In this paper, I take issue with the widespread philosophical consensus that only victims of wrongdoing are in a position to forgive it. I offer both a defense and a philosophical account of third-party forgiveness. I argue that when we deny this possibility, we misconstrue the complex, relational nature of wrongdoing and its harms. We also risk over-moralizing the victim's position and overlooking the roles played by secondary participants. I develop an account of third-party forgiveness (...) that both demonstrates how successful, morally legitimate, acts of third-party forgiveness are possible and simultaneously highlights the particular moral risks that would-be third-party forgivers face. I conclude insofar as they are appropriately grounded and cautiously bestowed, at least some acts of third-party forgiveness contribute significantly to post-conflict repair. (shrink)

In recent years, third-party forgiveness has received renewed attention, much of it negative. While a few have undertaken important attempts to defend or expound accounts of third-party forgiveness, many suspect that it is incoherent, vicious, or both. If true, this would be bad news for Christians, for Christians rely on notions of third-party forgiveness for their accounts of salvation and pastoral authority. I think there is reason to think that some notions of third- (...) class='Hi'>party forgiveness can overcome the critics’ worries. In what follows, I argue that third-party forgiveness is more common, coherent, salutary, and diverse in species than many critics suppose. After considering key objections to third-party forgiveness, I offer a constructive account of it that makes sense of these objections while also defending the underlying concept and act. What emerges from this defense is a newfound appreciation for the diverse species of third-party forgiveness. Still, some of these species are more intelligible and safeguarded from declension than others, and I conclude by examining the limits of third-party forgiveness by considering its most contentious species. (shrink)

Kenneth Kipnis (2006) presents a normative defense of strict confidentiality, but it follows from an empirical claim that allowing breach would result in all parties being worse off, including, par...

John Stuart Mill's harm principle holds that an individual's freedom can only be restricted to prevent harm to others. However, there is an important ambiguity between a strong version, which limits legitimate interference to self-defense and therefore prohibits society from protecting third parties (those who are not its members), and a narrow version, which grants any society universal jurisdiction to prevent nonconsensual harms, no matter who is harmed. Mill sometimes appeals to the strong harm principle to preclude interference, (...) but elsewhere endorses measures (including humanitarian foreign intervention and animal cruelty laws) to protect third parties, suggesting that he subscribes only to the weak harm principle. This ambiguity regarding who it is that society has standing to protect has important implications for the scope of individual freedom. (shrink)

According to Theistic Defensive Incompatibilism, common theistic commitments limit the scope or explanation of permissible self-defense. In this essay, I offer six original arguments for Theistic Defensive Incompatibilism. The first four arguments concern narrow proportionality: the requirement that the defensive harm inflicted on unjust threateners not exceed the harm they threaten. Hellism, Annihilationism, and Danteanism each imply that narrow proportionality is rarely satisfied, whereas Universalism implies that killing never harms. The final two arguments concern wide proportionality, or the requirement (...) that defensive harm not excessively harm non-liable third parties. Omnisubjectivity and Divine Love imply that wide proportionality is rarely satisfied. (shrink)

It is broadly held that confidentiality may be breached when doing so can avert grave harm to a third party. This essay challenges the conventional wisdom. Neither legal duties, personal morality nor personal values are sufficient to ground professional obligations. A methodology is developed drawing on core professional values, the nature of professions, and the justification for distinct professional obligations. Though doctors have a professional obligation to prevent public peril, they do not honor it by breaching confidentiality. It (...) is shown how the protective purpose to be furthered by reporting is defeated by the practice of reporting. Hence there is no conflict between confidentiality and the professional responsibility to protect endangered third parties. *A longer version of this article will appear as “Medical Confidentiality” in The Blackwell Guide to Bioethics, ed. R. Rhodes et al. Oxford, UK: Blackwell, 2006. (shrink)

Self-defense and other-defense are uses of force against another person—an attacker—for the purpose of preventing the attacker from harming a victim. When such force is exercised by the victim, it is self-defense; when by a third party, other-defense. Self-defense and other-defense are preemptive uses of force because they occur before the acts they are intended to prevent occur. Thus, they operate in the realm of epistemic uncertainty. Victims and third parties can (...) never be certain the feared acts will occur. They can never be certain of what their consequences will be if the acts occur. They can never be certain what alternative exists to self-defense and other-defense for averting the feared harms. And they can never be certain what the status of the presumed attacker is—that is, whether the presumed attacker is culpable or nonculpable. Such epistemic points are addressed in this chapter. (shrink)

A familiar debate in first-past-the-post democracies is whether ideologically disenfranchised voters should cast their vote for minor party candidates. We argue that voting for minor party candidates will sometimes be the best strategic option for voters with non-mainstream ideologies. Major parties, as rational agents, will be ideologically responsive to genuine threats of defection. By voting for a minor party, voters can simultaneously punish major parties for unfairly “bargaining” with their voting bloc and also signal their ideological reasons (...) for defecting. (shrink)

In this paper I bring together self-defense theory and animal rights theory. The extension of self-defense theory to animals poses a serious problem for proponents of animal rights. If, in line with orthodox self-defense theory, a person is a legitimate target for third-party self-defensive violence if they are responsible for a morally unjustified harm without an acceptable excuse; and if, in line with animal rights theory, people that consume animal products are responsible for unjustified harm (...) to animals, then many millions, if not billions, of otherwise law abiding and decent people will be legitimate targets for third-party self-defense violence on behalf of animals. I call this problem: the multiple inappropriate targets problem for animal rights. (shrink)

