins members and nonmembers. This ‘in between,’ which eludes control by the parties to a dialogue, is the realm of distributive justice. (shrink)

Climate adaptation and resilience scholars are struggling to address distributive and procedural justice in climate resilience efforts. While the capability approach (CA) has been widely appraised as a suitable justice basis for this context, there are few detailed studies assessing this possibility. This paper addresses this gap by advancing discussions about the prospects of the CA for guiding justice work in climate resilience. With its emphasis on the final value and mutually irreducible character of the concrete beings (...) and doings of individuals, we find the CA relevant for tackling salient aspects of adaptation, such as the multi-faceted and locally specific nature of climate vulnerability. We also present and discuss a capability application that has particular relevance for including distributive and procedural justice considerations in climate resilience. On the other hand, we find that extant arguments in support of the CA neglect the limitations of the CA and some dilemmas involved in applying it, also overestimating the differences between the CA and other justice approaches, especially those based on resources and needs. These problems lead us to advise against treating the CA as a one-size-fits-all solution to the ills of climate resilience and they further raise a need for joining efforts with complementary approaches. -/- . (shrink)

This paper argues that extortion is a clear threat in intergenerational relations, and that the threat is manifest in some existing proposals in climate policy and latent in some background tendencies in mainstream moral and political philosophy. The paper also claims that although some central aspects of the concern about extortion might be pursued in terms of the entitlements of future generations, this approach is likely to be incomplete. In particular, intergenerational extortion raises issues about the appropriate limits to the (...) sway of central values such as welfare and distributive justice. We should be wary of ways in which such values invite us to buy off, or perhaps to join, an intergenerational climate Mafia. (shrink)

The singular message in Global Health Law is that we must strive to achieve global health with justice—improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health—public health, universal health coverage, and the social determinants of health—while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity. A (...) new global health treaty grounded in the right to health and aimed at health equity—a Framework Convention on Global Health —stands out for its possibilities in helping to achieve global health with justice. This far-reaching legal instrument would establish minimum standards for universal health coverage and public health measures, with an accompanying national and international financing framework, require a constant focus on health equity, promote Health in All Policies and global governance for health, and advance the principles of good governance, including accountability. While achieving an FCGH is certainly ambitious, it is a struggle worth the efforts of us all. The treaty’s basis in the right to health, which has been agreed to by all governments, has powerful potential to form the foundation of global governance for health. From interpretations of UN treaty bodies to judgments of national courts, the right to health is now sufficiently articulated to serve this role, with the individual’s right to health best understood as a function of a social, political, and economic environment aimed at equity. However great the political challenge of securing state agreement to the FCGH, it is possible. States have joined other treaties with significant resource requirements and limitations on their sovereignty without significant reciprocal benefits from other states, while important state interests would benefit from the FCGH. And from integrating the FCGH into the existing human rights system to creative forms of compliance and enforcement and strengthened domestic legal and political accountability mechanisms, the treaty stands to improve right to health compliance. The potential for the FCGH to bring the right to health nearer universal reality calls for us to embark on the journey towards securing this global treaty. (shrink)

Cosmopolitan War is characterized by a tension between moral demandingness and moral permissiveness. On the one hand, Fabre is strongly committed to the value of each and all human beings as precious individuals whose value does not depend on their national or other affiliation. This commitment leads to serious constraints on what may be done to others in both individual and national self-defense. Yet the book is also unambiguously permissive. It opens the gate to far more wars than traditional just (...) war theory would ever permit, in particular to what Fabre has dubbed ‘subsistence wars’, and it rejects the most fundamental constraint imposed by traditional jus in bello, namely, the prohibition against the deliberate killing of civilians. While both the demanding and the permissive aspects of the book seem troublesome to me, the latter seem more so and most of my paper is devoted to a critical examination of them. In the last part of the paper, I point to a different outlook to the one defended in the book and try to show that this outlook is less foreign to Fabre’s outlook than one might expect. (shrink)

Originalism as Faith presents a comprehensive history of the originalism debates. It shows how the doctrine is rarely used by the Supreme Court, but is employed by academics, pundits and judges to maintain the mistaken faith that the Court decides cases under the law instead of the Justices' personal values. Tracing the development of the doctrine from the founding to present day, Eric J. Segall shows how originalism is used by judges as a pretext for reaching politically desirable results. The (...) book also presents an accurate description and evaluation of the late Justice Scalia's jurisprudence and shows how he failed to practice the originalism method that he preached. This illuminating work will be of interest to lawyers, law students, undergraduates studying the Court, law professors and anyone else interested in an honest discussion and evaluation of originalism as a theory of constitutional interpretation, a political weapon, and an article of faith. (shrink)

