Mexico's pandemic management and the absence of measures have been harshly criticized as being disproportionate. This paper examines whether the proportionality principle was properly applied to Mexico's COVID-19 response and outlines three reasons against such an endeavor, namely (i) the content of “proportionate measures” remained insufficiently well defined, (ii) there were yet fundamental rights conflicts to resolve, and (iii) the situation was moreover characterized by epistemic uncertainty.

Despite its preeminent position in the just war tradition, the concept of proportionality is not well understood by military leaders. Especially lacking is a realization that there are four distinct types of proportionality. In determining whether a particular resort to war is just, national leaders must consider the proportionality of the conflict, i.e., balance the expected gain or just redress against the total harm likely to be inflicted by the impending armed action. This proportionality consideration is (...) called jus ad bellum proportionality. The second type of proportionality discussed is a continuing re-evaluation of the proportionality, taking into account the changing situation. The last true proportionality discussed is a consideration of hostile action taking during a conflict, or jus in bello proportionality. This consideration weighs the expected military gain of a particular action against the collateral damage and injuries that are expected from the act. Finally, the fourth category addressed is ‘political proportionality’, which is not a true proportionality consideration, but is rather self-interested deliberation on the possible political and military outcomes of actions. In some instances, it could be referred to as a measured response. A better understanding of proportionality in all its forms will help military leaders to give appropriate and moral advice on the potential resort to war, as well as on the conduct of military actions in war. The recent US war with Iraq in the spring of 2003 in defiance of the wishes of the majority of the UN Security Council, and especially with the potential for high noncombatant casualties in Baghdad, makes a discussion of the proper conduct of war even more poignant. (shrink)

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. (...) However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made. (shrink)

This essay focuses on proportionality stricto sensu as a consequential test of balancing. The basic balancing rule establishes a general criterion for deciding between the marginal benefit to the public good and the marginal limit to human rights. Based on the Israeli constitutional jurisprudence, this essay supports the adoption of a principled balancing approach that translates the basic balancing rule into a series of principled balancing tests, taking into account the importance of the rights and the type of restriction. (...) This approach provides better guidance to the balancer , restricts wide discretion in balancing, and makes the act of balancing more transparent, more structured, and more foreseeable. The advantages of proportionality stricto sensu with its three levels of abstraction are several. It stresses the need to always look for a justification of a limit on human rights; it structures the mind of the balancer; it is transparent; it creates a proper dialog between the political brunches and the judiciary, and it adds to the objectivity of judicial discretion. Proportionality stricto sensu however has it critics: some claim that it attempts to balance incommensurable items; others that balancing is irrational. The answer to the critics is that it is a common base for comparison, namely the social marginal importance and that the balancing rules—basic, principled, concrete—supply a rational basis for balancing. A democracy must entrust the judiciary—the unelected independent judiciary—to be the final decision-maker—subject to constitutional amendments—about proper ends that cannot be achieved because they are not proportionality stricto sensu. (shrink)

How should liberal-democratic governments deal with emerging vaccination hesitancy when that leads to the resurgence of diseases that for decades were under control? This article argues that vaccination policies should be justified in terms of a proper weighing of the rights of children to be protected against vaccine-preventable diseases and the rights of parents to raise their children in ways that they see fit. The argument starts from the concept of the ‘best interests of the child involved’. The concept (...) is elaborated for this context into the dual regime structure in which parents have fiduciary authority over what they consider to be best for their child, and the state has fiduciary authority over a child’s basic interests. This argument leads to conditional mandatory vaccination programs that should be informed by a correct balancing of the two legal principles of proportionality and precaution. This results in contextual childhood vaccination policies of upscaling interference: a three-tiered approach of increased intrusion, from voluntary program when possible and mandatory or even compulsory programs when necessary to protect the child’s basic interests. (shrink)

With increasing inoculations and emerging coronavirus variants, governments worldwide are challenged to adopt proper liberty-restricting measures to reduce the spread of COVID-19 and minimise grave consequences for liberty and well-being caused by over a year-long pandemic. Cameron et al ’s proposal of a selective strategy addresses this pressing issue.1 Following Savulescu and Cameron, they argue for limiting the liberty of the elderly. But, instead of claiming not doing so is an instance of wrongful levelling down equality, they argue this (...) discriminative strategy is morally acceptable.2 I argue against the selective liberty-restrictive measures after proposing a revision of the five-limb proportionality test that plays a pivotal role in supporting their argument. The following is a reconstruction of Cameron et al ’s central argument: It is ethically acceptable to promote the best outcome. One way to promote the best outcome is to maximise utility at the population level without imposing unreasonable costs on the most vulnerable individuals. All else being equal, adopting selective liberty-restricting measures in the COVID-19 pandemic is the best way to maximise utility at the population level without imposing unreasonable costs on the most vulnerable individuals. If it is ethically acceptable to …. (shrink)

Proportionality, as a concept, does not contain any inherent standards, but rather refers to a proper balance between all relevant factors. It is nevertheless necessary to make analytical distinctions that help identify the premises of its application within different contexts. This is particularly true for an area like international humanitarian law in which a proper focusing of the principle of proportionality is crucial. This article suggests that the distinction between a “thin” and a “thick” approach is (...) a helpful analytical tool depending on the number and the character of factors to be taken into account in the application of the principle of proportionality. The judgment of the Supreme Court of Israel on the permissibility of “targeted killings” is used to exemplify the drawbacks and advantages of both approaches. (shrink)