A person drives her well‐maintained car cautiously and alertly to the movies. Freak circumstances send the car out of control. It veers in the direction of a pedestrian whom it will kill unless she, or a third party, blows it up with a grenade. Whether the driver is liable to be thusly killed polarizes debates about the ethics of self‐defense. But debaters frequently conflate the questions of whether and by what means the driver is liable to be (...) killed. The paper separates these questions: it argues the driver's liability to lethal harm need not entail her liability to the grenade. (shrink)

It is broadly held that confidentiality may be breached when doing so can avert grave harm to a third party. This essay challenges the conventional wisdom. Neither legal duties, personal morality nor personal values are sufficient to ground professional obligations. A methodology is developed drawing on core professional values, the nature of professions, and the justification for distinct professional obligations. Though doctors have a professional obligation to prevent public peril, they do not honor it by breaching confidentiality. It (...) is shown how the protective purpose to be furthered by reporting is defeated by the practice of reporting. Hence there is no conflict between confidentiality and the professional responsibility to protect endangered third parties. (shrink)

In their thoughtful critiques of my article “Better than Best (Interest Standard) in Pediatric Decision Making,” my colleagues make clear that there is little consensus on what is (are) the appropriate guidance and intervention principles in pediatric decision making, and disagree about whether one principle can serve both functions. Hester proposes his own unitary principle, the reasonable interest standard, which, like the best interest standard from which it is derived, encourages parents to aim for the great, although Hester tempers it (...) with a pragmatic principle that allows consideration of cultural/family values and practical/financial/social/psychological circumstances. I reject the aspirational guidance principle because it is too demanding, and I also reject the notion that this pragmatic condition “gives permission for others to extol parents to give reasons” for their decisions, because it allows too much interference into the family and its decision making. Whereas the other respondents and I focus on whether and when third parties should intervene in the doctor-patient (surrogate) relationship, Navin and Wasserman mistakenly redefine intervention to include physicians’ behaviors that attempt to influence parents, ignoring the integral role of shared decision making—a bidirectional discussion in which physicians help patients (surrogates) select among reasonable medical options through education, and, when necessary, motivation or persuasion. Diekema and Salter focus on the harm principle for intervention, ignoring other conditions when intervention may be appropriate and institutions other than the state that may intervene. Paquette’s overly narrow interpretation of who has positive obligations to children fails to ensure their basic interests and needs are met. Finally, Bester claims the “need to choose the available option that best promotes or protects the child’s basic interests” is akin to a focus on best interest. But constrained parental autonomy does not require parents to choose the option that best promotes their child’s basic interests. Rather, it requires respect for broad parental discretion about how they raise their child unless their decisions fail to promote the child’s basic needs and interests. (shrink)

Conflict can profoundly affect individuals and their groups. Oftentimes, conflict involves a clash between one side seeking change and increased gains through victory and the other side defending the status quo and protecting against loss and defeat. However, theory and empirical research largely neglected these conflicts between attackers and defenders, and the strategic, social, and psychological consequences of attack and defense remain poorly understood. To fill this void, we model (1) the clashing of attack and defense as games (...) of strategy and reveal that (2) attack benefits from mismatching its target's level of defense, whereas defense benefits from matching the attacker's competitiveness. This suggests that (3) attack recruits neuroendocrine pathways underlying behavioral activation and overconfidence, whereas defense invokes neural networks for behavioral inhibition, vigilant scanning, and hostile attributions; and that (4) people invest less in attack than defense, and attack often fails. Finally, we propose that (5) in intergroup conflict, out-group attack needs institutional arrangements that motivate and coordinate collective action, whereas in-group defense benefits from endogenously emerging in-group identification. We discuss how games of attack and defense may have shaped human capacities for prosociality and aggression, and how third parties can regulate such conflicts and reduce their waste. (shrink)