How is distributive justice possible with respect to immigration if political decisions about entry and membership cannot be grounded in the symmetry of a prior commonality, human or otherwise, that could guarantee reciprocal relations between members and nonmembers? This paper deals with both aspects of this question. Initially, it engages critically with Seyla Benhabib's plea for ‘dialogical universalism,’ showing why the strong discontinuity between political and moral reciprocity precludes understanding distributive justice as the process of mediating between political (...) particularity and moral universality. Subsequently, it suggests that a way out of this conceptual and normative impasse can be found in the fact that boundaries create a double asymmetry. This double asymmetry is constitutive for the ‘dia’ of the political dialogue that separates and joins members and nonmembers. This ‘in between,’ which eludes control by the parties to a dialogue, is the realm of distributive justice. (shrink)

John Rawls's A Theory of Justice was published in December 1971 and has already established itself as a landmark. No other philosophical work, in our time or before, has, to my knowledge, excited so much attention in so short a time and in such varied circles. Clearly the book answers to a set of needs that have just recently surfaced, and it was published at just the right time to benefit from changing directions in philosophy and other areas of (...) intellectual life brought on by enormous and accelerating changes in social conditions and concerns, by the disaster of Vietnam, and by the sense that something serious and sufficient must be done to counter the increasing fragmentation of knowledge and the divorce of science from society. Rawls gives one the sense of putting it all together; of seeing things clearly and seeing them whole; of joining together again economics, jurisprudence, and social and moral theory; and of putting philosophy to work once again in the service of society and humanity. In particular, he gives one the sense that there can be a science of justice, of morality, and of values. (shrink)

The modern restorative justice movement, perhaps one of the most important social movements of our time, was born in a Christian home to Christian parents, specifically to Christian peace workers striving to put their faith into action in the public arena. The first major book on the subject was written primarily for a church audience and drew deeply on biblical themes and values. But as restorative justice has moved into the mainstream of criminological thought and policy, the significance (...) of its originating spiritual impulse has been minimized or denied, and subsequent theological scholarship has done little to probe the relevance of restorative perspectives for doctrine and discipleship. In this collection of essays, Christopher D. Marshall, a biblical scholar and restorative practitioner who has devoted his career to exploring the relationship between the two fields, considers how peacemaking Christians can honor the witness and authority of Scripture, including its apparently violence-endorsing strands, as they strive to join in God’s great work in Christ of “reconciling to himself all things, whether on earth or in heaven, by making peace through the blood of his cross” (Col 1:20). (shrink)

The fact that humans are responsible for climate change is certain. But the meaning of the fact of human responsibility is not disclosed by stating the fact: there is a distinction between the two principles, de facto and de jure, the right to state a fact and the right to assert the meaning of the fact. This distinction must be preserved in order that humans may interpret the nature of our responsibility, as a form of justice. In fact, the (...) nature of human responsibility can never be exhaustively determined. To recognise the fact of human responsibility for climate change may only lead us to acknowledge that climate change coincides with the plundering and exploitation of the earth as a natural resource, together with the industrial pollution which fouls our atmosphere. It is something else again to know precisely what must be done, how to think and write and interpret the science, or even what can be achieved before it is too late to prevent the worst effects of global warming. In this essay I analyse the central claims of proponents of the idea of the Anthropocene, arguing that they are arrogant and perhaps even naïve: in particular, the suggestion that humanity and nature have now fused to become a geological force is shown to be theological in its orientation. The essay also exposes Anthropocenology as a form of pedagogy, meaning that rather than opposing the neoliberalism that it attacks, Anthropocenology joins itself to the biopolitical institutions of education, seizing power in order to govern a totalized human population all the more effectively. (shrink)

There is an urgent call for nurses to address climate change, especially in advocating for those most under threat to the impacts. Social justice is important to nurses in their relations with individuals and populations, including actions to address climate justice. The purpose of this article is to present a Global Nurse Agenda for Climate Justice to spark dialog, provide direction, and to promote nursing action for just‐relations and responsibility for planetary health. Grounding ourselves within the Mi'kmaw (...) concept of Etuaptmumk (two‐eyed seeing), we suggest that climate justice is both call and response, moving nurses from silence to Ksaltultinej (love as action). We review the movement for climate justice in nursing, weaving between our own stories, our relations with Mi'kmaw ways of knowing, and the stories of the movement, with considerations for the (w)holistic perspectives foundational to nursing's metaparadigm of person, environment, and health. We provide a background to the work of the Global Nurse Agenda for Climate Justice steering committee including their role at the 26th United Nations Climate Change Conference in Glasgow, 2021, and share our own stories of action to frame this agenda. We accept our Responsibility for the challenges of climate justice with humility and invite others to join us. (shrink)