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of (...) rights which does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. (shrink)

Deciding the conflict between various rights and interests, especially in medical ethics where health and lives are in question, has significant challenges, and to obtain appropriate outcomes, it is necessary to properly apply the principles of non-discrimination and proportionality. Using the example of mandatory vaccination policies, we show that this task becomes even more difficult when these principles lead us to counterintuitive and paradoxical results. Although the general purpose of these principles is to ensure that decisions and policies seek (...) the highest and broadest possible enjoyment of rights for all (ie, the least restrictive solution), they achieve the complete opposite when applied to mandatory vaccination policies. To highlight and explain these paradoxical results, we present a typology of fifteen hypothetical mandatory vaccination policies containing various degrees of restriction and apply well-established non-discrimination and proportionality tests from constitutional law to each. We argue that mandatory vaccination policies exhibit two characteristics, namely the non-linear relationship between their general purposes and specific goals and the involvement of life and health, suggesting that more restrictive policies should prevail even though less restrictive policies might fail these tests. Using clearly structured and rigorous methodology from constitutional law, the proposed approach delivers a fresh view on the core ethical principles of non-discrimination and proportionality and a potentially useful tool in helping resolve also other challenges encountered in medical ethics beyond mandatory vaccination policies. (shrink)

The Code of Canon Law defines the laity simply as the non-ordained. While helpfully direct and often useful, this definition gives no hint as to why non-ordained religious may not always count among the laity, nor of how the function and mission of the laity could be defined in positive terms. I propose to resolve these difficulties by understanding the Biblical foundations of “clerical” and “lay” (κλῆρος and λαός) as essentially related by analogy of proper proportionality, with clerics (...) as the allotted witnesses, and the laity as the assembly from whom the clerics are allotted and to whom the clerics witness. This treatment helps to resolve not only the above problems with the status of religious and the positive definition of the laity, but also some common ecumenical concerns and several points of New Testament exegesis. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:714 BOOK REVIEWS learning; the Jesuits lean to the voluntarist. Possessed of a unitary academic model, he is really arguing for Aristotle's analogy of attribution. Apparently, no one of his 200 plus Jesuit contacts told him that Nastri prefer St. Thomas and his analogy of proper proportionality. The historian Daniel Boorstin spent 25 yeari!l writing his trilogy on The Americans. What emerges from this analysis? Boorstin points (...) out that Americans like ambiguity, that they function best amid flux; ambivalence becomes their proper medium. For this reason, I have accepted Nathaniel Hawthorne as our most central writer. He situates American questions within a landscape of chiaroscuro. The Jesuit experience in the United States belongs essentially to the same landscape. But today, as formerly, it remains a landscape of questions. McDonough, on the other hand, has too many certitudes, too many answers, too much high definition-what Henry Adams regards as "mere facts." Instead of illuminating the landscape from within, his study inevitably recedes into the larger ambiguity reserved for what Wallace Stevens has called, " Prologues to what is possible." Saint Paul University Ottawa, Ontario JOHN P. McINTYRE, S.J. The Dilemma of Freedom and Foreknowledge. By LINDA TRINKAUS ZAGZEBSKI. New York: Oxford University Press, 1991. viii + 215 pp. $29.95. As a Christian and a philosopher, Linda Trinkaus Zagzebski wants to understand why it is reasonable to affirm that we remain free despite God's infallible knowledge of our future acts. Moreover, she is not content simply to demonstrate that this affirmation involves no logical con· tradiction, for "reasonable people expect more" (p. 33) than a merely negative result. Hence the author sets herself the more ambitious task of working toward a positive solution that would explain why the compatibility of divine foreknowledge and human freedom is plausible and not a bare logical possibility. The hook sorts out recent opinions on the subject and sketches an original position that she hopes will advance the discussion. Zagzehski begins by constructing the most formidable version of the dilemma. Assuming that God is infallible and essentially omniscient, that the past has a kind of necessity that the future lacks ("accidental necessity"), and that this necessity can he transferred (in some sense) from the antecedent to the consequent of a conditional proposition, the dilemma may he stated as follows: BOOK REVIEWS (1) Necessarily, God believes at time t 1 that I will do S at t 3 if and only if I do S at t 3. (2) It is accidentally necessary at t 2 that God believes at t 1 that I will do S at t 3. (3) If (1) and (2) are true, then it is accidentally necessary at t 2 that I do Sat t 3. (4) It follows that it is accidentally necessary at t 2 that I do S at t 3. (5) But if it is accidentally necessary at t 2 that I do S at t 3, I do not do S at t 3 freely. (6) Therefore, I do not do S at t 3 freely. 715 Much of the first chapter is devoted to establishing that this form of the dilemma is more resistant to solution than any other, especially the so-called problem of future truth. Zagzebski goes on to evaluate three broad approaches to solving the dilemma. In Chapter 2 she takes up the " timelessness " solution. Its proponents, among whom the author numbers Boethius, Thomas Aquinas, Eleonore Stump, and Norman Kretzmann, negate premise (2) of the foreknowledge dilemma by contending that God is not in time. Zagzebski considers this an acceptable negative solution to the dilemma and sees in it the potential to ground a more comprehensive, positive solution. Nonetheless, she refrains from subscribing wholeheartedly to the timelessness solution because it confronts one with a dilemma at least as perplexing as the one it solves. She puts the problem this way: like the past, eternity is fixed, for it is constituted by a state of affairs about which we cannot do anything; therefore my future acts are determined no less by God's timeless knowledge than by God's foreknowing them in a strictly temporal sense. In Chapter 3, Zagzebski considers... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE ANALOGIES OF BEING IN ST. THOMAS AQUINAS RICHARD LEE New School for Social Research New York, New York IN HIS Commentary on the Sentences of Peter Lombard, Aquinas offers three modes of analogy.1 The three modes offered there are referred to, though not by the names given them, throughout his works. It remains a curious fact, however, that Aquinas varies his opinion as to whether analogy of attribution (...) or analogy of proportionality (sometimes referred to as analogy of proper proportionality as attribution is referred to in the literature as analogy of proportion) is the proper mode of analogical predication. In fact, as we shall see, Aquinas himself imports elements of the analogy of attribution into the analogy of proportionality. What needs to be investigated, then, is what characterizes these two modes of analogy; what makes them both analogy; why do they differ. Before understanding the specific nature of each form of analogy, however, one should understand why Aquinas appealed to analogy in the first place. Finally, one should attempt to grasp what the implications of each form of analogy are for Aquinas's metaphysical system and why he seems to favor the analogy of attribution over that of proportionality at crucial points in his thought. Why analogy? In general, one can say that Aquinas uses the concept of analogy (and that of proportionality) to solve two problems. On the one hand, the concept of analogy is used to argue that God does, 1 In I sent., 19. 5. 2, ad 1. 471 472 RICHARD LEE in fact, have knowledge of his creatures. The issue here is that the intellect knows in proportion to the thing known. However, God is infinite and if he knows anything finite he would know that thing in proportion to the created, finite thing. Since there is no proportion between finite and infinite, God cannot have any knowledge of his creatures.2 The element of knowledge, however, is not merely a preface to the discussion of the types of analogy. Aquinas argues that we can name a thing insofar as it is known.3 Since we have no concept of God (in his essence), we cannot name God, at least in the same way we name other things. On the other hand, Aquinas uses analogy to fill a metaphysical gap in his system. For he agrees with Pseudo-Dionysius and Maimonides that we cannot know God in his essence. Therefore, any names that we apply to God are not names which tell us anything about God. Aquinas is well aware that the God of revelation is not a God about whom one ought to speak. To say anything at all about God is already to say too much; it is already doomed to failure because of God one should not speak. However, this situation leaves Aquinas in a peculiar position. For he takes seriously the Aristotelian dictum that a thing is known only when its principles are known.4 If God is the principle, something must be known of him if anything is to be known at all. There must be some way to speak of God. Aquinas sees in analogy a middle ground between these two positions. For what he seeks is a mode of predication that lies between univocity and equivocity. In other words, he seeks a mode of predication that predicates the same thing in a different way of two (or more) things. In univocal predication the same term is applied according to the same ratio.5 Thus, the community 2 This is the issue, for example, in De Veritate, q. 8, a. 1, ad 6; De Veritate, q. 2, a.3, ad 4. 3 Cf. Summa Theologiae I, 13, 1, c. 4 For example, cf. Physics I, 1. 5 One is tempted to render ratio as " definition." However, it is not clear that definition is enough. Clearly, in univocal predication the definition must be the same (e.g., predicating animal of man and ox). But is it enough that only the definition is the same? Is there not some metaphysical element lack- THE ANALOGIF'.$ OF BEING 473 that applies to univocal predication is one of identity. The concept of animal... (shrink)