Jewish law takes an approach to self-defense that differs dramatically from the conventional assumptions of Western secular legal systems. The central theme of Talmudic jurisprudence is that self-defense rests on a duty not to stand idly by while one's neighbor suffers. “Do not stand on the blood of one's neighbor,” as the point is cryptically put in Leviticus 19:16. This way of thinking about self-defense departs in two significant ways from common Western assumptions. First, it stresses that (...) the roots of self-defense are a duty rather than a right to act; second, it treats the case of third-party defense as logically prior to the first-party case of self -defense. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Literature Against Philosophy, Plato to Derrida: A Defense of PoetryPaul M. HedeenLiterature Against Philosophy, Plato to Derrida: A Defense of Poetry, by Mark Edmundson; 239 pp. New York: Cambridge University Press, 1995, $59.95 cloth, $17.95 paper.In this age of suspicion, it is refreshing to meet a believer like Mark Edmundson, someone merging “versions of freedom and fate” (p. 235). To many, such an accommodation is automatically (...) suspect; to many, a voice as sweet and civil as his is enough to make the molars ache. Not that Edmundson always makes believing look easy, but he dances rather gracefully with the “descendental” (p. 236) as he sings a late-millennial tribute to “the poems we love” (p. 237). His analysis of sophisticated doubters is impressive for its respectful tone. Edmundson models how a traditional literary intellectual uses, rather than bests, not only what important philosophers promise, but also what literature delivers.Edmundson’s discussion begins with Plato’s dismissal of literature as “a harmful diversion” (p. 7). This establishes the classical sources of philosophy’s antipathy to literature’s “pleasure and vitality” (p. 237) and sets the tone for an analysis of “descendentalism,” the various modern and postmodern searches for “ultimate truths” in “the bedrock” of experience (p. 22).To Edmundson’s mind, Freud’s general hypothesis that there are analyzable forces in the unconscious legitimizes various contemporary attempts to subordinate literature to philosophy. For example, de Man’s metaphor of blindness and insight follows Freud as “a figure for [the] dramatic irony... that arises when speakers say more than they know, and... where the surplus of meaning is taken in by some third party” (p. 42).Power issues are in the foreground as the critic becomes an analyst/interpreter of meanings that would otherwise be latent or repressed (p. 43). As Edmundson shows, de Man can transform symbol and allegory into instances of repression, tropes “that record... how they will be misunderstood...” (p. 49). Such pre-Derridean insights still allow de Man to offer an approximate defense of highly allegorical texts that “proffer images for their own correct deconstruction” (p. 49). Only these, finally, are “worthy of being called literature” (p. 49).In short, “de Man succeeded in transferring the Freudian model of repression from the sphere of analytic therapy to that of rhetorical analysis” (p. 53) thus initiating “a self-perpetuating order” (p. 55). Does Edmundson decry such orders? Generally, yes, but gently. One of the strengths of this book is Edmundson’s desire not to compete with his subjects; predominantly, he avoids for himself the authoritarian positions he suspects, choosing instead to stir up the “trouble between poets and philosophers... that keeps them in productive dialogue and competition” (p. 63).Derrida’s chief role in this competition, his polemic against presence, and “his proffered alternative” (p. 79), différance, remind Edmundson of de Man’s [End Page 538] analysis of repression. “Derrida seems to think,” Edmundson writes, that “the texts of Western metaphysics surrender their secret holdings when one simply listens...” (p. 80). Like Freud and de Man, then, Derrida is out to unlock what is repressed: “we might think of différance as... a name for those powers that Derrida’s deconstruction strives to release” (p. 81).For Edmundson, however, Derrida’s chief insight—that “philosophy is a tissue of words, manifold [not unified] in their associations”—contradicts philosophy’s self-described superiority to and dominance over literature (p. 84). For if both literature and philosophy are merely made of words, “how,” Edmundson asks, “can philosophy conceivably function as a stable template to discipline and delimit literary range, to disenfranchise poetry” (p. 84)? Walking this tightrope, Derrida dramatizes “the struggle between poetry and philosophy... [on] a level of extraordinary and unprecedented refinement” (p. 84). Edmundson’s purpose—as it was with de Man—is not to debunk Derrida, but to redescribe him: no longer metaphysics’ “fearsome terminator,” he is a philosopher “within” this tradition (p. 96). Because Derrida continues Freud’s idea of authority, his analyses are “disturbingly mistake-proof,” risking little themselves but asking of literature great sacrifices of “vital force” (p. 112).Edmundson then takes on historicism. After a... (shrink)

If free markets consist in nothing more than “capitalist acts between consenting adults,” and if in the old legal maxim “volenti non fit injuria,” then it seems to follow that free markets do no wrongs. But that defense of free markets wrenches the “volenti” maxim out of context. In common law adjudication of disputes between two parties, it is perfectly appropriate to cast standards of “volenti” narrowly, and largely ignore “duress via third parties” (wrongs done to or by (...) others who are not themselves party to the action). In economic markets, of course, those third-party effects are rife. But we want them to be rectified systematically, not piecemeal through particular cases between particular parties that happen to come to court. That is the proper province of political philosophers and system-designers, in critiquing and constraining the operation of the market. (shrink)

Despite worries about paternalism, when we are unjustifiably attacked, we are morally warranted, and sometimes required, to act in self-defense for the sake of our attacker to prevent him from committing this morally defiling act. Similarly, when a third party is unjustifiably attacked and we can assist without undue cost, we are morally warranted, and sometimes required, to act in third-party defense for the sake of the attacker as well as the victim, to prevent (...) the attacker from committing this morally defiling act. The case for these claims can be extended to national defense and humanitarian intervention. (shrink)

Third-party intervention has been the focus of recent debate in self-defense theory. When is it permissible for third-parties to intervene on behalf of an innocent victim facing an unjustified attack or threat? In line with recent self-defense theory, if an attacker is morally responsible for their actions and does not have an acceptable excuse then it is permissible for third-parties to use proportionate violence against them.