Community Supported Agriculture (CSA) seeks to address injustices in the food system by supporting small-scale farmers applying agroecological practices through a long-term partnership: a community of members covers the cost of production and receives a share of the harvest throughout the season in return. Despite an orientation towards a more just and inclusive food system, the existing literature points towards a rather homogeneous membership in CSA. A majority of CSAs tends to involve (upper) middle-class consumers with above average education and (...) income levels. Low income is still a major obstacle in joining a CSA. Membership diversification through social support actions is one possible way. Our main objective is to systematize and appraise social support actions of the CSA movement. Taking the CSA principles as a starting point, our main research question is: How do social support actions in CSAs operate in terms of social inclusion and what obstacles and challenges are associated with them? The theory of strategic action fields assists in describing how the CSA movement is positioning itself as an actor in and across neighboring strategic action fields. The CSA movement is clearly positioned in the Food Sovereignty field. By shifting the focus from justice to farmers to justice for members, the CSA movement is now also exploring the Food Justice field. Indeed, the CSAs’ contribution to the food justice movement is still largely uncharted. In our results, we identify both social support actions that are already implemented in the CSA movement in different countries, and the challenges that are associated with these actions. We pinpoint a classification of social support actions implemented by CSA organizers to increase access to their initiatives. We make a distinction between the emancipatory actions that empower beneficiaries and contribute to a systemic change, and punctual, charitable interventions that neither affect the structure of a CSA nor the food system. (shrink)

In this article I rethink Rawls' conception of international economic justice, with a particular focus on international trade. I ground my normative argument on a different interpretation of the concepts of basic structure and of basic institution. I use the contemporary international trading system to illustrate my normative interpretation. I use the Law of Peoples to discuss the Rawlsian concept of basic structure. I contest Samuel Freeman's interpretation of this concept as one that pertains exclusively to the domestic realm. (...) As a reply, I work out an interpretation of basic institutions valid for both the national and international context. I base my understanding on the impact and the form of membership that characterize basic institutions. Both properties are compatible with an extension of the concept of a basic institution to the international domain. I then show how the World Trade Organization (WTO) system can be compared to a domestic basic institution. I analyse the decisional setting that surrounds the choice of joining the WTO. I conclude that no real alternative exists. Hence, WTO membership is not to be considered a completely free policy choice. I also state that the new system is witnessing a strong expansion of the areas subject to trade governance. Such expansion is responsible for the growing impact that international trade has on domestic institutions and hence on people. Finally, I use my analysis of contemporary international trading relations to test Rawls' position in the Law of Peoples. I conclude that although Rawls' principles for fair trade and international cooperation can regulate GATT-style international trade, they are not proficient in assessing the new characteristics of international trade. (shrink)

Corruption is a pervasive problem across the world and is regularly ranked as among the greatest global challenges. Considering the role that corruption plays in exacerbating deprivation and fuelling social tension, peaceful and just societies are unlikely to come about without tackling corruption. Addressing corruption should be a high priority for those concerned with poverty eradication, peace, security, and justice. Yet, curiously, corruption has not yet been the focus of any books by philosophers working on global justice topics. (...) Corruption and Global Justice does so. Author Gillian Brock offers a normatively justified account of how to allocate responsibilities for addressing corruption across the many agents who can and should play a role. In order to know who should take responsibility and how they should do so, we need to understand multiple forms of corruption, the corruption risks associated with various activities, the interventions that tackle corruption effectively, and current policy and legal frameworks in place for addressing corruption. In addition, Brock proposes a new framework for navigating responsibility to address injustice, one that is action-oriented and forward-looking. Adopting an agent-empowering approach and harnessing the power of joining forces in effective collective action, Corruption and Global Justice addresses a significant global problem in a comprehensive way, providing the tools we need for progress as we collaborate to tackle this global scourge. (shrink)

Transitional Justice (TJ) focuses on the processes of dealing with the legacy of large-scale past abuses (in the aftermath of traumatic experiences such as war or authoritarianism) with the aim of fostering domestic justice and creating the basis for a sustainable peace. TJ however also entails the problem of how a torn society may be able to become a self-determining member of a just international order. This paper presents a minimal conception of TJ, which departs from Rawls' conception (...) of normative stability of the international order, which suggests disentangling the two goals of fostering democracy within torn societies and TJ itself. The scope of TJ is therefore limited to enabling these societies to create minimal internal conditions for joining a just international order on equal footing. This paper makes an original contribution to two different debates, namely normative research on TJ, and post-Rawlsian literature in general. First, it provides a new direction for normative theorizing about TJ which takes both its domestic and international dimensions seriously into consideration. Second, it extends Rawls' political liberal outlook to an area where it is not usually understood to apply. (shrink)

One of the ongoing debates in the sustainable agriculture community is whether its platform should include social justice issues like farmworker rights, economic concentration, and hunger. The commentary describes the evolution of this controversy, and places it in the context of competing and complicated moral theories that turn out to be of somewhat limited use in political arguments. The essay also outlines ways in which the present political climate is presenting a challenge to sustainable agriculture proponents, who, in response, (...) are building new linkages with urban interests, including anti-hunger organization. Despite abstract philosophical and more real political problems, a community food security agenda is being crafted, joining the interests of small farms, family farm, and sustainability advocates, and anti-hunger groups. Their focus is community and economic development as a way to improve the quality and availability of inner city food supplies, and to develop new markets and political allies for farmers. (shrink)

