In Mengzi 6A4, Gaozi states that “yì 義 (propriety, rightness) is external, not internal.” In 6A5, Meng Jizi says of yì that “...it is on the external, not from the internal.” Their defenses are met with Mengzi’s resistance. What does he perceive and resist in these statements? Focusing on several key passages, I compare six promising interpretations. 6A4 and a relevant part of 2A2 can be rendered comparably sensible under each of the six. However, what Gaozi says in 6A1 (...) clearly is evidence to Mengzi that, of the six views, Gaozi holds three although he does not convey them in his statement. As for Meng Jiz’s defense of his statement, Meng Jizi cites a special occasion where one is required to act one way even though one would feel a different way. Mengzi’s response has been traditionally interpreted as boiling down to a dissenting opinion about empirical psychology, that the agent on that special occasion would in fact feel the same way as they ought to act. But on a more charitable reading, the point Mengzi makes is conceptual: Though the satisfaction of yì may not require that the feeling and the act align perfectly in this case, cases where the alignment obtains are conceptually prior. This not only refutes Meng Jizi’s statement but also enables a more elegant explanation of why the Mengzi rightly has no record of Mengzi affirming that yì is internal. I conclude that 6A5 itself uniquely favors one interpretation, as far as Meng Jizi’s position is concerned: How one feels is irrelevant to whether one satisfies yì. (shrink)

This article examines some of the interactions between law, science, and society taking place during a trial. By focusing on a restricted set of scientific and nonscientific actors engaged in negotiating the meaning, relevance, and reliability of scientific evidence, the article illustrates how the categories—law, science, and society—are inextricably interrelated in the legal negotiations and outcome. The introduction of scientific evidence into adversarial legal settings produces strategies, opinions, and claims that are not shaped solely by scientists, lawyers, or legal processes. (...) The situated law-science negotiations provide a site where social order and scientific knowledges are mutually constituted. The outcome of specific law-science interactions will be open to a range of readings and constraints that are not reducible to some putatively correct scientific understanding nor adequately described as the distortion of scientific evidence by the legal system. (shrink)

This study analyzes the theory of revenge through the perspectives of propriety (禮) and law (法), as well as private morality (私義) and public law (公法). It examines how the conflicts among these elements were interwoven in revenge cases and judgments during the reign of King Jeongjo 正祖. Additionally, it explores how King Jeongjo’s compassionate approach to criminal justice was demonstrated in these cases. The theory of revenge reveals the clashes between propriety and law, as well as between (...) private morality and public law. By instituting revenge laws that sanctioned acts of vengeance, the legal system aligned itself with the “duty of revenge” prescribed by propriety. The Joseon legal system actively incorporated the concept of revenge into its framework. The state not only facilitated public acts of revenge through legal judgments, integrating punitive power into the sphere of justice, but also pardoned private acts of revenge under the provisions of revenge laws. Notably, King Jeongjo applied these laws to issue pardons for acts of revenge and, in cases where applying such laws proved challenging, he relied on universal principles (天理) and human sentiments (人情) to justify forgiveness. This approach sought to realize the Confucian governance principle of propriety by actively honoring private moral obligations. It exemplified a ruler’s implementation of the moral standard of equity and balance (絜矩) in governance. (shrink)

In Philosophy and International Law, David Lefkowitz examines core questions of legal and political philosophy through critical reflection on contemporary international law. Is international law really law? The answer depends on what makes law. Does the existence of law depend on coercive enforcement? Or institutions such as courts? Or fidelity to the requirements of the rule of law? Or conformity to moral standards? Answers to these questions are essential for determining the truth or falsity of international legal skepticism, and understanding (...) why it matters. Is international law morally defensible? This book makes a start to answering that question by engaging with recent debates on the nature and grounds of human rights, the moral justifiability of the law of war, the concept of a crime against humanity, the moral basis of universal jurisdiction, the propriety of international law governing secession, and the justice of international trade law. (shrink)

The semiotic investigation of the divine or transcendent authoriality of religious law involves, in the context of discussions concerning the propriety or impropriety of the influence of religion in “secular” political and legal systems, preliminary boundary work to discern the meanings of “religion”, “secular”, and “belief.” Jeremy Waldron’s account of the propriety of religion in “secular” politics, mirroring but reversing John Rawls’ account of religion’s impropriety in that context, can be contrasted with neo-Calvinist (and other) conceptions of pluralism (...) and the inevitability of fundamental “beliefs” in all political and legal thought. In the latter perspectives, religious believers are neither unique in their appeal to transcendent values, nor relegated to advancing theocracy (because pluralism is conceived as a religious value rather than religion’s opposite). A workable alternative to the conventional discourse of religious influence in politics and law is therefore evident. (shrink)

This article explores the tension between the fundamental perception that the provision of privatized services such as health and social care remain inherently public and the absence of any clearly developed juridical concept of ‘public services’ as the basis of judicial control in accordance with public law standards. In a series of recent cases, courts have had the opportunity to determine whether private contractors engaged in the provision of local authority residential and social care services are amenable to judicial review (...) or susceptible to direct vertical proceedings under the Human Rights Act, on grounds that they are performing functions which are by their very nature quintessentially public. However, conflating questions of amenability to review and susceptibility to the Human Rights Act (hereafter HRA), courts have refused to adopt a test based on the public character of a body's functions, irrespective of the source of power. This article acknowledges the constitutional propriety and rationality of a broad based functional test of review. Nevertheless, it is argued that if courts continue to resist such a test, Parliament must legislate to ensure judicial regulation of decisions by independent contractors of health and social care services, in accordance with public law principles and HRA obligations, which transcend the boundaries of their strict contractual undertakings. (shrink)