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 40.1 (2002) 123-124 [Access article in PDF] Book Review Textes philosophiques: conclusions philosophiques. Dissertation en deux parties sur la vision des vérités en Dieu et l'amour de la vertu. Régle du bon sens. De la liberté de l'homme Antoine Arnauld. Textes philosophiques: conclusions philosophiques. Dissertation en deux parties sur la vision des vérités en Dieu et l'amour de la vertu. Régle du bon (...) sens. De la liberté de l'homme. Épiméthée. Translated by Denis Moreau. Paris: Presses Universitaires de France, 2001. Pp. xi + 333. Cloth, FF 198.00. This collection should prove useful to anyone doing research on Antoine Arnauld, or more generally on philosophical theology in seventeenth-century France. The collection contains excellent French translations of three Latin texts, and a scholarly, if not critical, edition of a fourth text that appeared originally in French. They are accompanied by helpful [End Page 123] introductions and copious scholarly notes. A bibliography of 533 secondary works on Arnauld is provided.Studies of Arnauld's philosophy have concentrated on his polemics with Malebranche and Leibniz. Moreau suggests that Arnauld's philosophy is worth studying in its own right, and the texts he has selected provide a start for such a study. The first text, Conclusiones Philosophicae, is a set of theses composed by Arnauld for defense by one of his students in 1641, when Arnauld himself was twenty-nine years old. It is our only record of Arnauld's early philosophical thought. Moreau points out that Conclusiones anticipates themes developed by Arnauld during the rest of his long career, and that the text is also valuable as an indicator of the sort of philosophical questions being discussed in Paris at the time that Descartes wrote the Meditations. The original Latin and Moreau's French translation are given on facing pages.The second and third texts in the collection, Dissertatio Bipartita and Régles du Bon Sens, were parts of a debate within Jansenist circles near the end of Arnauld's life. Arnauld's friend, and his collaborator in the Port-Royal Logic, Pierre Nicole, had introduced into Port-Royal the speculation that every human being receives a "grace générale" that makes it possible for her to perform morally good actions. Arnauld attacked this theory in the late 1680s. Given the Augustinian assumption that an action is morally good only if it is directed to God as the agent's final end, and given that some people have never thought about God, the theory of a grace générale raised a philosophical question: How could someone who has no knowledge of God act out of the love of God? Nicole's answer was that the grace générale given to every human being brings with it a sort of implicit, confused, and imperceptible knowledge and love of God. In defense of this answer, Nicole refers to a thesis written by the Louvain theologian Gommaire Huygens, also a friend of Arnauld's, and defended by one of Huygens's students in 1688. Huygens says that anyone who has knowledge of a necessary and immutable truth sees that truth "in the first and uncreated truth, which is God," and that anyone who loves chastity or any other moral virtue, by that very fact loves "the eternal reason of chastity, which is in God." These positions seemed to support the notion that everyone might have an implicit knowledge and love of God even if some have never consciously thought about God. Arnauld attacked these claims in 1692 in his Latin Dissertatio bipartita, of which Moreau provides a French translation. Nicole was impressed and disturbed by the Dissertatio, confessing that he did not know how to respond. He asked another mutual friend of his and Arnauld's, the Benedictine François Lamy, to answer Arnauld. In reply to Lamy, Arnauld wrote... (shrink)

Evolutionary theories of morality, beginning with Darwin, have focused on explanations for altruism. More generally, these accounts have concentrated on conscience to the neglect of condemnation. As a result, few theoretical tools are available for understanding the rapidly accumulating data surrounding third-party judgment and punishment. Here we consider the strategic interactions among actors, victims, and third-parties to help illuminate condemnation. We argue that basic differences between the adaptive problems faced by actors and third-parties indicate that actor (...) conscience and third-party condemnation are likely performed by different cognitive mechanisms. Further, we argue that current theories of conscience do not easily explain its experimentally demonstrated insensitivity to consequences. However, these results might be explicable if conscience functions, in part, as a defense system for avoiding third-party punishment. If conscience serves defensive functions, then its computational structure should be closely tailored to the details of condemnation mechanisms. This possibility underscores the need for a better understanding of condemnation, which is important not only in itself but also for explaining the nature of conscience. We outline three evolutionary mysteries of condemnation that require further attention: third-party judgment, moralistic punishment, and moral impartiality. (shrink)

Volume 22 of _The Annual of Psychoanalysis_ begins with the provocative reflections of Jane Flax and Robert Michels on the current status and future prospects of psychoanalysis a century after Freud. Flax believes that analysis will not survive in the postmodern West if analysts cling to the medical model and the notion of analysis as a clinical science; Michels believes analysis will be revivified in the next century by reorganizing its training institutes within universities. A section on "Psychoanalysis and the (...) Visual Arts" includes John Gedo's probing examination of the inner world of Paul Gauguin and William Meissner's reflections on Vincent van Gogh as artist. Johann Michael Rotmann's examination of the transferential meanings of third-party payment within Germany's health insurance system is a timely consideration of issues that are increasingly salient for American analysts and therapists. A rich harvest of theoretical and clinical papers rounds out this volume of _The Annual_. In "A Time of Questioning," Leon Wurmser responds to the inner and outer challenges before analysis in a closely reasoned defense of the applicability of classical analytic technique to severely disturbed patients. Michael Hoit examines the noninterpretive, interactive aspects of the analytic relationship, arguing that the analyst's noninterpretive activities are intrinsic to treatment and must be incorporated into the theory of therapeutic action. In "Fables as Psychoanalytic Metaphors," Elaine Caruth describes some psychoanalytic metaphors contained within the lessons of the Aesopian fables, proposing that the fables address interpersonal and group conflicts that often involve moral issues. Wilma Bucci offers her "multiple code theory" as a new model of emotion and mind, based on current theory and research in cognitive science, that can account for clinical concepts and provide coherent framework for empirical research. And Ralph Roughton uses the case history of Laura to underscore the central role of repetition and interaction in the analytic process. Volume 22 will not disappoint readers of this distinguished continuing series. Like its predecessors, it is a thoroughly assembled collection responsive to the conceptual, clinical, and institutional challenges now before the field. (shrink)

As value chains become longer with increases in outsourcing and subcontracting, the challenges of fixing responsibility become more difficult. Using concepts from the literature on social networks, this paper considers issues of diffusion of responsibility and plausible deniability in such relationships. Specifically, this paper isolates three sources of denial of – or defense against – attributions of responsibility: connection, control and knowledge. It goes on to consider the effects on network density and actor centrality as third parties (tertius (...) illuminans) alter the structure of these networks. Finally, preliminary conclusions are considered including suggestions for addressing these new challenges as well as the potential for conceptual cross-fertilization between network analysis and organizationalethics. (shrink)

There are strong moral reasons to acknowledge that third parties can have the standing to forgive. Third-party refusals to forgive can reinforce the moral agency and value of women and disrupt the gendering of forgiveness. Third-party forgiveness can also be crucial for restorative justice aims, like recognizing the value of wrongdoers. Lastly, many victim-only accounts of forgiveness are problematic and utilize an individualistic conception of the self that reinforces the logic of misogyny. Victim-only accounts of (...) forgiveness can also restrict focus to the victim's suffering, thereby neglecting the importance of healing and the relevance of third-party forgiveness for facilitating healing. (shrink)

Third-party punishment (TPP) occurs when the perpetrator of a transgression is punished by an individual who is not the victim of the transgression and, therefore, not directly affected by it. As F...