The direct reference point for these analyses is the process of making moral decisions, but a particular point of interest is the difficulty associated with making decisions when acting subjects are aware that their choice of moral good can lead to the breakdown of relationships with those close to them or to their exclusion from the group that have been most important to them so far in their lives, consequently causing them to experience loneliness. This difficulty is a challenge for (...) education, which in supporting the moral development of a maturing person should prepare her/him for choosing moral good even if this requires personal sacrifices. In these analyses, assuming that knowledge of moral good is not sufficient for morally good actions, I refer mainly to the virtues of character that facilitate making morally good decisions and I seek the answer to the question: what character traits should be shaped in maturing persons, so that as adults they can resist moral evil, even when this will clearly lead to the experience of loneliness? I propose these character traits as expressing moral virtues—especially the cardinal virtues of prudence, justice, temperance and fortitude. In this way, I join in the discussion relating to the teleology of education. I do not touch on the methodology of education, however. The argument is presented in two parts. In the first, I introduce the problem of decision-making implying consent to loneliness. In the second, I reflect on the characteristics of a person who is capable of making such a decision. (shrink)

Starting from an embodied approach to the study of the mind, and drawing on Alva Noe’s proposition that the work of art allows us to move from seeing to seeing differently, I propose that some art performances emphasize the fact that the community bears this passage, and particularly highlight the importance of joint attention in this process. To develop my argument, I will consider what art historian Claire Bishop has termed the “gray zone,” which has emerged in the last 15 (...) years or so as a result of the entry of the performing arts, normally housed in theatrical spaces, into museums, usually used for the display of immobile objects. This shift involves the breaking of certain spectatorial constraints, such as sitting isolated in the darkness of a room typical of traditional theater, and puts the subject in a position to engage in processes of joint attention. I will focus in particular on the analysis of the performance Faust, emblematic of the gray zone that I propose paradoxically emphasizes the potentially transformative power of “we”. (shrink)

This paper explains that there are two kinds of beneficiaries of international efforts to tackle climate change, only one of whom (unfair beneficiaries) is argued to come under an obligation to join such efforts and do a fair share according to the principle of fairness. For this argument, it is discussed that the problem of climate obligation is such that a theory of climate obligation, in addition to a theory of climate justice, is required for an actual imposition of (...) the obligation mentioned earlier. Having briefly introduced the principle of fairness with the focus on its basic idea, this paper makes a distinction between fair and unfair beneficiaries, the latter of which is argued to be identified as the right climate obligation bearers. Furthermore, four advantages of identifying climate obligation bearers in terms of unfair beneficiariesare pointed out. (shrink)

The view (most prominently advocated by Justice Scalia) that original meaning entails the constitutionality of original practices has strong intuitive appeal and has been broadly assumed by originalists and nonoriginalists alike. But the position is mistaken. We suggest that a failure to distinguish between two different notions of meaning accounts for the position's wide currency. According to the first notion, the meaning of a term is roughly what a dictionary definition attempts to convey--the semantic or linguistic understanding necessary (...) to use the term, as opposed to nonlinguistic facts about the objects or activities to which the term applies. In contrast, according to the second, looser notion, the meaning of a term incorporates the objects or activities to which the term is applied. The first notion lies behind originalism's theoretical force; it is untenable that the meaning of the Constitution in the first sense could evolve. In sharp contrast, it is not only tenable but inevitable that changes occur over time in the class of things to which a constitutional provision is applied. Once recognized, the distinction undermines the seemingly natural move from the necessity of interpreting the Constitution in accordance with how it was originally understood to the necessity of upholding practices originally understood to be constitutional. By taking the distinction on board and rejecting the assumption, originalism can readily deflect the challenges based on unacceptable original practices; as a consequence, however, it will not be tenable for originalism, in any case challenging an original practice, simply to rule out the possibility of the practice's invalidity. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:"To make a difference...":Narrative Desire in Global MedicineByron J. Good and Mary-Jo DelVecchio GoodIf, as Arthur Frank (2002) writes, "moral life, for better and worse, takes place in storytelling," this collection of narratives written by physicians working in field settings in global medicine gives us a glimpse of some aspects of moral experience, practice, and dilemmas in settings of poverty and low health care resources. These essays are written (...) from the midst of practice, in diverse settings in Africa, South Asia, Latin America, the Caribbean, and the United States. The majority of the writers are practitioners of contemporary 'global medicine'—physicians from North America or Europe who spend part of their lives flying into settings of poverty or special need to practice medicine and work with on-going collaborative clinical and public health systems—while a smaller number are working in the societies in which they were born. Although a few work for classic humanitarian organizations or have developed their own local NGO's, the great majority are engaged in the 'hybrid life' described by Robert Riviello and noted by Renée Fox, moving between academic medical centers and distant health care systems that are supported by local governments, major international organizations and funding agencies, and international NGO's like Partners in Health. These diverse forms of practice have become a common model for contemporary clinicians engaged in what has emerged as a new discipline of global health or global medicine, and these narratives give us a glimpse of some of the enduring, as well as newly emerging, forms of moral practice and ethical dilemmas characteristic of today's global medicine.Many of these stories are filled with the tension and pathos that makes clinical narratives powerful to read. Physicians are forced to make unfathomable decisions about whether to resuscitate and keep a baby alive, using all means available, or to let the infant die, whether to carry out a procedure that will save an infant in birth but would put the mother at risk, about how to deal with a cancer found in a very advanced state. However, virtually all of the stories transcend these classical stories of the decisions physicians are forced to make by being placed in settings of great scarcity of resources, which stand in particular contrast to the academic medical settings in North America or Europe where many of these global medicine specialists have trained and many continue to practice. The unspeakable inequality of resources emerges throughout these narratives as a kind of master theme, as the underlying moral, as opposed to plot, which gives meaning and sense to the stories. For those who practice medicine in such settings, global inequalities and scarcity of medical resources are deeply felt. They produce the rage that Jeffrey Deal describes. ("I learned to despise American churches during that time, a time when my world encompassed a dying newborn in Sudan, as well as the air conditioned padded seats [End Page 121] of our affluent suburban church.") They produce the distinctive experiences of helplessness and pain felt by clinicians who cannot separate how they would be able to treat such a patient at home from how they have to practice in these settings. For those clinicians working in their own societies, scarcity of resources often produces deep anger at the corrupt governments that fail to support basic human services for the great majority of their population. ("We were temporary actors performing in the cynical play of scarcity on permanent display in Port-au-Prince," writes Haitian physician Paul Pierre about his experience prior to joining Partners in Health.)But for those who regularly travel back and forth across the divide between rich and poor, whether across national boundaries or within their own society, the challenge to live a moral life is unendingly complicated. While becoming a part of a struggle for global justice with colleagues and advocates from both sides of the divide, few of the narrators can avoid personal feelings of ambivalence and guilt at being able to easily move from one side of that divide to the other back home. Many fantasize about giving up their lives in the north to devote themselves... (shrink)

