Abstract—How do judges decide cases? Are judges controlled by rules, principles and professional standards of reasoning or do they decide as politicians, using the law as an instrument to achieve predetermined goals. In Australia one influential view on this issue was expressed by Sir Owen Dixon when he called for a ‘strict and complete legalism’ for judges. Dixon’s strict legalism no longer commands the respect that it once did and his view is now commonly seen as naïve or as a (...) noble lie intended to hide the freedom open to judges when they decide cases. This article examines first Dixon’s understanding of strict legalism. It will argue that Dixon understood it as a form of practice and not as a rigorous scholarly system. Secondly, it will analyse Wilson v Darling Island Stevedoring to see whether the leading judgment of Fullagar J is in accord with Dixon’s judicial method. In Wilson the High Court was presented with a persistent legal problem—could stevedores claim the benefits of exemption and limitation clauses that commonly featured in bills of lading arising from the transport of goods and people? The third section of the article will consider the obvious belief of many of the judges in the authorities examined that the commercial inconvenience of not protecting stevedores was too great to ignore. These judges were willing to grant stevedores the protection of exemption clauses in contracts of carriage, a trend that continued, indeed accelerated, after Wilson. So, even if Fullagar J did judge as a strict legalist, does this perceived commercial imperative raise doubts about the appropriateness of this style of judging? In conclusion the article will consider the implications of showing that the reasoning in Wilson displayed a fidelity to Dixon’s notion of strict and complete legalism. (shrink)

Does the black struggle for civil rights make common cause with the movement to foster queer community, protest anti-queer violence or discrimination, and demand respect for the rights and sensibilities of queer people? Confronting this emotionally charged question, Ladelle McWhorter reveals how a carefully structured campaign against abnormality in the late 19th and early 20th centuries encouraged white Americans to purge society of so-called biological contaminants, people who were poor, disabled, black, or queer. Building on a legacy of savage (...) hate crimes—such as the killings of Matthew Shepard and James Byrd—McWhorter shows that racism, sexual oppression, and discrimination against the disabled, the feeble, and the poor are all aspects of the same societal distemper, and that when the civil rights of one group are challenged, so are the rights of all. (shrink)

In Bodies and Pleasures, Ladelle McWhorter reads Foucault from an original and personal angle, motivated by the differences this experience has made in her life.

Contemporary mental health professionals exhibit interest in integrating spirituality into the services they provide to clients. This clinical integration raises questions about both the goals of mental health services and the professional relevance of mental health providers’ spiritual competency. Drawing on the Christian anthropology of St. Thomas Aquinas, Benedict Ashley’s approach to psychotherapy differentiates psychopharmacological, psychotherapeutic, and spiritual approaches on the basis of the different domains of a client’s personality. These domains are the focus of different professions, and Ashley’s account (...) suggests that mental health providers who lack additional spiritual-moral training should adopt a clinical model that recognizes their work is spiritually oriented but not spiritually directive. (shrink)

This essay provides a genealogy of corporate personhood as it exists currently in US law and places moral personhood in a similar genealogical context. This treatment demonstrates that the two are inextricably intertwined in both conception and institutionalized practices. We would do well to dismantle both; meanwhile, however, corporate personhood's implicit illiberal notion of collective mentality and responsibility may suggest possibilities for establishing collective counterforces to oppose activities of transnational for-profit corporations and mitigate their devastating political, economic, and environmental effects (...) upon actual people and the ecosystems upon which we depend. (shrink)