How do we ensure agents formulating legal statements are not systematically in error? In this paper I assume that the success of legal statements follows from the fact that propositions expressed by legal statements adequately represent legal reality. I argue that the content of legal statements hinges implicetly on the sources of law and methods in which we attribute meaning to these sources. In this regard, I identify the primary obstacle to the success of actions that consist of asserting legal (...) statements as a systematic failure to refer to the proper method of interpretation by the agents formulating these statements. The paper explores several solutions to this challenge, focusing on the solution explaining the success in referring to the proper method of interpretation in virtue of meta-interpretive considerations. Subsequently, the paper discusses a challenge to this solution following from the claim that there are many different theories of meta-interpretation, and there is no fact (neither natural, nor conventional or intentional, anchored in the collective consciousness of society), determining that one of them is more accurate than the other ones. Given all the intricacies, this study focuses on exploring a coherent framework for understanding how different interpretive methods and meta-interpretative theories can be evaluated and applied in legal practice. It seeks to articulate a model that accommodates the diversity of interpretations while striving for a reasoned consensus on how legal texts should be understood and applied. (shrink)

Mehlman and Massey examine possible legal responses to the issues that confront physicians faced with treating patients who have insufficient financial resources. This commentary explores the same issues from the perspective of ethics, including a comparison of the way law and ethics interpret the physician-patient relationship, the ethical obligations of physicians that are inherent in that relationship, and the propriety of Mehlman and Massey's legal and ethical proposals to ameliorate physicians' conflicting obligations in providing or withholding care on grounds (...) of conservation of society's resources. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Commandment against the Law Writing and Divine Justice in Walter Benjamin’s “Critique of Violence”Tracy McNulty (bio)Pierre Legendre has shown that the Romano-canonical legal traditions that form the foundations of Western jurisprudence “are founded in a discourse which denies the essential quality of the relation of the body to writing” [“Masters of Law” 110]. It emerges historically as a repudiation of Jewish legalism and Talmud law, where the rite (...) of circumcision encodes the subject’s entry into law as an “allegiance to the absolute Writing,” or the “relationship between the human subject and the logical place of the Other” [110–11; see also “les juifs”]. In this shift, one understanding of writing is displaced by another: the material inscription of the letter, as an incommunicable limit or cut, is supplanted by the fantasy of what Legendre calls a “living writing,” a writing “in the heart” that promotes an ideal of perfect communication in which nothing is lost, in which meaning is lodged in an absolute Other who guarantees all knowledge. In his words, “we belong to a culture in which a mystically alienated human body stands in the place of the absolute book. The state has emerged from this structure.... Its basic characteristics can be set out by means of a fundamental Romano-pontifical maxim: the Emperor carries all the archives in his breast (omnia scrinia habet in pectore suo)” [“Masters of Law” 109].The ultimate theological source of this Roman maxim is Paul’s polemic against the Jewish law in the Epistle to the Romans. Paul’s polemic is structured by a distinction between two orders of law: the “law of God” and the “law of sin.” The first is associated with the intelligible “spirit” of the law, which is “written in the heart,” the second with the prescriptive “letter” of the Jewish law, which compromises or corrupts the first by binding it to a particular representation and consigning it to written form. Paul’s solution is to bypass the law, to bypass representation, and perhaps even language itself. The prescriptive “letter” of the Jewish law must be sublated by the law of the spirit, such that “we serve not under the old written code but in the new life of the Spirit” [Romans 7: 6]. Christ, as the living embodiment of the law of God, upholds the spirit of the law by “fulfilling”––and so rendering obsolete–its written form.The doctrine of Christ as the “living law” sustains what Legendre describes as a “banalisation of writing” [“Masters of Law” 111], a disregard for its material inscription that holds the letter to be nothing more than a placeholder, a flawed or incomplete representation of a meaning or truth that is itself beyond words. At the same time, it makes possible the legal and political fantasy of a living writing, located in a single body understood as the site of interpretive authority. The extraction of a meaning or truth from the intractable letter becomes the ultimate aim of the legal order and the most lofty task of its sovereign interpreter, uniquely charged with animating the dead letter. This notion permeates what Peter Goodrich describes as “the most standard protocols of legal reading,” according to [End Page 34] which “it is not the letter but the spirit that determines the meaning of the law”:The text is composed of dead letters (litera mortua); the rule is no more than a “mute judge,” a sleeping form, requiring the interposition, anima legis, of jurist or judge.... [T]he meaning of the law is internal to its living body, viva vox iuris or lex loquens, its image, interpreter, or legislator. In classical terms it is spelled out by reference to something beyond words: “to know the law is not to know the words of the law, but its force and power.” In a renaissance formulation we are similarly told that “no words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison to truth, faithfulness and integrity. For verba menti, non verbis servire debet; words, are made as instruments to serve and express the mind, and not to command it.”[229–30]1... (shrink)

Patricia White has recently attempted to construct an ethically valid notion of forgiveness that will serve educational purposes and contribute to the moral development of pupils in schools. She distinguishes between a strict view that requires repentance before forgiveness, which she rejects, and a relaxed view that does not require repentance, which she endorses. In this reply I defend the strict view of forgiveness against her criticism and challenge the ethical propriety of the relaxed view. I shall argue that (...) her support for the relaxed view both runs counter to our deepest moral intuitions and serves to undermine the moral law and moral endeavour. (shrink)

The ethical propriety of routine male infant circumcision has been debated in journals of medicine and law for many years. This article explores the issue from historical, medical, and moral perspectives. Two essentially different forms of circumcision (one more drastic than the other) are distinguished. Discussion focuses on the effects of the more radical kind of nontherapeutic surgery on a normal healthy child’s body: whether it constitutes a mutilation, whether it is medically warranted, and whether it is ethically defensible (...) in light of general philosophical principles and Catholic moral doctrine. The conclusion questions the social bias favoring parental choice to circumcise a non-consenting son. National Catholic Bioethics Quarterly 12.1 (Spring 2012): 99–128. (shrink)