Jacob Weinrib's Dimensions of Dignity 1 [DD] joins a small but growing literature committed to the reconstruction, as applied theory, of foundational concepts such as justice, authority, and the ru...

There is a familiar disagreement between Justice Antonin Scalia of the US Supreme Court and Ronald Dworkin over whether the Eighth Amendment to the US Constitution could be plausibly interpreted so as to prohibit capital punishment. The dispute reflects a deep divergence in approach to statutory interpretation. I explore this divergence by paying particularly close attention to its metasemantic background. I then argue that the metasemantic orientation clearly vindicates the Dworkinian side.

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic (...) framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions. (shrink)

This paper examines the case of Lawrence v. Texas to bring out the philosophical commitments of Justices Anthony Kennedy and Antonin Scalia. It is proposed that Justices Kennedy and Scalia, while both Catholics, represent fundamentally different visions of the “ends and reasons” of democratic law. A close reading of the Justices’ opinions in Lawrence indicates that Justice Scalia belongs to the tradition of the “ancients” and Justice Kennedy to the tradition of the “moderns.” The paper (...) focuses in particular on the Justices’ interpretations of the Due Process Clause of the Fourteenth Amendment. It is claimed that the interpretation of this clause turns on a philosophical commitment regarding the ends and reasons that the Constitution should be understood to serve, and thus that justices cannot help acting as “philosopher kings” here. Which of the two Justices is more consistent with the Catholic tradition is proposed as a question for another day. (shrink)

Germany is joining a long list of European democracies that have modified or expressed a willingness to modify their citizenship laws to denationalize first and then prevent the return of or expel those citizens accused of having participated in terrorist activities abroad. The formal labelling of citizenship deprivation as an administrative measure outside the scope of criminal justice has prevented scholars of criminal law from undertaking a thorough scrutiny of its legitimacy. In this paper I seek to fill this (...) gap. Specifically, after demonstrating why deprivation of citizenship is a measure of a criminal nature, I argue against its legitimacy, either as a punishment or as a risk-based measure. Instead I propose that we should understand citizenship deprivation as a paradigmatic response from an illegitimate enemy criminal law. Notwithstanding the foregoing, I claim that states that choose to denationalize terrorists should do it within the framework of a process with the highest (criminal procedural) guarantees. (shrink)

This paper argues that given the importance of joining together local and global aspects of climate change, individual conscience needs to be complemented by critical consideration of collective forms of conscience. Evidence for the existence of such collective forms as relevant to climate debates can be found in public reactions to email leaks on climate science, dubbed ‘Climategate’ in the processes leading up to the United Nations Summit on Climate Change, COP-15. In critical engagement with Emile Durkheim’s conscience collective and (...) Bernard Häring’s reciprocal consciences, I argue for collective conscience to be used as a heuristic tool in order to analyse both weaknesses in collective responsibility and appropriate actions of communities at local, national or international levels. I suggest that such an approach critically engages with more general notions such as the role of solidarity in public debate that both develops and critiques Jürgen Habermas’s more recent work opening up a religious voice in the public domain. Using an experiential case study from the Massai tribe, I intend to show just one way in which collective conscience might be expressed when faced with the problems associated with climate change. (shrink)