First principles and the challenge of Parmenidean monism -- St. Thomas on analogia entis in the Scriptum super sententiis and in De veritate -- Consideration of objections to the view that the analogia entis is the analogy of proper proportionality -- The analogy of being and the transcendence and analogical intelligibility of the act of faith.

In this paper I argue that Aquinas’s doctrine of analogy must be understood against the background of his overall philosophy of being. I suggest that Thomas’s oscillation between an analogy of attribution and proper proportionality should be understood as an attempt to address analogy from two different, albeit complementary, metaphysical perspectives. If created being is, as Thomas maintains, a composition of essence and existential act, then it would seem that the analogy of being would bear out the implications (...) of the composite character of being. Thus, if Thomas’s analogy sometimes focuses on formal causality and at other times upon the communication of act via efficient causality, it is not because he adopts a new doctrine of being that supplants his earlier teaching but because of the twofold character of created being. (shrink)

This article identifies and formalizes the logical features of analogous terms that justify their use in deduction. After a survey of doctrines in Aristotle, Aquinas, and Cajetan, the criteria of “analogy of proper proportionality” are symbolized in first-order predicate logic. A common genus justifies use of a common term, but does not provide the inferential link required for deduction. Rather, the respective differentiae foster this link through their identical proportion. A natural-language argument by analogy is formalized so as (...) to exhibit these criteria, thereby showing the validity of analogical deduction. (shrink)

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...) mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration. (shrink)

In recent years, a number of authors – such as Kershnar and Kelly, Steinhoff, and Scanlon – have criticized the doctrine of double effect (DDE) as incoherent, lacking an underlying rationale, or leading to counterintuitive conclusions. These critiques, however, rest on a failure to understand the DDE’s broader theoretical context and presuppositions. This paper aims to clarify and advance the debate regarding the DDE by, first, outlining a contemporary version of the broader normative theory (i.e. the Aristotelian-Thomistic natural law tradition) (...) within which the DDE finds its proper context, and explaining the rationale for the DDE within this context; second, clarifying the DDE’s proportionality condition to avoid common misinterpretations; and, third, showing how the DDE, when properly formulated and understood within the appropriate theoretical context, can withstand the recent criticisms that have been raised against it. (shrink)