In this paper, I argue that within the Japanese social context, the act of suicide is a positive moral act because the values underpinning it are directly related to a socially pervasive moral belief that any act of self-sacrifice is a worthy pursuit. The philosophical basis for this view of the self and its relation to society goes back to the writings of Confucius who advocated a life of propriety in which being dutiful, obedient, and loyal to one's group (...) takes precedence over the desires of the individual selves that make up the group. I argue that this philosophical perspective poses formidable challenges to Japanese psychiatry (which accepts a contrary western perspective) because, as western psychiatry is based on the concept of autonomous individuality, the Japanese conceive of the self as socially embedded. Because suicide in Japan is viewed as a potentially honorable, virtuous, and even beautiful act of self-sacrifice expressing one's duty to one's group, the western perspective is quite foreign to the Japanese self-conceptual framework. Therefore, since Japanese psychiatry and law have embraced the western medical tradition of viewing suicide as a non-rational response to mental illness, which runs counter to the cultural view that suicide is a moral (and rational) act, I argue that western explanations of suicide present significant cross-cultural problems for Japanese psychiatry. (shrink)

This chapter presents some of Ayn Rand's express condemnations of non‐objective law and then indicates the underlying principles of government that explain these assessments. It also discusses the implications of Rand's view for the traditional Natural Law‐Positivism dispute over the authority of law and for the moral status of the Rule of Law. In particular, the chapter shows why the Rule of Law, on what she regards as a proper conception of objective law, is emphatically a moral ideal. The broad (...) scope of Rand's conception of objective law is explained not only by her view of the function of government, but also by her understanding of objectivity itself. In the sense in which the term applies to man‐made things, objectivity is normative. Rand's analysis suggests that the propriety of the Rule of Law rests, at bottom, in its objectivity. The Rule of Law banishes subjectivism. (shrink)

Charts the history of the Jesuits in France, their organization, teaching methods and aims, with particular reference to La Flèche and the relationship between Christianity and Classical philosophy in the philosophical curriculum followed there by Descartes. This was the Jesuit version of the liberal arts, based mainly on works by Aristotle, including dialectic, natural philosophy, mathematics, metaphysics, and ethics. Speculation as to Descartes's activities in the period 1614–1618, in between finishing his studies at La Flèche, his law studies, and joining (...) Prince Maurice of Nassau's army. (shrink)

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a (...) revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities. This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to—and even defiance of—the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally. (shrink)

The essays in this volume constitute a series of investigations into the limitations on thought and power as conceived by thinkers in the medieval West and they draw on material ranging from law to literature. The author deals with limits on the human desire for knowledge, the passion with which knowledge could legitimately be pursued, and the propriety of the knowledge sought, as well as the limits that might be tolerable and tolerated in the case of royal incapacity or (...) misbehaviour. One particular focus is the work of Dante Alighieri, and these ideas are traced across a wide range of his thought. Chronologically the essays run from Augustine and the Gnostics through to Shakespeare. (shrink)

ABSTRACTIn this article, I explore the complex and unappreciated relationship between the moral and political thought of Cicero and Adam Smith. Cicero’s views about justice, propriety, and the selfish love of praise find new expression in Smith’s Theory of Moral Sentiments. I illustrate the important ways in which Smith adopts – often without attribution – Cicero’s precepts and moral judgments. I then go on to demonstrate how Smith strips those Ciceronian conclusions from their original justifying grounds in teleology and (...) natural law. In their place, Smith injects his own psychology based in sentiments as a new account of why it is that we prefer virtue and justice to their opposites. By exploring this relationship, I hope to shed light on an important dynamic whereby modern thought has creatively adapted classical moral and political concepts. (shrink)

Creative Class, Creative Economy, and the Wisdom Society as a Solution to their Controversy The paper briefly introduces the notion of creativity, linking the concepts of creative class and the related creative economy that are considered by Florida and his followers as the driving force of the current social and economic development. The concept of creative economy and its quantification in form of the Creative Class Index 3T or the Euro-Creativity Index were submitted to strong critique.The critics overturn some key (...) issues of the concept of creative class with an indication that the creative people give priority in choosing the work from the place; and there is no or almost nil correlation of a perceptual representation of the persons of homosexual orientation and the high-tech growth which confirms the opinion that the assertion about higher creativity of homosexual persons is a myth only. The purpose of the article is the examination of propriety of the concept of creative class and its quantification at one hand, and the rightfulness of their critique at the other. The analysis of the axiology of the concept of creative class is the method of examination. From point of view of axiology probably the most significant characteristic of the creative class is its accompanying destruction of thee social capital of creative people and it substitution of the creative capital. The rise of creative class takes place in parallel with the implosion of values at which basis our Jewish-Christian civilization is established. To this Florida expresses rather vague attitude by a statement that all socio-cultural changes that accompany the rise of the creative class will have no favorable impact on society.Florida labeled creativity as a basic human law, furthermore, he announced the need for a new live style in which the quality of life will increase and people become better men. The concept of creativity as an instrument of urban planning evolved into a left-liberal ideology with elements of social engineering that is the most important finding of the axiological analysis. The second finding is the need to accept the meaning of creativity. By implication of the two findings there arises a proposal for wisdom as a new driving force of social and economic development. The conclusion is the contribution is a requirement for formulation of the concept of wisdom society that is currently likely absent in the academic world, and the statement that if the West will not create the wisdom society, it will lose the raison d'être of its existence. (shrink)