Courts frequently engage in the weighing of competing values; perhaps most obviously, such balancing constitutes an integral aspect of proportionality analysis in many states’ constitutional law. However, such balancing raises a difficult theoretical question: What does it mean that one value “outweighs” another in any particular case? If the values at issue are incommensurable — as they often will be — such balancing may appear to break down. As Justice Scalia has stated, balancing in the presence of incommensurable (...) values “is more like judging whether a particular line is longer than a particular rock is heavy.” It may appear that if a judge is asked in a particular case to decide, for example, whether a state interest is sufficiently strong to justify the limitation of a constitutional right, he will be forced to a) either abandon the notion of a genuine plurality of values, or b) make an arbitrary decision. This article argues that neither of these options need be accepted and that rational choice is indeed possible in the presence of incommensurable values. Specifically, it contends that the Nash bargaining solution provides a means, at least in certain circumstances, of rationally understanding and undertaking the weighing of distinct and mutually irreducible values which adjudication frequently requires. The Nash framework can both elucidate proportionality analysis by providing a social choice-based framework for understanding the structure of proportionality analysis and also justify proportionality analysis by demonstrating that the weighing of competing values is not necessarily mere judicial hand-waving. (shrink)

The unexpected passing of United States Supreme Court Justice Antonin Scalia left a vacancy on the Court in the midst of a presidential election year. As a result, the appointment process did not proceed in the same fashion as previous appointments. Instead, the Senate declared shortly after Justice Scalia’s death that it would not consider any candidate to fill the vacancy until the next president is elected. The Senate remained steadfast in this decision throughout the remainder (...) of President Obama’s term. -/- This Article analyzes the constitutional questions surrounding the Senate’s refusal to consider any nominee and argues the Senate has a duty to advise and consent in a timely manner. Additionally, it demonstrates how a politically-motivated delay threatens the integrity of the constitutional process for selecting judges, violates separation of powers concerns by politicizing the Court, and contradicts the express intent of the Framers of the Constitution. (shrink)

This paper focuses on doctoral research which explored relationships and interpersonal learning through group dramatherapy and creative interviewing with adolescents in special education. A constructivist grounded theory study, positioning adolescents with intellectual/developmental disabilities as experts of their own relational experiences, revealed a tendency to“copy others.”The final grounded theory presented“copying”as a tool which participants consciously employed “to play with,” “learn from,”and“join in with”others. Commonly experiencing social ostracism, participants reflected awareness of their tendency to“copy others”being underpinned by a need to belong. Belonging (...) was therefore expressed as the ultimate therapeutic experience participants wished to have. Participant responses which link dramatic imitation to a self-identified tendency“to copy,”are discussed with regard to how imitation provides an accessible point of dramatic entry from which adolescents in special education begin to explore new ways of being and inter-relating. Recommendations for how dramatherapists might centralize imitative aspects of the dramatic process to achieve therapeutic intent when working alongside adolescents in special education are discussed with specific focus on creating a space of belonging.Note on type: Participant quotes extracted from the data are included throughout this article. In order to highlight participant’s contributions quotes are italicized and presented within speech marks. (shrink)