The challenges of dealing with disclosure of HIV status cause frustration to health care providers and counselors. This frustration follows from the already known high risk to the third party on one hand and our ethical obligation to “respect persons” in terms of privacy and confidentiality on the other side. Given the stubbornly low rates of voluntary disclosure (partner notification) among couples, however, it is quite tempting to suggest a paradigm of routine third party disclosure to (...) identifiable sexual partners by health care providers. This might be the lesser of the two evils and might give better public health outcomes in the fight against HIV/AIDS in Sub-Saharan Africa. (shrink)

This article maintains that it is the constitutional responsibility of the courts, here the courts of the State of Michigan, to engage in judicial policymaking in the process of formulating common law rules. The article is written in response to the views expressed by some Justices of the Michigan Supreme Court that separation of powers concerns should impose significant limits on the power of the courts to establish and develop the common law of Michigan. Specifically, the contention is that policymaking (...) is exclusively the province of the legislature, so that the courts cannot properly formulate common law rules that may have significant social and economic effects. The article strongly disagrees with the proposition that there is any kind of constitutional constraint, either prudential or structural, on the power, and indeed, the constitutional responsibility of the Michigan courts (or the courts of any state) to engage in judicial policymaking in the process of formulating common law rules.The judicial power given to the Michigan courts by the Michigan Constitution includes the power to do what courts have always done in the Anglo-American legal system. The judicial power gives the courts the responsibility to adjudicate controversies between private persons and in the process to develop a common law through the workings of binding precedent and stare decisis. In so doing, the courts may properly take into account considerations of social and economic policy just as the legislature does when it engages in the process of enacting legislation. The difference between what the courts do and what the legislature does is a difference in process, not a difference in substance. Judicial policymaking takes place within the judicial process, that is, in the adjudication of controversies between persons in which the courts promulgate common law rules. The common law develops in a line of growth through the workings of binding precedent and stare decisis, and to the extent that there are limitations on the development of the common law, these are limitations that inhere in the judicial process itself. When the courts, for example, consider whether a new claim or a new defense should be recognized by the common law, they must consider whether that new claim or defense properly follows in the line of growth from existing doctrine and precedent. But if the courts conclude that it does, that is, if the claim or defense is consistent with the line of growth of existing doctrine and precedent, the courts are not constrained from recognizing the claim or defense on the ground that the substance of the claim or defense is a matter for the legislature rather than for the courts or that the resulting common law rule may have significant social and economic effects. The legislature, in contrast, enacts legislation through the legislative process. That process is a freewheeling one, often dependent on political compromise and completely unrestrained by the kind of limitations that inhere the judicial process. There is no legislative concept of line of growth, and the legislature can and often does enact legislation that brings about fundamental societal change or reverses the course of public policy. In our constitutional system, the most important questions of public policy are, of course, determined by the Legislature. Where the legislature disagrees with the policy choices reflected in a common law rule, the legislature has the power to enact legislation changing the common law rule. But there are many areas of private law where the legislature has not acted. In our constitutional system, where the matter in issue is not covered or preempted by legislation, the courts may formulate a common law rule to cover that matter, and in so doing may engage in judicial policymaking. Judicial policymaking is a part of the development of the common law, and the courts cannot avoid their responsibility to engage in judicial policymaking to the extent that it is necessary in the process of formulating the common law. As a constitutional matter, there are no separation of powers considerations that prohibit the courts from engaging in judicial policymaking. This part of the article traces judicial policymaking and the common law back to the seminal writings of Oliver Wendell Holmes, Roscoe Pound and Benjamin Cardozo.The article then discusses at length judicial policymaking and the development of the common law in Michigan. It shows that the clearest history of judicial policymaking in development of the common law is the liability-limiting rules of the late nineteenth century that were promulgated in the wake of the Industrial Revolution to protect the newly-emerging industries. During that time the courts in Michigan and elsewhere grafted on to the general principles of negligence law liability rules such as assumption of risk, contributory negligence, and the fellow servant doctrine, all of which had the effect of denying recovery to workers and other victims of industrial accidents. Beginning in the middle of the twentieth century, however, the Michigan Supreme Court began excising its constitutional power to make changes in the common law, expanding significantly the scope of tort liability in Michigan. Emphasizing that "rules created by the court could be altered by the court," and that the court had a "corrective responsibility when dealing with judge-made law," the Court, in approximately a 30 year period: eliminated the imputed negligence doctrine, under which the driver's negligence was imputed to the passenger in the passenger's suit against a third party; eliminated charitable immunity as a defense to a tort action; held that a wife could maintain at tort action for loss of her husband's consortium; abrogated the defense of assumption of risk, which had been applied outside of the employment area, held that there could be recovery for pre-natal injuries and finally abolished contributory negligence as a complete bar to recovery in favor of a comparative negligence approach. In these cases the Court discussed the relevant policy considerations influencing their decisions with respect to the common law rule at issue. In the last quarter century, the Court continued to take into account policy considerations in developing the common law, but not infrequently there was disagreement on the Court as to where policy considerations should lead, with some Justices arguing that policy considerations supported the imposition of tort liability, while other Justices argued that they did not.The article concludes that it has been demonstrated that in the development of the common law of Michigan, the Michigan Supreme Court has at all times engaged in judicial policymaking. From the liability-limiting rules of the late nineteenth century designed to protect the newly-emerging industries in this state, to the Court's exercise of its power to change the common law in Michigan over a 30 year period by expanding significantly the scope of tort liability in Michigan, to its recognition of new claims, such as a child's right to recover for loss of a parent's consortium caused by a negligent injury, to its imposition of limits on tort recovery, such as the open and obvious doctrine, the Court has invoked considerations of policy in support of its decisions. In these cases, the Court's invocation of policy considerations was sometimes accompanied by substantial disagreement among members of the Court over where policy should lead, but at no time did the Court ever suggest that separation of powers considerations should somehow operate as a kind of restraint on the Court's use of policy in the development of the common law. It is the power and responsibility of the Michigan Courts under the Michigan Constitution to make policy choices in formulating the common law. (shrink)