I shall argue that in some wars both sides are (as a collective) justified, that is, they can both satisfy valid jus ad bellum requirements. Moreover, in some wars – but not in all – the individual soldiers on the unjustified side (that is, on the side without jus ad bellum) may nevertheless kill soldiers (and also civilians as a side-effect) on the justified side, even if the enemy soldiers always abide by jus in bello constraints. Traditional just war theory (...) and self-proclaimed “revisionist” just war theory think otherwise since the former focuses on the law enforcement or public authority justification for inflicting harm and the latter on the self-defense justification. These are both intrinsically asymmetrical justifications: there is no justified self-defense (properly understood) against justified self-defense, nor is there justified law-enforcement against justified law-enforcement. However, there can, as I will show, be justified self-defense against force that is justified by a necessity justification, and there can be force justified by a necessity justification being used against force that is also justified by a necessity justification. The necessity justification is not intrinsically asymmetrical, and it is an indispensable justification in the context of war. Moreover, with regard to some forms of inflicting harm on others one may give special weight to one’s own interests and the interests of those to whom one has special responsibilities when assessing the proportionality of those acts. That is, the proportionality calculation may be agent-relative. This is in particular so in the case of foreseeably preventing innocent and non-threatening people from being saved (for instance, by shooting down a tactical bomber who would have saved them by destroying an ammunitions factory) but less so in the case of the intentional or foreseeable direct harming of innocent and non-threatening people (dropping bombs on people standing near an ammunitions factory). In the light of these considerations, I will then answer the question as to when soldiers may justifiably participate in war (and when not). (shrink)

I argue that the criterion of just cause is not independent of proportionality and other valid jus ad bellum criteria. One cannot know whether there is a just cause without knowing whether the other (valid) criteria (apart from ‘right intention’) are satisfied. The advantage of this account is that it is applicable to all wars, even to wars where nobody will be killed or where the enemy has not committed a rights violation but can be justifiably warred against anyway. (...) This account also avoids the inefficiency of having proportionality considerations come up at two different points: in a separate criterion of just cause and in the criterion of proportionality proper. ‘Right intention’, the subjective element of the justification of a war, on the other hand, is not to be subsumed under the criterion of just cause: there can be a just cause without anybody knowing it. Conversely, however, the subjective element requires that those responsible for waging the war do know that the justifying objective conditions are fulfilled. This is in one sense more demanding than traditional just war theory; in another sense, however, it is less demanding: nobody needs to intend to fight for a ‘just aim’. (shrink)

Strictly proper scoring rules have been studied widely in statistical decision theory and recently in experimental economics because of their ability to encourage assessors to honestly provide their true subjective probabilities. In this article, we study the spherical scoring rule by analytically examining some of its properties and providing some new geometric interpretations for this rule. Moreover, we state a theorem which provides an axiomatic characterization for the spherical scoring rule. The objective of this analysis is to provide a (...) better understanding of one of the most commonly available scoring rules, which could aid decision makers in the selection of an appropriate tool for evaluating and assessing probabilistic forecasts. (shrink)