Union security has long been an industrial relations controversy. While compulsory unionism supporters say it benefits the working class, right-to-work advocates denounce it as an unethical infringement of individual rights and freedom. Unfortunately, neither side has adequately addressed the shortcomings of their viewpoint, nor the broader worker concerns about effective representation beyond just "unionism". In this paper, we examine the ethical and practical problems of compulsory and voluntary unionism and propose a new resolution, compulsory proportional representation, that has the advantages (...) of: ensuring workers' freedom to associate or not associate, promoting freedom to contract, allowing free competition in representation in line with anti-trust principles, improving industrial peace and efficiency, enhancing fairness and social justice, and addressing the employer-employee power imbalance. It is superior to either voluntary unionism, which often lead to management unilateralism, or compulsory unionism, where workers are compelled to join unions against their will. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Principles and Theory in BioethicsPat Milmoe McCarrick (bio)The following citations were selected from BIOETHICSLINE, the online database prepared at the Kennedy Institute of Ethics for the National Library of Medicine's MEDLARS system. Searching the keywords autonomy, beneficence, casuistry, justice, and virtues, as well as the text word principlism produced more than 400 citations. Only the citations concerned with theory and principle in the practice of bioethics are included (...) here—e.g., works about justice in resource allocation have been deleted.Arkes, Hadley V. When Bungling Practice Is Joined to Absurd Theory: Doctors, Philosophers, and the Right to Die. In Set No Limits: A Rebuttal to Daniel Callahan's Proposal to Limit Health Care for the Elderly, ed. Robert L. Barry and Gerard V. Bradley, pp. 31-44. Urbana: University of Illinois Press, 1991.Arnason, Vilhjalmur. Towards Authentic Conversations: Authenticity in the Patient-Professional Relationship. Theoretical Medicine 15 (3): 227-42, September 1994.Arras, John D. Getting Down to Cases: The Revival of Casuistry in Bioethics. Journal of Medicine and Philosophy 16 (1): 29-51, February 1991.Arras, John D. Principles and Particularity: The Role of Cases in Bioethics. Indiana Law Journal 69 (4): 983-1014, Fall 1994.Beauchamp, Tom L. Principles and Other Emerging Paradigms in Bioethics. Indiana Law Journal 69 (4): 955-71, Fall 1994.Beauchamp, Tom L. The Principles Approach. Hastings Center Report 23 (6): S9, November-December 1993.Beauchamp, Tom L., and Childress, [End Page 279] James F. Principles of Biomedical Ethics. 4th ed. New York: Oxford University Press, 1994. 752 p.Beauchamp, Tom L., and Walters, LeRoy. Ethical Theory and Bioethics. In their Contemporary Issues in Bioethics. 4th ed., pp. 1-38. Belmont, CA: Wadsworth, 1994.Beldecos, Athena, and Arnold, Robert M. Gathering Information and Casuistic Analysis. [Commentary]. Journal of Clinical Ethics 4 (3): 241-45, Fall 1993.Bole, Thomas J. The Rhetoric of Rights and Justice in Health Care. In Rights to Health Care, ed. Thomas J. Bole and William B. Bondeson, pp. 1-19. Boston: Kluwer Academic, 1991.Broome, John. Fairness Versus Doing the Most Good. [Commentary]. Hastings Center Report 24 (4): 36-39, July-August 1994.Campbell, Courtney S. Gifts and Caring Duties in Medicine. In Duties to Others, ed. Courtney S. Campbell and B. Andrew Lustig, pp. 181-97. Boston: Kluwer Academic, 1994.Carson, Ronald A.; Callahan, Sidney; Ross, Judith Wilson; and May, William F. Spirit, Emotion, and Meaning: The Many Voices of Bioethics. Hastings Center Report 24 (3): 26-27, May-June 1994.Charlesworth, Max. Bioethics in a Liberal Society. New York: Cambridge University Press, 1993. 172 p.Cherbas, Peter. Paradigms and Our Shrinking Bioethics. Indiana Law Journal 69 (4): 1105-13, Fall 1994.Childress, James F. Ethical Theories, Principles, and Casuistry in Bioethics: An Interpretation and Defense of Principlism. In Religious Methods and Resources in Bioethics, ed. Paul F. Camenisch, pp. 181-201. Boston: Kluwer Academic, 1994.Childress, James F., and Fletcher, John C. Individualism and Community: The Contested Terrain of Respect for Autonomy. Hastings Center Report 24 (3): 34-35, May-June 1994.Clouser, K. Danner, and Gert, Bernard. A Critique of Principlism. Journal of Medicine and Philosophy 15 (2): 219-36, April 1990.Devettere, Raymond J. Clinical Ethics and Happiness. Journal of Medicine and Philosophy 18 (1): 71-89, February 1993.DeGrazia, David. Moving Forward in Bioethical Theory: Theories, Cases, and Specified Principlism. Journal of Medicine and Philosophy 17 (5): 511-39, October 1992.Donnelly, William J. From Principles to Principals: The New Direction in Medical Ethics. [Commentary]. Theoretical Medicine 15 (2): 141-48, June 1994.Downie, Robin. Health Care Ethics and Casuistry. [Editorial]. Journal of Medical Ethics 18 (2): 61-62, 66, June 1992. [End Page 280]DuBose, Edwin R.; Hamel, Ronald P.; and O'Connell, Laurence J., eds. A Matter of Principles? Ferment in U.S. Bioethics. Valley Forge, PA: Trinity Press International, 1994. 381 p.Fox, Renée C. The Entry of U.S. Bioethics into the 1990s: A Sociological Analysis, pp. 21-71.Gudorf, Christine E. A Feminist Critique of Biomedical Principlism, pp.164-81.Campbell, Courtney S. Principlism and Religion: The Law and the Prophets, pp. 182-208.Charon, Rita. Narrative Contributions to Medical Ethics: Recognition, Formulation, Interpretation, and Validation... (shrink)