In _Psychoanalytic Therapy as Health Care_, a timely and trenchant consideration of the clash of values between managed care and psychoanalysis, contributors elaborate a thoughtful defense of the therapeutic necessity and social importance of contemporary psychoanalytic and psychodynamic approaches in the provision of mental health care. Part I begins with the question of where psychoanalytic treatments now stand in relation to health care; contributors offer explanations of the current state of affairs and consider possible directions of future developments. Part (...) II looks directly at the conundrums that have resulted from the attempt to integrate psychotherapy and managed care, with contributors examining the ethical and legal dimensions of confidentiality, privacy, and reporting to third parties. Part III opens to wider consideration of the experiences of psychoanalysts under health care systems throughout the world. Finally, Part IV demonstrates the relevance of contemporary psychoanalytic approaches to a variety of contemporary patient populations, with contributors focusing on the applicability of analytically oriented treatment to AIDS patients, seriously disturbed young adults, and inner-city clinic patients. Collectively, the contributors to _Psychoanalytic Therapy as Health Care_ convincingly refute the claim that psychoanalytically informed therapy is an esoteric treatment suited only to the "worried well." Drawing on a wide range of clinical and empirical evidence, they forcefully argue that contemporary psychoanalytic approaches are applicable to seriously distressed persons in a variety of treatment contexts. Failure to include such long-term therapies within health care delivery systems, they conclude, will deprive many patients of help they need - and help from which they can benefit in enduring ways that far transcend the limited treatment goals of managed care. (shrink)

The prelims comprise: Background: The Concept of Information Management Clearing the Ground: What Professional Obligations are Not The Concept of a Professional Obligation The Duty to Diminish Risks to Third Parties A Defense of Unqualified Confidentiality Final Thoughts Notes.

Utility of third party funding is an undeniable fact, especially where a party is under financial strain, yet its increased usage in private arbitration has given rise to a number of substantive and procedural issues. In view of this, the present paper attempts to map the growing utility or otherwise of the mechanism of third party funding, and analyses its various nuances and legal sustainability within the framework of international arbitration. Further, an attempt is made (...) to analyse the ways and means of ameliorating the utility of third party funding and for enhancing its acceptance in the global arbitration community. (shrink)

The primary purpose of government is to secure public goods that cannot be achieved by free markets. The Coordination Principle tells us to consolidate sovereign power in a single institution to overcome collective action problems that otherwise prevent secure provision of the relevant public goods. There are several public goods that require such coordination at the global level, chief among them being basic human rights. The claim that human rights require global coordination is supported in three main steps. First, I (...) consider Pogge's and Habermas's analyses as alternatives to Hobbesian conceptions of justice. Second, I consider the core conventions of international law, which are in tension with the primacy of state sovereignty in the UN system. Third, I argue that the just war tradition does not limit just causes for war to self-defense; it supports saving innocent third parties from crimes against humanity as a just reason for war. While classical authors focused less on this issue, the point is especially clear in twentieth-century just war theories, such as those offered by the American Catholic bishops, Jean Elshtain, Brian Orend, and Michael Walzer. Against Walzer, I argue that we add intractable military tyranny to the list of horrors meriting intervention if other ad bellum conditions are met. But these results require us to reexamine the "just authority" of first resort to govern such interventions. The Coordination Principle implies that we should create a transnational federation with consolidated powers in place of a treaty organization requiring near-unanimity. But to be legitimate, such a global institution must also be directly answerable to the citizens of its member states. While the UN Security Council is inadequate on both counts, a federation of democracies with a directly elected executive and legislature could meet both conditions. (shrink)

The author, a physician, rejects a previous defence of a doctors' strike. There is little justification for strikes in general, still less for doctors' strikes, he claims. Should not doctors rather 'stand above the common herd' and set an example, he asks. Furthermore the whole idea of strikes in which a third and innocent party is deliberately punished in order to apply pressure on someone else is a 'a bizarre ethic indeed' and not to his knowledge justified under (...) any ethical theory. (shrink)