Free software introduces a challenge to the classical conception of individual rights. The model of software licensing given by the General Public License generates the question whether it constitutes an exercise or a wavering of copyright. It is argued in this paper that the later alternative is entrenched in the classical concept of freedom as autonomy, which, by its turn, is reflected in a classical conception of individual rights based on the model of propriety as a dominion over an (...) exclusive object (res). We provide grounds for a concept of non-exclusive individual rights, based on the notion of freedom as reciprocity, in order to obtain more solid legal foundations for the free licensing of software. The concept of freedom as reciprocity and the corresponding reconstruction of non-exclusive subjective rights achieved in this paper is an exercise in general theory of law and thus may be applied to other legal fields where the classical notion of freedom and the property of exclusivity do not fit properly. (shrink)

Hobbes could not have written Paradise Lost: the longest of his few references to the story of Adam and Eve drains their relationship of drama and complexity; most aspects of human sexuality he addresses only in classifying them as off limits because of their indecency, neglecting topics in some respects germane to the clarification of his philosophy; and his original English verse amounts to one line for each of that epic's twelve books. This short poem nonetheless represents an intriguing persuasion (...) to love written in his extreme old age. Moreover, his treatment of “LUST” in The Elements of Law takes a significantly non-judgmental form by the standards of his time, though not marking so substantial an innovation as Simon Blackburn takes it to be. Most importantly, the anti-puritanical thrust of Hobbes's attack on Presbyterian preachers in Behemoth again illustrates his capacity for entertaining—however briefly—an essentially uncensorious view of human sexuality, this time in conjunction with a critique of sexual repression, as imposed by those clergymen in their role as spiritual advisers, that sheds invaluable light on the self-consciously scandalous libertinism of younger contemporaries often identified in his own day and since as “Hobbists”. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:William Righter GOLDEN RULES AND GOLDEN BOWLS In one of his last interviews Michel Foucault remarked on the relation of any search for a perfect existence to the source of those forms of obligation which paradoxically make it possible, and hence on the variable shapes of the interdependence of the beauty of life with the moral understanding by which we accept the nature of our obligations. He sees this (...) in terms of the way these obligations establish themselves, by recognition and submission, by what he calls "the mode of subjection {mode d'assujettissement), that is, the way in which people are invited or incited to recognize their moral obligations. Is it, for instance, divine law, which has been revealed in a text? Is it a natural law, a cosmological order, in each case the same for every living being? Is it a rational rule? Is it the attempt to give your existence the most beautiful form possible?"' If we wish to do something like finding the most beautiful form of life, we face problems of moral calculation, we must formulate principles of choice, and above all learn to make our submission to the necessity such principles may imply. "What is the mode d'assujettissementT'' Foucault asks: It is that we have to build our existence as a beautiful existence; it is an aesthetic mode. You see, what I have tried to show is that nobody is obliged in classical ethics to behave in such a way as to be truthful to their wives, to not touch boys and so on. But if they want to have a beautiful existence, if they want to have a good reputation, if they want to be able to rule others, they have to do that. So they accept those obligations in a conscious way for the beauty or glory of existence. The choice, the aesthetic choice or political choice, for which they"decide to accept this 262 WtLLiAM Righter263 kind ofexistence—that's the mode d'assujettissement. It's a choice, a personal choice.2 At some levels this choice looks quite simply like a calculative sacrifice of the lesser thing for the greater. But an important element of the incommensurate enters into the choice. The beauty, the glory of the thing far surpasses the small normative commitments one undertakes for its sake, both in degree and in belonging to another and superior order. The beautiful form of existence is separated by some enormous gulffrom those social and human arrangements that must be submitted to it. Yet one is aware of basing the beauty of life on these lesser forms of obligation. Many things may be subjected, as one sees in The Golden Bowl, to the greater principle, where almost anything may be sacrificed as long as the beauty of that principle is in view. But how do we assess this disproportion and see the propriety of subjection established? For subjection could come to serve many principles, and in The Golden Bowl we shall observe the studied operation of subjection in a world where principles are continuously and meticulously examined and re-examined. The Foucaultian conjunction of obligation and the "glory of existence" touches the heart of a work where the fascination with the incommensurate moves uneasily between alternative versions of that glory. What is the overriding principle that underwrites and legitimates such anexistence?James's involvementwith such a "particular attaching case" seems to proceed from the fullest sense of the difficulty, from the fullest rendering of incompatible versions ofthat existence, brought into the closest and tightest formalbond. The very simplicity of the action somehow produces an enforced contemplation of a bizarrely closed world, in which the dynamics of the two marriages shape a conflict that seems inevitable, even strangely natural. It can be expressed in a few words. A widowed American millionaire, Adam Verver, has in his late forties retired to the life of a collector of objects of art. In his travels with his daughter Maggie, they collect also ahusband forher, a Roman prince. To ease the consequences for her father Maggie promotes his marriage to her closest school friend Charlotte. Unknown to the Ververs she and the Prince were once lovers... (shrink)

Despite the signpost prominence of Hobbesian positions in theories of international relations and global justice, the ground and nature of Hobbes’s claim that justice and injustice are non-existent outside the State are poorly understood. This paper aims to provide the first comprehensive explanation of this doctrine . I argue that Hobbes offers two distinct arguments for Justicial Statism: the Covenant and the Propriety Argument. Each argument is premised on a different conception of justice and stresses different implications of the (...) natural right to all things. The Propriety Argument is based on distributive justice. First introduced in Leviathan, this argument has received little scholarly attention, although it is no trivial addition: the Covenant Argument alone cannot establish Justicial Statism. My reconstruction highlights two further, hitherto ignored presuppositions of Hobbes’s Justicial Statism: his rejection of natural rights governed by justice and his claim that violations of natural law do not wrong non-divine agents. (shrink)