Charles Scott has always encouraged his students to take up the questions they find most troubling, difficult, and even possibly unanswerable. For him, philosophy is about movements of thinking themselves rather than arrival at reasonable conclu­sions. In tribute to Scott as a teacher, this paper takes up a troubling and perhaps unanswerable question: How might we teach our students today so as to prepare them for life in a world of ecological instability beyond what any member of our species has (...) ever experienced? It looks at the question of ethics in the midst of pollution, peak oil, and climate change. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Normalization and the Welfare StateLadelle McWhorterIn Racism and Sexual Oppression in Anglo-America, I argued that as race was absorbed into biology in the nineteenth century, it was recast from a morphological typology to a function of physiological and evolutionary development (McWhorter 2009b). Racial difference became a sign of developmental difference. Racial groups represented stages of human evolution, and raced individuals were to be disciplined and managed in accordance (...) with developmental norms.Twentieth-century race was therefore a category and tool of normalization; to be raced was to be located at a particular point along a developmental curve. Some races were thought to be more or less arrested in their development, while others were merely retarded, and theorists disagreed at times about which were which. But they all agreed that the most highly developed race was the Nordic or the Anglo-Saxon. Anglo-Saxons were the norm for modern human beings— anatomically, physiologically, intellectually, and morally. There were other white races whose status was debated (Mediterraneans and Ashkenazi Jews, for example), and there were disputes over the evolutionary status of Chinese, Hindus, and Mexicans. But most theorists agreed that at the very bottom of the developmental scale we should place Celts, Negroes, and American Indians. These peoples were savages, primitives. They should be trained to the extent possible to contribute to the society that had already superseded them, but their proper destiny was to pass away into extinction as humanity advanced.These evolutionary stragglers, along with the evolutionary throwbacks that appeared sometimes among whites, were considered dangerous for two main reasons. First, a great many of them were expensive. They were shiftless, often incompetent, and frequently lawless. Because of them, it was necessary to [End Page 39] maintain police forces, prisons, poorhouses, and asylums. They were a drain on the economic advance of society, which affected its educational and technological advance and ultimately its evolutionary advance as well. Second, because they had primitive sexual urges unrestrained by reason as well as heritable defects and diseases, they threatened the bloodlines of more advanced human beings. In short, they posed a risk for the ongoing evolutionary advancement of the entire Human Race. To protect the Race, it was necessary to contain these primitives, savages, and throwbacks and to reduce their numbers through careful management of their sexuality. This, I argued in the book, was racism’s cutting edge in the early twentieth century.Since publishing the book, I have done some work on the changes in practices of racism in the wake of the Biological Synthesis—that is, the unification of biology and genetics that occurred in the 1930s through the efforts of renowned scientists such as Theodosius Dobzhansky and Ernst Mayr (McWhorter 2010a, 2010b, 2010c). As I discussed in that work, by 1950, evolutionary biology was less a study of species development than it was a study of the effects of evolutionary forces acting on and within populations. Correlatively, racial practices shifted toward management of statistically delineated populations or ethnic groups. Theorists and policymakers recognized that not all members of a given population have the same genes, meaning that old-style racism (which assumed, for example, that all Negroes were stupid) was false; some Negroes might be quite brilliant, in fact. It was not The Negro who was stupid but the population of Negroes in the aggregate that was measurably stupider than the population of Anglo-Saxons. Accordingly, normalization now occurred at the level of the population. Disciplinary practices designed for cultivating the capacities of groups of individuals were altered or replaced to focus on groups as groups, as aggregates. The point was to shift the statistical norm of the population rather than to alter the bodies or behavior of each and every individual. I have argued elsewhere (McWhorter 2009a, 5) that this merger of disciplinary normalization and population management constitutes the full flowering of what Foucault calls biopower (Foucault 1978, 140).When Lisa Guenther invited me to speak at the plenary on “Re-thinking Whiteness” that took place at the fifth annual meeting of philoSOPHIA at Vanderbilt University, she explained that although many presenters offer polished papers, it has been a... (shrink)

Over the past 15 years we have seen the rise of a field of inquiry known as Whiteness Studies. Two of its major tenets are (1) that white identity is socially constructed and functions as a racial norm and (2) that those who occupy the position of white subjectivity exercise ‘white privilege’, which is oppressive to non-whites. However, despite their ubiquitous use of the term ‘norm’, Whiteness Studies theorists rarely give any detailed account of how whiteness serves to normalize. A (...) case is made here that we can only understand how whiteness normalizes if we place the development of white racial subject positions within the context of the development of normalizing biopower that Foucault describes in his work through the 1970s. Once that context is provided, it becomes clear that a larger problem exists in Whiteness Studies, one evident in the use of the concept of ‘white privilege’. Whiteness Studies theorists have not thoroughly critiqued the juridical conception of power that they have inherited from traditional political theory; as a result, they cannot get away from psychological accounts of the origins of racism, even though they usually state very clearly that they believe racism is an institutional phenomenon and racist subject positions are formed within networks of power. If Whiteness Studies is to accomplish both its analytical and its political goals, its theorists need to pay close attention to Foucault’s work on biopower. (shrink)

This paper considers the following question: how can those whose thought is informed by poststructuralist values, arguments, and training legitimately teach the history of philosophy? In answering this question, three pedagogical approaches to courses in the history of philosophy are considered and criticized: the representational, the phenomenological, and the conversational. Although these three approaches are seemingly exhaustive, each is problematic because the question they attempt to answer rests on the false assumption that there is one, universally right way to teach (...) philosophy and many wrong ways. In rejecting this assumption, the author considers a new, more concrete, and contextualized question concerning teaching philosophy from a postmodern perspective. (shrink)

Problems and solutions are given from a Heideggerian point of view for saving the earth.