The term “analogy” stands for a variety of methodological practices all related in one way or another to the idea of proportionality. We claim that in his first substantial contribution to electromagnetism James Clerk Maxwell developed a methodology of analogy which was completely new at the time or, to borrow John North’s expression, Maxwell’s methodology was a “newly contrived analogue”. In his initial response to Michael Faraday’s experimental researches in electromagnetism, Maxwell did not seek an analogy with some physical (...) system in a domain different from electromagnetism as advocated by William Thomson; rather, he constructed an entirely artificial one to suit his needs. Following North, we claim that the modification which Maxwell introduced to the methodology of analogy has not been properly appreciated. In view of our examination of the evidence, we argue that Maxwell gave a new meaning to analogy; in fact, it comes close to modeling in current usage. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Aquinas on Faith, Reason, and Charity by Roberto Di CeglieGregory StaceyDI CEGLIE, Roberto. Aquinas on Faith, Reason, and Charity. New York: Routledge, 2022. x + 196 pp. Cloth, $160.00Suppose one wishes to argue that Christian faith (that is, supernatural belief in propositions insofar as they are divinely revealed) is compatible with the proper exercise of reason (that is, forming beliefs through natural cognitive processes). Two strategies suggest (...) themselves. First, one could argue that faith is itself a natural cognitive process or else meets criteria by which natural beliefs are considered rational or appropriate. Alternatively, one might contend that faith can meet its own, independent criteria for rationality or propriety. Thomas Aquinas, whose natural theology and discussion of public evidence that God has revealed himself in Christ are famously robust, may appear to be an exponent of the former strategy. Yet in this volume, Roberto Di Ceglie advances a reading of Thomas that illustrates how faith can support rational enquiry, while remaining independent of it. On this view, faith is "caused mainly by God" and is therefore "at least partly unresponsive to rational criteria."Part 1 begins Di Ceglie's case obliquely, by criticizing both efforts to argue (following Gilson and Maritain) that philosophy can be influenced by Christian faith and recent attempts to explain Aquinas's account of faith and reason. Reviewing the work of commentators including Anthony Kenny, Richard Swinburne, and Eleonore Stump, the author objects that many philosophers hold that for Thomas, faith is primarily a form of propositional belief that should be evaluated for propriety in the same way as natural beliefs. He alleges that this understanding of faith is inherited from Locke, who endorsed "methodological naturalism": the view that appropriate "religious belief can only be taken as the outcome, if any, of a rational exploration of our experience." While this material usefully outlines views which Di Ceglie means to oppose, readers unfamiliar with scholarship on Aquinas and Locke may find these initial chapters difficult to follow.The argument becomes easier to follow in part 2, which provides Di Ceglie's own interpretation of Aquinas. The key third chapter explores Aquinas's definition of faith as "an act of the intellect assenting to the Divine Truth at the command of the will moved by the grace of God" (ST II-II, q. 2, a. 9). It demonstrates that while for Aquinas faith involves firm propositional belief, its certitude derives not from believers' assessment of signs that God has revealed the articles of faith but from their free choice—itself a gift of grace—to embrace those articles. More precisely, in cases of "formed" faith, this choice is motivated by supernatural love for God (charity). Charity's role in Aquinas's religious epistemology is [End Page 547] highlighted in two subsequent chapters. Inter alia, Di Ceglie charges that faith is meritorious principally due to its grounds in charity rather than because the articles of faith are not evidently true. He further claims that Aquinas understood "unformed" faith as merely "faith commonly so called"—that is, natural belief in propositions because one judges that they are testified to by a competent authority. Accordingly, unformed faith lacks perfect confidence because it is merely based on probabilistic evidence that God has revealed the articles of faith, rather than on a strong, loving will to trust God. More generally, the certitude of one's faith is proportionate to the perfection of one's charity.Having developed a reading of Aquinas's religious epistemology that stresses the distinction between faith and reason, in part 3 Di Ceglie considers their positive relationship. First, he attempts to reconcile the apparently opposing views that Aquinas's philosophy is purely an exercise of natural reason, and that his philosophical work was influenced by his Christian faith. Broadly, the charity that grounds formed faith also inspires and enhances rational investigation, although philosophical arguments cannot presume faith's truth. Believers with formed faith, however, should reject positions that contradict faith and seek to revise their philosophical reasoning accordingly. The final chapter argues that Christian faith affords a better position from which to engage in rational reflection than atheism or agnosticism. Among other advantages, faith... (shrink)

The Brain Death Reconsidered – Is It a Tenable Concept? Since 1968 it has been recognized in the medical practice that irreversible coma connected with apnea can serve as a criterion of human death. This approach was first introduced in the so called Harvard Protocol. As a result of the work of this commission, the brain-based criteria of human death were quickly legally introduced in America and in most countries in the world. The only symptom on which death can be (...) pronounced is, according to this new definition, the absence of spontaneous brain function. However, the acceptance of the new definition of death did not eliminate the old one completely. In many states both old and new definitions of death are legally valid. Practically, in these countries the alternative definition of death functions alongside the old one and diagnosis of death can be based both on the cardiac/respiratory and brain symptoms. One of the few exceptions proved to be Japan. The law in this country does not provide a uniform answer to the question of what human death is. Instead, it allows people to choose between traditional death and brain death. The law states that if a person wants to be an organ donor after brain death has occurred, he or she must record that intention on a donor card or label beforehand. Those who object to brain death and transplantation do not need donor cards. They are considered to be alive until the heart stops beating. In this way the Japanese law respects the opinion of 20-40% of the society who do not believe in the brain death. The opinion of the same percentage of people in Western societies who oppose BD is ignored by their legal systems. Initially the concept of BD did not cause a lot of controversy but this situation changed in the nineties of the last century. Since then many authors have criticized the validity of the brain-based criteria of death. They maintain that it is impossible to declare the absence of all the functions of the whole brain on the basis of the clinical tests supposed to detect it. There may be present some level of consciousness in brain death (BD) patients and therefore, they may feel pain. It is significant that 27% of the members of the teams which perform the excision of the heart for transplantation think that they are killing a living person and that in many countries during this operation a normal general anesthesia is required because of the vivid reaction of the body of the patient. The opponents of the brain death theory stress that the accurate examination of the so-called brain dead persons shows the persistence of the functions of significant parts of their brains. There are EEG waves recorded in 20-40% of BD patients. Event related potentials (ERP) show the reaction to verbal and non-verbal stimuli and the hormone production by the brain tissue can be detected in many BD people. The proper treatment could not only significantly prolong lives of the BD patients, but around 60% of possible donors with the lowest result of 3 in Glasgow Coma Scale could be restored to normal life if their brain edema is properly treated. This treatment should be based on the therapeutic hypothermia connected with the application of the thyroid hormones, whose level is usually too low in the patients with the brain injury. There is a growing lack of consensus regarding the issue of brain death, especially among physicians. Some regard brain death as a biological one, some as the death of the person but not of the human body, and the rest, as a definition accepted by the society, which doesn’t require other legitimacy than the freely chosen criteria. The brain death concept is also criticized from the philosophical point of view. The strength of the brain death theory was based on the premise that the brain is the integrating center of the body. According to this argument, the death of the brain means that the organism ceases to exist for it is no longer a functioning whole. To this argument the opponents of the brain death concept say that this question is not a question a priori but an empirical one and that the empirical data validate the opposite opinion, which says that the bodies of brain dead patients are alive. Some widely known cases show that even the real death of the entire brain means the death of the body and, therefore, may not signify the death of a human person. The integration of the body is the function of the organism as a whole and not of a single organ, even if this organ is the brain. This point of view can be confirmed by the opinion of St. Thomas Aquinas who says that the soul is primarily and per se connected with the body as a whole as the proportionate perfectible and only secondarily with the parts of the body, according to their ordination to the whole. So, the death of any single organ does not preclude the union of the soul with the rest of the body as a living whole. Moreover, the terms such as “consciousness” and “person” should not be identified. The term such as “human living nonpersons”, proposed by some bioethicists and referring to the people without consciousness has not been accepted in the official documents concerning BD. Bodies of the BD people are alive, therefore, it is not right to use the term “brain death” to describe the state of these patients, but rather the term “brain failure” should be used. As the result, according to some authors, the dead donor rule should be abolished. The Catholic Church stresses the sacredness of the human life from the beginning to the end. Therefore She requires that there be no doubts that the donor in BD is really dead. Because of the lack of consensus among physicians, philosophers and theologians, the popes John Paul II and Benedict XVI decided to continue the scientific research and discussion concerning BD between the representatives of various disciplines. Keywords: brain death, brain edema, global ischemic penumbra, therapeutic hypothermia, consciousness, person, substantial form. (shrink)