With the rapid development of biotechnology, the physician is now more able to keep a patient's life going indefinitely on a life support system. The question of whether we should switch off the machine often arises when, according to the medical prognosis, there is no hope of recovery, or in a no-win situation where you are 'damned if you do and damned if you don't'. In a case which seems without hope, the dilemma of whether to prolong a life or (...) let it go disturbs many people, including health professionals as well as the family of the patient. In this painful situation, an ethics consultant who has received intensive training can help the concerned parties to arrive at what may be the best decision. How do Asians, especially those living in countries influenced by Confucian teachings, reach their answers? Three aspects are usually considered: (1) motivation and situation; (2) reasonableness and propriety; and (3) lawfulness and legality. More specifically, three questions are deliberated, as follows. (1) Where an action has already been taken, what motivated it and in what situation? Or, where a decision has still to be made, what should motivate it, and what are the relevant features of the situation? (2) Was the attempted resolution of the dilemma, or is its prospective resolution, reasonable and in accordance with traditional principles of ethical behaviour? (3) Was the action taken lawful, or would the intended action be lawful? This approach to finding an answer has been practised for centuries in Confucian society. But what is legal may not always be reasonable, what is reasonable may not always be compassionate, and what is compassionate may not always be either legal or reasonable. Principles to guide decision-making are therefore called for. This article, written by Michael Cheng-tek Tai in collaboration with Donald Hill, discusses the Confucian method of solving a problem and examines its principal features and how they are applied in ethics consultations. The article is followed by a series of questions and answers and a commentary by Donald Hill. (shrink)

Adam Smith’s work on moral sentiments is part of his much wider project of a science of man. And his most developed account of sympathy and sociability, provided in The Theory of Moral Sentiments, actually provides the central foundation for his wider, theoretical, or conjectural histories of law, language, government, and political economy. Indeed, his collected writings construct a space for thinking not only about the conjectural history of law, government, and society more precisely in terms of the mechanism of (...) sympathy and propriety. They also focus on the relationship between passions, actions, and political judgements. Smith’s theory of human and commercial sociability and sympathy nevertheless has various limits, and these can be understood in moral and political, commercial and historical, as well as providential and jurisprudential terms. My discussion here is an attempt to show how these limits interweave and interconnect across the body of Smith’s work. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Toward a Philosophical Anthropology of Nonhuman AnimalsKalpana SeshadriIn medieval iconography, the ape holds a mirror in which the man who sins must recognize himself as simian dei [ape of God]. In Linnaeus’s optical machine, whoever refuses to recognize himself in the ape, becomes one: to paraphrase Pascal, qui fait l’homme, fait le singe [he who acts the man, acts the ape].—Giorgio Agamben, Man and Animal[It is] then, not just (...) about animals. It concerns whether or not we can conceive of ethical relationships beyond either continuism or separatism, beyond identity politics or abyssal alterity.—Kelly Oliver, Animal LessonsI owe a deep debt of gratitude to the authors of the four provocative and challenging papers on HumAnimal: Race, Law, Language, not only for their thoughtful consideration of my work, but for pinpointing and interrogating an uncertain “failure” in my text, namely the absence of the animal as such. David Wood asks if it would be unfair to characterize HumAnimal as a work of “anthropocentric posthumanism.” Ellen Armour, too, wonders about animals and where they figure in my project. She suggests that HumAnimal doesn’t “quite cross the putative line between humans and animals as such,” but [End Page 197] she immediately and generously qualifies the observation as a “good thing, a productive thing.” Rebecca Tuvel, on the other hand, worries that in following Agamben, I appear to uphold “the binary logic that posits animals in opposition to humans because they lack language.” Animals, she suggests, “do seem to communicate with us in important ways, ways that are worth hearing.” These astute comments undoubtedly hit the mark; HumAnimal has nothing to say about animals as such, and despite the lure of the title, there is nary a squeak nor a snout that scuttles between the covers.Rather than explain or defend this absence, let me turn to the title of this response: Why a philosophical anthropology rather than a zoology of animals? Obviously, there is a paradox inherent in calling for an anthropology of autozoōn, instead of a philosophical zoology. The latter would perhaps entail theories of evolution and animal behavior, research areas better left to natural scientists than to philosophers and critical thinkers. The problem with zoology is the way in which the philosophical question is supplanted by biological fact. An anthropology of animals on the other hand, would mean that we focus on the question of what it means to be something. In other words, my sense is that the question of the animal in philosophy can only be raised as a question of human propriety. To lose sight of the fraught co-implication of human propriety and animal alterity is to lose sight of the contribution that philosophy can make to hum(an)animal studies. Thus, where the animal is concerned what we must think is not merely whether the animal has language, whether we are in some kind of biological or social continuity with it, or whether between the animal and human is a condition of implacable alterity, a gulf that cannot be breached. We must also think the kind of necessity charged by the animal as such for thought or for any thinking to take place, and for any interrogation of (human) being. In other words, to follow Derrida in his deconstruction of the animal as such, the animal that is only a word, (l’animot) an abstraction that refers to nothing and everything, an idea of nonhuman life predicated on the ideal of man, must we not abandon, once and for all, the natural attitude toward animals? Must we not begin with the acknowledgment that the animal as such cannot be spoken of, that animals as such do not exist, but what exists is the signifier “animal” as the necessary correlative to any thought, construction or deconstruction of human-being? And that now in our current epoch of posthumanism, the strategic concept of “the natural animal” serves as an inconceivable ideal directing our ethics and our politics? Thus, I suggest that what we must contend with today, what must be encountered not once and for all but repeatedly, is the logical non sequitur that confronts us; that is... (shrink)

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to (...) recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in virtue of that which we distribute and equalize that our policy formulations treat us as politically “counting” or “mattering” for purposes of social aggregation and maximization. To attend systematically to this form of inter-translatability, with a view in particular to that which maximization formulations latently prescribe that we distribute and equalize, might be called “putting distribution first.” It is explicitly to recognize the fact that all law and policy are implicitly as equalizing and citizen-defining as they are aggregative and maximizing, and to trace the many salient consequences that stem from this fact. It is likewise to recognize that all law and policy treat us as equals in some respects and as non-equals in other respects. Putting distribution first by attending explicitly to these “respects” yields greater transparency about how well or poorly our laws and policies manage to identify, count, and treat us as equals in the right respects. This Article works to lay out with care how to put distribution first in normative legal and policy analysis. The payoffs include both a workable method by which to test proposed maximization norms systematically for their normative propriety, and an attractive distributive ethic that can serve as a workable normative touchstone for legal and policy analysis. Indeed, the Article concludes, much — though not yet quite all — of our law can illuminatingly be interpreted as giving inchoate expression to just such an ethic. (shrink)

This book uses contemporary feminist insights to examine aspects of the classic social contractarians' arguments, concentrating upon the work of Hobbes, Spinoza ...