While prior ecolabel research suggests that consumers’ trust of ecolabel sponsors is associated with their purchase of ecolabeled products, we know little about how third-party certification might relate to consumer purchases when trust varies. Drawing on cognitive theory and a stratified random sample of more than 1200 consumers, we assess how third-party certification relates to consumers’ use of ecolabels across different program sponsors. We find that consumers’ trust of government and environmental NGOs to provide credible environmental (...) information encourages consumers’ use of ecolabels sponsored by these entities, and consumers do not differentiate between certified versus uncertified ecolabels in the presence of trust. By contrast, consumers’ distrust of private business to provide credible environmental information discourages their use of business association-sponsored ecolabels. However, these ecolabels may be able to overcome consumer distrust if their sponsors certify the ecolabels using third-party auditors. These findings are important to sponsors who wish develop ecolabels that are more credible to consumers, and thus encourage more widespread ecolabel use. (shrink)

In this case study from litigation, I examine the origin of Monsanto-sponsored articles published in toxicology journals and the lay media that were designed to create doubt in critical evaluations of the herbicide, glyphosate. The role of ghostwriting and the use of third-party academics in the corporate defense of glyhphosate reveal that this practice extends beyond the corruption of medical journals and persists in spite of efforts to enforce transparency in industry manipulation of the scientific literature.

DR JOSEPH BOBIK’S article The First Part of the Third Way is a notable contribution to the literature on the subject. Anybody who has wrestled with the text itself—a text as profound and disconcerting as anything St Thomas has written—will be grateful for the many fine elucidations the article provides, and will be grateful especially for the fact that he has kept to the text itself as given in Summa Theologiae I, q 2, a 3 and has not read (...) into it some argument of his own. This method is particularly helpful and fruitful when there is question of pointing to a flaw in the argument. Against Kant and against most critics of the argument no defence is possible, for no real effort has been made to understand the argument in its own terms, within its own ‘thought-world’—one can of course insist that the attack is misdirected, but this kind of non-discussion scarcely serves the common pursuit of truth and will never enlarge anybody’s horizons. Dr Bobik, on the other hand, is able to point to the exact proposition in the text which he finds faulty and he is in a position to situate this proposition in the general context of Thomist metaphysics. In such circumstances there is everything to be gained by a further examination of the proposition and its context. (shrink)

This paper offers a Thomistic defense of gossip as a licit means of protecting third parties from harm by known offenders. After first clarifying what constitutes gossip, it draws from Thomas Aquinas to identify the narrow set of conditions under which gossip might be both permissible and obligatory. It concludes by specifying how the duty to gossip might work in Christian institutions, and especially within institutions where there are weak systems of formal accountability.

Many believe that employment can be wrongfully exploitative, even if it is consensual and mutually beneficial. At the same time, it may seem third parties should not do anything to preclude or eliminate such arrangements, given these same considerations of consent and benefit. I argue that there are perfectly sensible, intuitive ethical positions that vindicate this ‘Reasonable View’. The view requires such defense because the literature often suggests that there is no theoretical space for it. I respond to (...) arguments for the clearest symptom of this obscuration: the so-called nonworseness claim that a consensual, mutually beneficial transaction cannot be ‘morally worse’ than its absence. In addition to making space for the Reasonable View, this serves my dialectical goal of encouraging distinct attention to first- and third-party obligations. (shrink)

Third-party fairness maintenance could win some reputational benefits, and it includes two methods: punishment and compensation. We predicted that the third parties' preference between punishment and compensation are affected by whether they are free to choose between the two methods, and the affection could be interpreted through reputational benefits. The present study includes two sections. In Study 1, the participants acted as fourth parties who were asked to rate the reputations of the third parties who had (...) chosen different response methods to an unfair result of the dictator game. The results showed that there was no reputational difference between the two methods when third parties were not free to choose, but the reputation of compensation was better when third parties were free to choose. In Study 2, the participants acted as third parties. The participants were asked to choose a method to respond to an unfair result of the dictator game. There were two reputational contexts: secret and open. The results showed that when third parties were not free to choose, they had no preference between the two methods under the two reputational contexts, but when third parties were free to choose freely, they prefer punishment under the secret context but prefer compensation under the open context. This study systematically reveals a reputational interaction between fourth and third parties, and verifies the affection of reputational benefits on the third parties' preference between punishment and compensation. (shrink)

The risks to groups posed by research involving human beings—including genetics research—should be conceived of as a species of third-party risks. The important task of protecting third parties from the risks posed by the conduct and the findings of research should not be assigned to IRBs because they are not designed or equipped to handle such a broad responsibility. The serious problems raised by third-party risks require an integration of policy-making and regulation that is beyond (...) the scope and competence of IRBs. (shrink)

The chapter asks how political protest that falls under the definition of a criminal offense should be evaluated, for instance, protest against the insufficiency of measures against climate change. It takes the perspective of criminal law theory and assumes that criminal law theory should integrate debates in moral philosophy and political philosophy. The author analyses the notion of civil disobedience and argues that it would be preferable to avoid this term. She is also critical regarding both the rediscovered focus on (...) conscience and recent literature in the field of political theory that proposes to supplement or replace civil disobedience with uncivil disobedience. Other than these current debates postulate, the author assumes that the judgment „politically legitimate“ is more demanding than the notion of civil disobedience. It requires a close examination of goals and the means that are used to put pressure on decision-makers. Attempts to deal with macro level risks such as the risks of climate change have to recognize that this requires genuinely political coordination and that it is not legitimate to instrumentalize third parties for the purpose of political protest. For the application of criminal law, this means that the term “danger” in the necessity defense (§ 34 German Criminal Code) must be interpreted narrowly. Punishment should not be mitigated based solely on the argument that protesters act with altruistic motives but only if protest is moderate and politically legitimate. (shrink)