Holtby, Allen and Fairchild are both recent and revolutionary decisions that address an important aspect of the indeterminate causation problem that frequently arises in tort litigation. In Holtby and Allen, the Court of Appeal departed from the traditional binary approach, under which a tort claimant either recovers compensation for his or her entire injury or is altogether denied recovery—depending on whether his or her case against the defendant is more probable than not. Holtby and Allen substituted this approach by the (...) proportionate recovery principle, under which the defendant compensates the claimant for a fraction of his or her injury that represents the defendant's statistical share in that injury. This article analyses this development within the particular domain of indeterminate causation, over which the proportionate recovery principle has been licensed to exercise control. The article claims that this development would constitute an improvement of the law from the perspectives of both optimal deterrence and corrective justice, if the courts properly formulate its scope. First, the proportionate recovery principle needs to be explicitly confined to cases that deal with recurrent wrongs. Second, determination of the defendant's share in the claimant's injury ought to be grounded on the probability of causation, rather than the risk of inflicting that injury. Third, judges must not apply unarticulated intuitions in determining the magnitude of the relevant risk or probability: their decisions in that area would be better informed by the statistical principle of ‘insufficient reason’, also known as the ‘indifference principle’. Fourth, courts are yet to relieve the doctrinal tension between the proportionate recovery principle, as recognized in Holtby and Allen, and the previous rejection of that principle by the House of Lords. Subsequently, the article analyses the House of Lords' decision in Fairchild—yet another instance of indeterminate causation in which proportionate recovery is preferable to the ‘all or nothing’ approach. In this case, the House of Lords allowed the claimants full recovery. This holding was grounded in the Law Lords' innovative approach to indeterminate causation, and the article unfolds the problematics of this approach. Finally, the article offers an adoption of yet another legal mechanism—the ‘evidential damage doctrine’—that replaces liability under uncertainty with liability for uncertainty. (shrink)

In 1983 the US Catholic bishops noted that "insufficient analytical attention has been given to the moral issues of revolutionary warfare." Decades later systematic analysis of armed revolutionary resistance remains a lacuna within theological scholarship on war and peacemaking. While nonviolence is always preferable, traditional just war criteria can and should be revised to provide guidelines for ethical, armed, revolutionary resistance. Examining the just war criteria of legitimate authority, last resort, and proportionality not from the perspective of society's dominant (...) classes but from that of the oppressed begins to yield a theory of just revolution. When properly met, revised understandings of the just war criteria allow for limited armed resistance as a moral response to severe repression. (shrink)

Taking the case of H. pylori and ulcer, Lynch et al., demonstrate how framing Koch’s postulate by an interventionist account clarifies the latter’s explanatory strength in proportionality with the weaknesses in specificity and stability due to the influence of background conditions. They suggest this approach as an efficient way to bypass the enigma of background conditions and microbial activity in the microbiome’s causal relations. However, it is the background conditions and the microbial interactions in the stomach that determine whether (...) the presence of H. pylori results in an ulcer. I agree with their analysis of the problems and challenges with the microbiome causal explanation but argue that their suggested framework is insufficient without a proper understanding and inclusion of the background conditions and microbial interactions. The reductionist approach fits well within the model of causal explanation that centers on one causal entity. However, such a model is weak in specificity and is too broad because it does not address the factors of microbial activity and background conditions. I argue that for a better causal explanation with explanatory strength in specificity, it is essential to include the background conditions and microbial interactions. Furthermore, I argue that this inclusion changes the framework of the causal relations from looking for the causal entity to looking at the causal process. (shrink)

Cyber warfare is challenging traditional paradigms about what constitutes a just war. It is an emerging phenomenon that needs to be addressed separately in order to create reasonable regulations on its use and proper responses to the same. Some of these challenges refer to first what might constitute an act of war as opposed to a case of criminal sabotage. Other difficulties concern issues of sovereignty, the right to remain neutral, and proportionate responses to attack. Several recent examples of (...) cyber-attack are brought forth and analyzed within this framework. The paper proposes that the traditional just war paradigm needs to be expanded to account for the anomalies created by this new mechanism of warfare. This essay will raise some critical questions about this changing paradigm with intent to suggest alterations to the way we think about war that can include cyber warfare as part of the traditional just war paradigm. (shrink)