The distinction between moral values and others is not an easy one. There are easy extremes: the value that one places on his neighbor's welfare is moral, and the value of peanut brittle is not. The value of decency in speech and dress is moral or ethical in the etymological sense, resting as it does on social custom; and similarly for observance of the Jewish dietary laws. On the other hand the eschewing of unrefrigerated oysters in the summer, though it (...) is likewise a renunciation of immediate fleshly pleasure, is a case rather of prudence than morality. But presumably the Jewish taboos themselves began prudentially. Again a Christian fundamentalist who observes the proprieties and helps his neighbor only from fear of hellfire is manifesting prudence rather than moral values.1 Similarly for the man with felony in his heart who behaves himself for fear of the law. Similarly for the child who behaves himself in the course of moral training; his behavior counts as moral only after these means get transmuted into ends. On the other hand the value that the child attaches to the parent's approval is a moral value. It had been a mere harbinger of a sensually gratifying caress, if my recent suggestion is right, but has been transmuted into an end in itself. · 1. Bernard Williams, Morality , pp. 75-78, questions the disjointedness of these alternatives. I am construing them disjointedly. W.V. Quine, Edgar Pierce professor emeritus of philosophy at Harvard University, is the author of many influential works, including The Roots of Reference. "A Postscript on Metaphor," his previous contribution to Critical Inquiry, appeared in the Autumn 1978 issue. The present essay is being published in a festschrift, Values and Morals: Essays in Honor of William Frankenna, Charles Stevenson, and Richard Brandt. (shrink)

In his most recent book, Against Individualism: A Confucian Rethinking of the Foundations of Morality, Politics, Family, and Religion, Henry Rosemont defends against those who would call his reading of Confucianism—he sees it as a type of Role Ethics—a misinterpretation. Rosemont contends that Confucian Role Ethics is important for challenging individualism, even if it is somehow unfaithful to pre-Qin texts. He writes that he could "simply re-title" his book "Role Ethics: A Different Approach to Moral Philosophy Based on a Creative (...) Misreading of Early Confucian Writings". In Confucian Propriety and Ritual Learning: A Philosophical Interpretation, Geir Sigurðsson... (shrink)

Name der Zeitschrift: Der Islam Jahrgang: 93 Heft: 1 Seiten: 236-242.

In this contribution to the Common Knowledge symposium “Fuzzy Studies,” the authors, all of whom work in the field of science, technology, and society, begin from the assumption that, as Bruno Latour has put it, “we have never been modern.” They accept the STS thesis that, while modern practices purport to be entirely rational and coherent, on closer inspection they turn out to be as much noncoherent as coherent. This article poses the question of what forms “noncoherences” take and how (...) they are managed. The basic argument is that there is a range of styles of noncoherence or “modes of syncretism.” In small case studies, the authors identify six such modes or styles, which they term denial, domestication, separation, care, conflict, and collapse. Given that consistency and coherence seem less important now than they were once taken to be — and given that the conditions of possibility for purity are, in any case, in decline — this list and its supporting case studies, while not meant to be definitive, are offered as a way of understanding how practices that do not cohere may still function and fit together admirably. (shrink)

The redefinition of rights of equality and liberty by radical and deliberative democrats during the last decades of the 20th century resulted in the denial that a consideration of property is integral to political philosophy. Theorizing property as intrinsically political demands a return to Marx but on terms he may not have recognized. I outline a politics of property in this paper contending that there can be no universal justification for any regime of property. Property is by definition the institution (...) of a wrong. The articulation of something as property establishes a border, determining what can be owned, how far ownership extends, where it is limited, as well as terms of use and terms of abuse. It establishes a set of property relations, and defines a vocabulary of the proper. Here sovereign state power is enlisted to enforce relations of property beneficial to some, but not all. A challenge to any political regime must of necessity put in to question both the forms of proper behaviour, and the regime of property. These are intrinsically related to each other. I conclude by arguing that democracy is always improper. Property, in all of its forms entails enclosure. Enclosure requires the drawing and the maintenance of boundaries of exclusion and inclusion. The sovereign determination of the proper, as well as of the exception to the proper defines trespass. Trespass is a form of democratic enactment when, and if, it destabilises enclosure. (shrink)

To be radical about pornography used to mean that one favored less censorship; now it often means that one favors more. That political change reflects a shift in the dominant paradigm of pornography and its putative evils. Until quite recently, most people who believed pornography wrong thought that it offended against decency and propriety and was therefore obscene. That was certainly the view of the law. English judges first created the crime of obscene libel in 1727 on the basis (...) that such expression tended to corrupt the morals of the King's subjects, a thought that inspired most subsequent legislation in the common‐law world. Sometimes the underlying concern really was paternalistic: pornography degrades and corrupts its producers and consumers; the law forces them to become better people. More often, however, it was just moralism of the familiar sorts: the view that a majority of a community is entitled to enforce its moral views on the rest, either because that is democratic or because that is just what it means to be a community. The obscenity paradigm thus had two features. First, it was illiberal: it ranked personal autonomy below realizing the good, enforcing the majority will, or embodying communitarian values. Second, it was gender neutral: to understand the nature of pornography did not require theorizing relations between men and women. On the obscenity paradigm, pornography was a matter of virtue versus vice, majorities versus minorities. (shrink)

Doug Walton, who died in January 2020, was a prolific author whose work in informal logic and argumentation had a profound influence on Artificial Intelligence, including Artificial Intelligence and Law. He was also very interested in interdisciplinary work, and a frequent and generous collaborator. In this paper seven leading researchers in AI and Law, all past programme chairs of the International Conference on AI and Law who have worked with him, describe his influence on their work.