Queer defies categorization and resists preset developmental trajectories. Practices of queering identities emerged near the end of the twentieth century as ways of resisting normalizing networks of power/knowledge. But how effective are queer practices at resisting networks of power/knowledge (including disciplines) that are not primarily normalizing in their functioning? This essay raises that question in light of expanding neoliberal discourses and institutions which, in some quarters at least, themselves undermine normalized identities in favor of a proliferation of personal styles susceptible (...) to governance through market forces. Special attention is given to Security, Territory, Population and The Birth of Biopolitics in this analysis. (shrink)

Although Foucault adamantly refused to make moral pronouncements or dictate moral principles or political programs to his readers, his work offers a number of tools and concepts that can help us develop our own ethical views and practices. One of these tools is genealogical analysis, and one of these concepts is “biopower.” Specifically, this essay seeks to demonstrate that Foucault's concept of biopower and his genealogical method are valuable as we consider moral questions raised by genetic enhancement technologies. First, it (...) examines contemporary debate over the development, marketing, and application of such technologies, suggesting that what passes for ethical deliberation is often little more than political maneuvering in a field where stakes are very high and public perceptions will play a crucial role in decisions about which technologies will be funded or disallowed. It goes on to argue that genuine ethical deliberation on these issues requires some serious investigation of their historical context. Accordingly, then, it takes up the oft-heard charge from critics that genetic enhancement technologies are continuous with twentieth-century eugenic projects or will usher in a new age of eugenics. Foucault explicitly links twentieth-century eugenics with the rise of biopower. Through review of some aspects of the twentieth-century eugenics movement alongside some of the rhetoric and claims of enhancement's modern-day proponents, the essay shows ways in which deployment of genetic enhancement technologies is and is not continuous with earlier deployments of biopower. (shrink)

In “Society Must Be Defended” Foucault examines 17th century race war discourse not so much in order to understand 20th century racism or concepts of race but primarily because it constitutes an historical example of an attempt to think power without a head or king. This essay examines his account of race war discourse and the sources he used to construct it. It then takes issue with his claim that early race war discourse can be separated from 18th and 19th (...) century racisms. Finally, it returns to the question of power and argues that the effect of the 1976 lecture series was to dislodge the sovereign model of power but also the model of power as war. (shrink)

Bodies and Pleasures has been characterized as a confessional discourse that manages to subvert confessional practice. Here it is characterized and discussed as an askesis that works to transform confessional practice as it transforms the writer/reader. Two questions emerge through that transformation: How is race to be lived? What are the possibilities for political subjectivity in the absence of dualism and the intensification of awareness of our normalization?

On the morning of February 11, 2015, the lead editorial in the New York Times was entitled “Lynching as Racial Terrorism.” I took great pleasure in it. I did not actually read the editorial. What gave me pleasure was the title, which affirmed the analytic and genealogical position I took on lynching in my last book: Lynching in the early twentieth century in this country, I argued, was a technique not of sovereign power but of disciplinary power; its exercise was (...) decentralized, and its terrifying effects were felt in the bodies of entire populations who regulated their conduct accordingly—such is terrorism... (shrink)