Invasive measures, as special investigative measures are defined, are ante delictum measures. They are applied only in situations in which the evidence cannot be obtained by conventional methods, and are needed for the smooth conduct of criminal proceedings. The financial means for the application of these invasive measures for the needs of defence and security are allocated with a budget by the legislative authority. The main hypothesis of this paper states that: supervision over the application and financing of the implementation (...) of special investigative measures has a positive impact / or is in direct correlation with the effective construction/development and functioning of the security-defence system, especially from the aspect of the principles of: good governance, transparency, accountability, proportionality, and efficient application of financial resources. Starting from the indicated hypothesis, the research in the paper is based on two variables: independent variable, i.e., the supervision over the application and financing of the implementation of the special investigative measures, and a dependent variable, i.e., the effective development and proper and efficient functioning of the security-defence system. From a methodological point of view, the paper uses a combined approach of qualitative and quantitative analysis, through research, measurement, and comparison of: adopted international standards regarding the application of special investigative measures, the regulations in the Macedonian normative framework, the content of the instructions and the implementation manuals of the special investigative measures by the relevant institutions in the Macedonian society. (shrink)

Failed expectations about “bringing in the Kingdom” may lie at the root of the decline in the missionary force of mainline denominations. Is a missiological motivation based on “evangelising the world to bring back the King” giving rise to similar unrealistic expectations? Optimistic statistics on aspects of church growth are vulnerable to question. Reports of the numbers of missionaries forget the aspect of proportionality to size of population, reports of church growth include the effect of babies born to Christians (...) of all denominational groups, and increases in the numbers of missionaries include short-termers. The growth of the new category of Great Commission Christians and the reduction in number of unreached people groups are based on faulty descriptive bases. If the world remains unevangelised by 2001, these attempts to motivate Christians to evangelism on the basis of current optimistic statistical improvements will undermine a proper basis for motivating people for evangelism which is based on faith and not on sight. (shrink)

Nutrition and hydration—including artificially delivered, or assisted, nutrition and hydration (ANH)—are typically considered ordinary or proportionate care in the Roman Catholic moral tradition. They are thus morally obligatory, except when the benefit to the patient does not justify the burden their administration places on the patient or when they no longer prolong life (e.g., in end-stage disease when death is imminent). A review of Church documents and the medical literature provides convincing evidence that there are cases in which ANH provides (...) little hope of benefit and may impose an excessive burden on the patient. This paper closely examines advanced dementia of the Alzheimer’s (DAT) type and shows how ANH can be properly considered extraordinary care and hence is not obligatory in patients with advanced DAT. National Catholic Bioethics Quarterly 8.2 (Summer 2008): 291–305. (shrink)

The past few decades have seen an explosion of research on causal reasoning in philosophy, computer science, and statistics, as well as descriptive work in psychology. In Causation with a Human Face, James Woodward integrates these lines of research and argues for an understanding of how each can inform the other: normative ideas can suggest interesting experiments, while descriptive results can suggest important normative concepts. Woodward's overall framework builds on the interventionist treatment of causation that he developed in Making Things (...) Happen. Normative ideas discussed include proposals about the role of invariant or stable relationships in successful causal reasoning and the notion of proportionality. He argues that these normative ideas are reflected in the causal judgments that people actually make as a descriptive matter. Woodward also discusses the common philosophical practice-particularly salient in philosophical accounts of causation--of appealing to intuitions or judgments about cases in support of philosophical theses. He explores how, properly understood, such appeals are not different in principle from appeals to results from empirical research, and demonstrates how they may serve as a useful source of information about causal cognition. (shrink)

David Miller argues that the proper principle to govern distribution in the economy is a principle of desert and that markets (at their best) distribute to the participating agents rewards that are proportional to their respective contributions. This is explained by appeal to the notion of marginal productivity, and by the theory that perfect competition results in a distribution according to marginal contribution. Marginal product in this sense is taken to be a measure of the producer's contribution to the (...) consumer's well-being, and so a proportionate reward is something he can be said to deserve. I discuss the relation between desert and justice and question the premise that desert is appropriate in the economic sphere. With respect to Miller's argument I claim, first, that there are several substantial and prevalent factors that cast serious doubt on the contention that the market distributes and rewards according to marginal contribution to any significant extent. Second, that marginal contribution is not a measure of contribution to well being and, therefore, it is not a morally relevant desert-basis. (shrink)

This article examines four medieval views on the subject of theology. Thomas Aquinas, Giles of Rome, John Duns Scotus, and Peter Auriol were all confronted with an idea based on Aristotle’s theory of knowledge according to which any scientific discipline is unified by its proper subject. In defining this subject of theology, however, the theologians had to confront one thorny problem: God, whom they considered to be the subject of theology, cannot be grasped by any concept accessible to the (...) human mind. In their respective discussions, two distinct strategies to solving this puzzle emerged. Aquinas and Giles, on the one hand, argued for a concept proportionate to human cognition. This concept or ratio functioned as a placeholder for the quidditative concept of God. Scotus and Auriol, on the other hand, elaborated on a concept which they believed grasped God’s quiddity, albeit in a somewhat approximative way. Their theories, therefore, figure as attempts to find a concept, that is, the concept of being, that in itself was as boundless as to grasp God’s immensity. (shrink)