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Law’s Virtue: Fostering Autonomy and Solidarity in American Society by Cathleen KavenyEric E. SchnitgerLaw’s Virtue: Fostering Autonomy and Solidarity in American Society By Cathleen Kaveny WASHINGTON, DC: GEORGETOWN UNIVERSITY PRESS, 2012. 304 PP. $29.95In Law’s Virtue, Cathleen Kaveny calls those in Western liberal countries to rethink their fundamental framework of ethics and law through the guiding principles of autonomy and solidarity, understood through the Catholic context of Thomistic (...) virtue. The law operates not as the fence of individual isolation as it does in Enlightenment rights theory, whereby liberty is preserved through negative restraint, but as the teacher of a limited form of the virtues of prudence and justice (52). The law teaches this thin form of prudence through autonomy, which Kaveny takes from Joseph Raz as “the capacity to be the ‘part-author’ of one’s own life” (53). Solidarity, pulling from Pope John Paul II, correlates to a learned justice, in that it “attend[s] to the unseen members” of the community (54). It recognizes that the good of the community and the good of individual members are inexorably intertwined.The opening epigram of the preface, which sets the tone for the whole work, is a quotation from Isidore of Seville found in Aquinas: “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good” (xi). Kaveny argues that the phrases “possible to nature” and “custom of the country” need more attention in pluralist, democratic societies, because law is morally formed by its constituent community and there are deep disagreements within those communities. This gives a direction for how Catholics, and all citizens, should attempt to influence laws in these democracies. Because the law is a form of consensus over time, it should use severe sanctions such as criminal law only to reinforce the consensus that it represents. Tort and tax law are less severe tools that can encourage the moral direction of society, which, when used well, maintain the consensus of the law but still allow it to be a moral teacher.Kaveny’s practical thinking in this text does have some seeds of radical change. When she moves to the practicalities of life issues in the law—such as abortion, euthanasia, and genetics—she argues that the “entire fabric of the Anglo-American legal system” needs to add the concept of the “vulnerable” person to the “reasonable person” (79). In addition, her reframing of life issues contends that the Catholic view of issues like abortion is too different from [End Page 212] the “custom of the country” to make a change to the virtues and practices of other citizens. Instead, attention to the support necessary for families and social difficulties of economic poverty represents a way of using the law as a moral teacher while recognizing its limits (89, 156, 209). The book concludes with an incisive look at voting, in which Kaveny argues that the idea of issues-based voting is wrongheaded; instead, she urges voters to consider that they are voting for an individual who will take a broad moral stance and make a broad set of decisions (197 ff.).The quality of Kaveny’s clear thinking and moral consistency makes this book a pleasure to read—even for those who may disagree about the nature of the law or the virtues that Christians should bring to political, legislative, and judicial systems. This text, from its depth of legal and theological commitments, sets a high bar for further dialogue.Eric E. SchnitgerFuller Theological SeminaryCopyright © 2015 Society of Christian Ethics... (shrink)

This chapter argues that ethics plays an extremely important role in decision making and lawmaking in bioethics issues. These decisions are not simple case-by-case judgments; rather, they rest upon deeply considered ethical opinions. It also discusses the implications of this epistemic grounding for bioethics and its use of case law materials as an ethical resource. Finally, since many people base their moral judgments on religious beliefs, the religious implications of this legal-moral relationship are considered.

In lieu of an abstract, here is a brief excerpt of the content:Philosophy of Music Education Review 11.2 (2003) 185-193 [Access article in PDF] Response to Marja Heimonen, "Music Education and Law:Regulation as an Instrument" Raimo Siltala University Of Helsinki, Finland From a legal point of view, Marja Heimonen's dissertation and the extract published in this issue of PMER, "Music Education and Law: Regulation as an Instrument," presents a most important question: Should music education be regulated by law, and if (...) so, by what kind of legal instruments—by strict legal rules, by softer legal standards, by self-regulation, or by leaving the matter to the laissez-faire and "invisible hand" of the market, where economic efficiency takes over from legal regulation? Heimonen's dissertation is to my knowledge the very first of its own kind, combining elements from music education and the law and, indeed, legal philosophy in an imaginative and highly original manner. Her scholarly position between music education and law is a courageous one because she might invite critical comments equally from the two branches of science involved: the music educational and the legal philosophical one. Yet, she has a gained a profound understanding of the specific needs of music education and of the restrictions of law and legal regulation, and the two-sided approach is really one of the true strengths, and not weaknesses, of the scholarly work. Her approach strives mainly at a broad hermeneutical comprehension of the issue in the humanistic [End Page 185] tradition, but there are other elements involved, as well, related to the analytical or instrumental tradition.There is a large legal comparative part in the treatise, covering approximately one third of the whole thesis, with material drawn from Sweden, England, Germany, and Finland and the system of music education in each. The three legal systems have been chosen with good discretion: one with a common law background (England), one belonging to the Roman-Germanic tradition (Germany), and one from the Scandinavian legal tradition (Sweden), and the Finnish system of music education is then compared to all of them. The Swedish model is based on equal opportunity given to all the applicants with no entrance examinations held and as many willing children accepted to the music schools as is possible. The British system, or rather a "non-system," of music education is privately owned and market-based, with only a few regulations issued by the government and with an emphasis on the visiting peripatetic teachers, voluntary Saturday music schools, and the special schools founded for the musically talented. The German system, like the one in Finland, is based on formal entrance examinations and degrees passed, where both a professional career in music performance and artistic self-expression may be pursued as the primary goal of music education."The Swedes have Abba and Roxette, we the Finns have Kaija Saariaho and Ralf Gothoni"—along with Esa-Pekka Salonen and other world-class conductors, one might add—as Heimonen notes in the text, but why is that so? Does the difference in the outcome, in the sense of a breakthrough either in popular music groups or individual performers in classical music, lie in the system of music education and the legislative ideology at the back of it? Heimonen refuses to give a simple and straightforward answer to that question, declining to place the various systems of music legislation in an order of preference. Instead, she adopts a broadly humanistic and hermeneutical perspective to the issue, where the merits and the disadvantages of each legal system are taken on an individual basis. The Shakespearean question that is so boldly put forth by her, "viz. to regulate or not to regulate," is answered only with reference to a widely humanistic understanding of the complex issue of music education where the intrinsic values of artistic self-expression and the instrumental values of training future professionals in music performance, composing, and conducting, are contrasted with other, but where no winners or losers are identified by her.There would seem to be a connection between a certain legal system and its model of... (shrink)