In his 1979 lecture series now translated as The Birth of Biopolitics, Michel Foucault suggests that there is an important relationship between neoliberalism and the cluster of phenomena he had previously named “biopower.” The relationship between these two apparently very different forms of governmentality is not obvious, however, and Foucault does not explicate it. The question has become a pressing one for feminists because it underlies a set of issues surrounding the emerging field of “reprogenetics.” Feminists have been highly critical (...) of invasive reproductive technologies for decades, viewing them as demeaning to and dangerous for women's bodies and as staunchly traditional in their reinforcement of gender roles and of maternity as female desire and destiny. Reprogeneticists accuse feminists of hypocrisy in seeking to curtail the widest technically possible range of “procreative choice.” This essay traces some ways in which reprogenetics may be interpreted as a biopolitical formation as well as a neoliberal formation and suggests how the two seemingly antithetical types of phenomena might actually be overlapping and mutually reinforcing—perhaps opening the way for a more effective feminist critique. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Response to Chloë TaylorLadelle McWhorterAs Chloë Taylor notes, Racism and Sexual Oppression in Anglo-America puts forth a genealogy of race and racism. It also contains fragments of genealogies of intelligence, disability, family values, and a few other concepts and practices that were hugely influential in the twentieth century and have been since. In addition, it presents a certain conception and experience of abnormality and of sexuality in relation to (...) all of the above. But the book does not present a theory of racism or of sexual oppression or of both together. There are important differences between theorizing and the practice of genealogy, at least in the way that I understand the two, and that difference makes a difference in the book’s structure and aims.When I began my graduate education in the early 1980s, feminists were producing compelling critiques of regimes of knowledge and techniques of knowledge production that claimed legitimacy through detachment, dispassionate observation, and objectivity.1 Theory was a not infrequent target of those feminist critiques. Theory (from the Greek theoria, as Heidegger reminds us) is about seeing (not, for example, touching or feeling), and theorizing is typically about representing with accuracy and thoroughness what non-theorists see only incompletely, if at all. Theory, therefore, seeks to correct distortions as it captures reality under concepts.2 Theory also aims to be unitary and exclusive. And theories compete with each other; no matter how many theories there are, only one can possibly be true.By contrast, genealogy is not detached or dispassionate; on the contrary, one takes up genealogy precisely because one feels a need to change something—including something in or about oneself. One takes up genealogy, Michel Foucault maintains, in order to “free thought from what it silently [End Page 216] thinks,” to “enable it to think differently,”3 to get free of oneself as one has been constituted in a certain milieu. Genealogy is concerned with accuracy of representation, therefore, to the extent that detail, facts, and logical plausibility make a narrative more compelling, more moving, more potent—to that extent, and no further; it does not employ scholarly observation and insight to get at “the truth.” A good genealogy constructs a new way of seeing and experiencing that may well disturb a given regime of truth and may make possible the generation of new truths or perhaps new habits of thought and action, but it does not purport to be final or exclusive. It problematizes habitual practices and ways of seeing and, thus, it opens toward indefinite possibilities. My book is genealogical; it promotes no theories. I emphasize this, because I want to insist on the book’s hospitability to the extension of its analyses beyond its covers and to its own (self-)overcoming.Racism and Sexual Oppression in Anglo-America presents some genealogies, then, but it is not only a collection of genealogies. It is explicitly framed by a set of contemporary political and ethical contingencies, some of which it identifies as problems, and it considers what to do in response to them. Its genealogies are undertaken and constructed in the context of grappling with those questions, a featured one of which is this: Can we find enough common ground to make common cause between antiracism and anti-heterosexism activists?In the course of tracing a genealogy of twentieth-century racism, I found quite a bit of common ground between racial minorities and nonhetero-sexual people in the United States. So, in addition to my genealogies, I offered some (admittedly perhaps heavy-handed) advice to antiracism and anti-heterosexism activists, namely: Not only is there ground for common cause, but you ignore this ground at your peril, because there is not a lot of other ground for you to stand on; if you do not acknowledge this common history and the strong connections among the forces that oppress your group and those that oppress these other groups, you will have to deny much of your own history and obscure many of the sources of your own oppression. I did not issue the same advice to disability activists or environmentalists, although they might do well to consider it too. I singled... (shrink)

Certain teachings found in Gadamer’s hermeneutics are examined in order to help cultivate the historically-minded theological methodology proposed by Thomistic thinker Benedict Ashley. Consideration is given to four Gadamerian themes mentioned in Ashley’s introduction to Theologies of the Body: Interpretation is an intellectual inquiry that can be enriched by adopting hermeneutic reflection where such reflection is understood as a kind of a contemplative meta-praxis. Interpretation as the search for understanding involves a heuristic process. Hermeneutic reflection facilitates an interpreter becoming aware (...) that the work of interpretation itself occurs within a historical context. The process of interpretation is incomplete without the contemporary application of what is understood. With respect to each of these four themes, Ashley’s work is considered first and then the same topics are considered as found in the writings of Gadamer. (shrink)

For many years feminists have asserted an "intersection" between sex and race. This paper, drawing heavily on the work of Michel Foucault, offers a genealogical account of the two concepts showing how they developed together and in relation to similar political forces in the eighteenth and nineteenth centuries. Thus it attempts to give a concrete meaning to the claim that sex and race are intersecting phenomena.

Research in zoos is an important scientific endeavor that requires several complex considerations in order to occur. Among those many considerations are the ethics involved in conducting zoo research. However, it is not always clear how zoo researchers should go about resolving any research ethics matters, even determining when some type of research ethics committee should be involved in those deliberations. Our paper attempts to provide some resolutions for these issues, namely in three sections: (1) a brief history of human (...) and animal research ethics, (2) general guidelines for zoo research ethics applications, and (3) theoretical, ethical dilemmas at the zoo. In each section, we consider pragmatic attempts to resolve any issues, as well as provide examples to illustrate our points. The primary focus of the paper is to facilitate consideration of the wide array of ethical factors any zoo researcher might encounter, as well as provide a basic set of ethical guidelines for zoo research. We also emphasize the importance of the welfare of the animals for all zoo research projects. (shrink)