It is widely accepted that only the victim of a wrong can forgive that wrong. Several philosophers have recently defended “third-party forgiveness,” the scenario in which A, who is not the victim of a wrong in any sense, forgives B for a wrong B did to C. Focusing on Glen Pettigrove's argument for third-party forgiveness, I will defend the victim's unique standing to forgive, by appealing to the fact that in forgiving, victims must absorb severe and (...) inescapable costs of distinctive kinds, a plight that third parties do not share. There are, nonetheless, significant, even essential, roles played by third parties in making forgiveness possible, reasonable, or valuable for victims of serious wrongs. I take a closer look at the links between victims, wrongdoers, resentment, and forgiveness in showing why the victim alone can forgive. (shrink)

I argue for the recognition of a particular kind of interest that one has in freedom of expression: an interest served by expressive activity in forming and discovering one’s own beliefs, desires, and commitments. In articulating that interest, I aim to contribute to a family of theories of freedom of expression that find its justification in the interests that speakers have in their own speech or thought, to be distinguished from whatever interests they may also have as audiences or (...) class='Hi'>third parties for speech. Although there are many differences among such speaker-centered theories, a core commitment that most share is that expressive liberty plays a fundamental role in securing or constituting some form of individual self-realization. My account is a defense and elaboration of what I take to be one specific way in which the nature of such self-realization should be understood. In my proposal, self-realization is sometimes internally related to the very activity of expression, viz, expressing ourselves is one way in which we come to form and know our own minds. (shrink)

This article proposes a novel defense of vaccine mandates: such policies are justifiable because they protect the capabilities of individuals who cannot cultivate individual immunity against infection. We begin by considering a nearby argument that has recently enjoyed popularity, which claims individuals have an enforceable obligation to get vaccinated because they have benefited from community protection (often referred to as ‘herd immunity’), and thus they ought to do their fair share in sustaining that public good by getting vaccinated. We (...) object, however, that this kind of argument misstates the ethical basis for vaccine mandates because community protection primarily protects unvaccinated people. We contend that the duty to vaccinate is not fundamentally an obligation to make a fair contribution to a public good from which vaccinated people benefit, but a duty to protect the wellbeing of otherwise vulnerable third parties. We flesh out our view by drawing on Martha Nussbaum's capabilities approach. (shrink)

The author’s idea is to stress the contradictory nature of the security phenomenon and to emphasize that excessive security — desired, required, or achieved — turns into its own destructive opposite and becomes a totalitarian threat. Real security that is essential for a meaningful life is achieved through a closely reasoned self-confidence and trust-based relationships with just a few others. Alienation by an individual of a self-defense resource in favor of third parties and structures leads to a totalitarian (...) cult of security that turns it into a farce. (shrink)

The lead article in the Hastings Center Report's November‐December 2020 issue reconsiders the rationale for requiring that patients have a prescription from a physician to obtain a drug. Madison Kilbride, Steve Joffe, and Holly Fernandez Lynch conclude that growing respect for patient autonomy should lead to a new default for drug access: drugs should be available over the counter unless there are special concerns about harms to third parties or about patients' ability to make decisions for themselves. This conclusion (...) would be a substantial reorientation of drug policy in the United States. Bioethics at a societal level is a theme in the second article, “The Social Risks of Science,” and throughout the issue. (shrink)

: Four principal arguments have been offered in support of requiring public and private third-party payers to help fund medical research: (1) many of the costs associated with clinical trial participation are for routine care that would be reimbursed if delivered outside of a trial; (2) there is a need to promote scientific research and medical progress and lack of coverage is an impediment to enrollment; (3) to cover the costs of trials expands health care and treatment options (...) for the sick; and (4) it is beneficial for private insurers to cover the costs associated with cancer clinical trials because doing so makes such companies more attractive to consumers. Although many see third-party-payer coverage as a victory for patients and for the future of research, requiring coverage of services provided in a trial beyond those that would be provided to a comparable patient outside the research context raises a number of concerns. (shrink)

This paper mounts a partial defense of the basic structure objection to the egalitarian criticism of productive incentives. The defense is based on the claim that some duties of justice are subject to a reciprocity condition. The paper develops this position via an examination of the debate between Andrew Williams and G. A. Cohen on publicity and incentives. Reciprocity is an intrinsic feature of a relational conception of social justice, not simply a requirement of stability. Not all duties (...) are conditional on reciprocity because some duties are owed to third parties, as well as to their primary targets. Some forms of exploitation may be unconditionally wrong, but not the specific kind of exploitation at stake when talented individuals accept market wages. (shrink)

Suppose that state A attacks state D without warrant. The ensuing military conflict threatens international peace and security. State D (I assume) has a justification for defending itself by means of military force. Do third parties have a justification for intervening in that conflict by such means? To international public lawyers, the well-rehearsed and obvious answer is “yes.” Threats to international peace and security provide one of two exceptions to the legal and moral prohibition (as set out in Article (...) 2[4] of the UN Charter) on using force as a means for resolving interstate disputes. Just war theorists are not as verdictive. Compared to the ethics of humanitarian intervention and the ethics of national self-defense, the ethics of third-party military involvement in interstate conflicts remains underdeveloped in contemporary just war theory. This essay begins to fill that gap. I argue that to defend such interventions is tantamount to defending preventive military force, deterrent military force, and the resort to force in more cases than standardly thought. I then provide an account and limited defense of the deterrence argument. I show that deterrence is morally justified in relatively few cases and examine two problems with the argument: deterrence failures and the level of uncertainty under which leaders who use deterrent force operate. I conclude that we should take seriously the possibility that nonintervention, construed as the rejection of the direct use of military force, is the morally correct response to the most serious threats to international peace and security. (shrink)