Law and Evil presents an alternative evolutionary picture of man, focusing on the origins and nature of human evil, and demonstrating its useful application in legal-philosophical analyses. Using this representation of human nature, Wojciech Załuski analyses the development of law, which he interprets as moving from evolutionary ethics to genuine ethics, as well as arguing in favour of metaethical realism and ius naturale.

This article offers a normative analysis of some of the most controversial incidents involving police—what I call police-generated killings. In these cases, bad police tactics create a situation where deadly force becomes necessary, becomes perceived as necessary, or occurs unintentionally. Police deserve blame for such killings because they choose tactics that unnecessarily raise the risk of deadly force, thus violating their obligation to prioritize the protection of life. Since current law in the United States fails to ban many bad tactics, (...) police- generated killings often are treated as “lawful but awful.” To address these killings, some call on changes to departmental policies or voluntary reparations by local governments, yet such measures leave in place a troubling gap between ethics and law. I argue that police-generated killings merit legal sanctions by appealing to a relevant analogy: self-generated self-defense, where the person who engages in self-defense started the trouble. The persistent lack of accountability for police-generated killings threatens life, police legitimacy, and trust in democratic institutions. The article closes by identifying tools in law and policy to address this challenge. (shrink)

In "Behavioral Law and Economics: The Assault on Consent, Will, and Dignity," Mark D. White uses the moral philosophy of Immanuel Kant to examine the intersection of economics, psychology, and law known as "behavioral law and economics." Scholars in this relatively new field claim that, because of various cognitive biases and failures, people often make choices that are not in their own interests. The policy implications of this are that public and private organizations, such as the state and employers, can (...) and should design the presentation of options and default choices in order to "steer" people to the decision they would make, were they able to make choices in the absence of their cognitive biases and failures. Such policies are promoted under the name "libertarian paternalism," because choice is not blocked or co-opted, but simply "nudged." White argues that such manipulation of choice is impossible to conduct in people's true interests, and any other goal pursed by policymakers substitutes their own ends, however benevolent they may be, for people's true ends. Normatively, such manipulation should not be conducted because it fails to respect the dignity and autonomy of persons, what some hold to be the central idea in Kant's ethical system, and which serves to protect the individual from coercion, however subtle, from other persons or the state. (shrink)

The book offers the first analysis of the influence exercised by the concept of space on the emergence and continuing operation of international law. By adopting a historical perspective and analysing work of two central early modern thinkers – Leibniz and Hobbes – it offers a significant addition to a limited range of resources on early modern history of international law. The book traces links between concepts of space, universality, human cognition, law, and international law in these two early modern (...) thinkers in a comparative fashion. Through this analysis, the book demonstrates the dependency of the contemporary international law on the Hobbesian concept of space. Although some Leibnizian elements continue to operate, they are distorted. This continuing operation of Leibnizian elements is explained by the inability of international law, which is based on the Hobbesian concept of space, to ensure universality of its normative foundation. (shrink)

Abstract:Recently the scope of protections afforded those healthcare professionals and institutions that refuse to provide certain interventions on the grounds of conscience have expanded, in some instances insulating providers (institutional and individual) from any liability or sanction for harms that patients experience as a result. With the exponential increase in the penetration of Catholic-affiliated healthcare across the country, physicians and nurses who are not practicing Catholics are nevertheless required to execute documents pledging to conform their patient care to the Ethical (...) and Religious Directives for Health Care Services as a condition of employment or medical staff privileges. In some instances, doing so may result in patient morbidity or mortality or violate professional standards for respecting advance directives or surrogate decisionmaking. This article challenges the ethical propriety of such institutional mandates and argues that legal protections for conscientious refusal must provide redress for patients who are harmed by care that falls below the prevailing clinical standards. (shrink)

This paper explores organ donation through the perspective of Reconstructionist Confucianism. I argue that for organ donation in China to be morally permissible, public policy must conform to the norms of Confucian benevolence. Reconstructionist Confucianism appreciates benevolence as an objectively important feature of morality deeply connected to moral rules governing propriety, integrity, righteousness, and human freedom. Here, benevolence involves sincere affection for another as an intrinsic good, rather than as a means to achieve other purposes. It requires developing self-restraint (...) and proper respect for others. As I argue, family-based consent is essential for ensuring that organ donation conforms to such an understanding of benevolence and is, thereby, compatible with Confucian culture. Consequently, legislation in China should solidify family-based consent for organ donation to consolidate a benevolent family environment as the basis of morality, law, and social existence. (shrink)

This book uses contemporary analytical tools to provide basic accounts of values and principles, community and 'common good', justice and human rights, authority, law, the varieties of obligation, unjust law, and even the question of divine authority.