The distributive justice literature has recently formulated several tax proposals, with limitarians or property-owning democrats proposing new or higher taxes on wealth or capital income intended to decrease the growing wealth gap. This essay joins this debate on inequality and redistributive taxation through the lens of the “benefit principle for public policy.” This principle says that specific rules and institutions are acceptable to the extent that they create benefits for all individuals in society, or at least don’t make (...) anyone worse off. This benefit principle opposes wealth accumulation to the extent that wealth was generated through rent-seeking—that is, income unrelated to economic productivity, which is not embedded in mutually beneficial exchanges. I maintain, however, that ruling out rent-seeking requires not ex post taxation, but primarily a more “predistributive corrective policy,” that is, reconfiguration of market institutions to prevent wealth accumulation through rent-seeking in the first place. The alternative response is, thus, not to tackle inequality as such but to reform the market to promote the occurrence of mutually beneficial exchange. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Socially Engaged BuddhismBrian KarafinSocially Engaged Buddhism. By Sallie B. King. Honolulu: University of Hawai‘i Press, 2009. 192 pp.In a chapter on the philosophical and ethical foundations of the socially engaged Buddhist movement, Sallie King retells a story from the Burmese liberation struggle against military dictatorship. The story was originally told by Aung San Suu Kyi (b. 1945), the Burmese Buddhist activist who is one of the several representative (...) figures (heroes and heroines) of King’s synoptic account of the modern tradition of Engaged Buddhism. An activist against the dictatorship, Uncle U Kyi Maung, being interrogated by officers of military intelligence as to why he had joined the National League for Democracy, the organization headed by Aung San Suu Kyi, Uncle Maung replied: “For your sake” (p. 32).This story of Buddhist resistance can stand as a representative anecdote for King’s useful history of Engaged Buddhism. The context is one of political oppression and torture, abuse of human rights and repression of democracy, and the attempt to respond to this historical situation from a perspective rooted in the traditional Buddhist spirituality of Asia in a fashion that makes that spirituality relevant to the crises of modernity. The interrogated activist responds to the threat of torture with courage rooted in a Buddhist spiritual practice, and thus is able to assert a political stance grounded in a compassionate recognition of his interdependence with the so-called enemy who is temporarily holding power over him. This constellation of factors illustrates the phenomenon of Engaged Buddhism: It is a form of Buddhist spirituality, not a departure from tradition but an application of traditional ideas—of compassion, interdependence, impermanence, no-self, karma, and others—to the modern period, and specifically to a modern Buddhist Asia riven by war, political oppression, ecological crisis, and capitalist globalization in economics and culture. [End Page 215] This application of Buddhist spirituality to modern Asian (and global, though King’s focus is on Asia) history represents an alternative form of politics, and specifically of political resistance: nonviolent, nonadversarial, rooted in indigenous Asian cultures rather than imported from the West (as would be the case with the various Marxist and liberal political ideologies also at play in the colonial and postcolonial period that saw the development of engaged Buddhism). This is a political resistance, in King’s presentation, grounded in compassion rather than justice, and thereby offering to global observers a significantly different slant on modern politics than the Western ideologies and movements, secular as well as religious.“Engaged Buddhism” as a term, says King, was coined by Thích Nhất Hạnh (b. 1926) in the context of the war in Vietnam. This was to be a form of Buddhism that drew on the traditional sources (wisdom that knows interdependence/emptiness and compassion that acts on that wisdom) but found skillful means to intervene concretely in the multiple crises related to the war: in the form of social service work including education, but also political activism to address the underlying causes of the war. King demonstrates with this example of Thích Nhất Hạnh and Vietnam the combination of traditional Buddhist ideas with modern contexts of practical application that characterize the movement as a whole. The template of the “four noble truths” is foundational to Thích Nhất Hạnh’s thought—suffering, its causes, the cessation of suffering and the path to that cessation. But in a world of war and political oppression the causes of suffering cannot be only located intra-psychically—yes, the afflictive mental states of greed, hatred, and delusion are the ultimate sources, but the deluded collective hatred that issues in war must be seen as a relatively autonomous factor calling for its own analysis and response. If the orphans of a bombed-out village can be said to suffer from afflictive mental states it is really the minds of those carrying out the bombing who must be transformed, and this obviously requires intervention into the political realm, given that the war makers are not themselves usually willing to sit down and explore the causes of their unskillful behavior. Hence, engaged Buddhism is Buddhism in... (shrink)

Much ink has already been spilled on the relationship of constitutional originalism to precedent. The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to (...) classify; Akhil Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. (shrink)

In their celebrated essay “The Right to Privacy,” legal scholars Samuel Warren and Louis Brandeis identified as the generic privacy value “the right to be let alone.” This same phrase occurs in Justice Brandeis's dissent inOlmstead v. U.S.(1927). This characterization of privacy has been found objectionable by philosophers acting as conceptual police. For example, moral philosopher William Parent asserts that one can wrongfully fail to let another person alone in all sorts of ways—such as assault—that intuitively do not qualify (...) as violations of privacy and thus cannot be violations of the right to privacy. (shrink)

This paper argues that liberationist ethics can contribute method and content to religious discourse on peace and war. The christological grounding for this ethic forces us to take more seriously the will toward peace as capable of being progressively realized in the face of structural sin. Moreover, it seeks to address a Christian audience first that may then join others in prophetic denunciation of cultural attitudes that embody social sin by masking structural violence. Directives for state action may be modified (...) through cultural actors; the state is not usually the immediate addressee. Liberationists move through the social to the political dimension, thus avoiding a tendency to absorb political functions. (shrink)