Nutrition and hydration—including artificially delivered, or assisted, nutrition and hydration (ANH)—are typically considered ordinary or proportionate care in the Roman Catholic moral tradition. They are thus morally obligatory, except when the benefit to the patient does not justify the burden their administration places on the patient or when they no longer prolong life (e.g., in end-stage disease when death is imminent). A review of Church documents and the medical literature provides convincing evidence that there are cases in which ANH provides (...) little hope of benefit and may impose an excessive burden on the patient. This paper closely examines advanced dementia of the Alzheimer’s (DAT) type and shows how ANH can be properly considered extraordinary care and hence is not obligatory in patients with advanced DAT. National Catholic Bioethics Quarterly 8.2 (Summer 2008): 291–305. (shrink)

The emergence of so-called ‘gig work’, particularly that sold through digital platforms accessed through smartphone apps, has led to disputes about the proper classification of workers: Should platform workers be classified as independent contractors (as platforms typically insist), or as employees of the platforms through which they sell labor (as workers often claim)? Such disputes have urgency due to the way in which employee status is necessary to access certain benefits such as a minimum wage, sick pay, and so (...) on. In addition, classification disputes have philosophical significance because their resolution requires some foundational account of why the law should make a distinction between employed and freelance workers in the first place. This paper aims to fill this foundational gap. Central to it is the idea that employment involves a worker ceding certain freedoms in return for a degree of security, at least with respect to income. Insofar as the misclassification objection has force against digital platforms, it is when a platform is attempting to have it both ways: Workers are giving up freedom but not being granted a proportionate increase in security. As I shall explain, this approach offers some flexibility as to how actual disputes might be resolved – justice may be indifferent between whether platforms offer greater security or permit workers greater freedom, provided they do at least one of these things. (shrink)

In the name of safeguarding public interests and ethical principles, China’s National Health Commission bans unmarried women from using assisted reproductive technology (ART), including egg freezing. Supported by local governments, the ban has restricted single women’s reproductive rights nationwide. Although some courts bypassed the ban to allow widowed single women to use ART, they have not adopted a position in favour of single women’s reproductive autonomy, but quite the contrary. Faced with calls to relax the ban and allow single women (...) to freeze eggs electively, the National Health Commission refused to amend their policy, partly to protect women’s well-being paternalistically and partly to implement the central government’s policies to boost the birthrate and maintain traditional family structures. While the government’s concerns about elective egg freezing are not entirely unfounded, they have failed to demonstrate that banning single women’s egg freezing is a suitable, necessary and proportionate means to safeguard societal interests and ethical principles. The authority’s assumptions that women cannot make rational decisions for their health even with adequate informed consent procedures, that banning egg freezing by single women promotes a culture of having children ‘at a proper age’, and that egg freezing by single women offends China’s public moralities have not been substantiated. (shrink)

THE PAPER ANALYZES THE NATURE, FORMS AND PURPOSE OF JUST ETHICAL PUNISHMENT, LAYING DOWN THE NECESSARY CONDITIONS FOR IT. THEY INCLUDE: (1) SELF-ADMINISTRATION OF PUNISHMENT; (2) PROPORTIONALITY OF PUNISHMENT (DEPRIVATION OF VALUES, MENTAL PAIN, ETC.) TO THE VICTIM’S DEPRIVATION OF VALUES AND HIS PAIN; (3) NON-INFLICTION OF PHYSICAL PAIN OR MENTAL CRUELTY; AND (4) THE PUNISHER’S MORAL ENTITLEMENT (AND PROPER EXERCISE OF THE RIGHT) TO PUNISH THE OFFENDER. THE CONCLUDING SECTION CONSIDERS WITTGENSTEIN’S VIEW THAT ETHICAL PUNISHMENT "MUST RESIDE (...) IN THE (WRONG) ACTION ITSELF," AND THE CHRISTIAN VIEW OF ETHICAL PUNISHMENT, RELATING THEM TO THE EARLIER DISCUSSION. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:THE MEANING OF VIRTUE IN THE CHRISTIAN MORAL LIFE: ITS SIGNIFICANCE FOR HUMAN LIFE ISSUES RoMANUS CESSARIO, O.P. Dominican House of Stuaies Washington, D.a. RCENTLY, AN International Congress of moral theology convened in Rome brought together some three hundred academicians. They participated in an open forum devoted to current questions in moral theology and bioethics. Held at the Lateran University, the Congress, "Humanae vita,e: 20 Anni Dopo," was divided (...) into two parts. Although a majority of the presentations concerned the relevance of the Church's teaching on artificial contraception, the membership did devote the second part of the Congress to a sustained discussion of some new issues raised by Donum vitae (1987), the recent instruction of the Congregation for the Doctrine of the Faith on " Respect for Human Life in its Origin and on the Dignity of Procreation." To be sure, both documents emphasize the Church's constant teaching concerning the providence of God in human life and the dignity of the human person. Nevertheless, procedures such as GIFT (gamete intra.-fallopian transfer), LTOT (low tubal ovum transfer ), TOT (tubal ovum transfer) provide the moral theologian with new challenges to interpret the Church's position which insists on identifying the procrea.tive and unitive aspects of Christian marriage. The following article discusses the papal documents from the perspective of a realist moral theology. First of all, I would like to recall a principle which Paul VI, however obliquely, enunciated in the course of Humanae Vitae, for I consider the principle an axiomatic one in the present discussion. At the beginning of section 8 entitled "Pastoral 178 174 ROMANUS CESSARIO, O.P. Directives," we find a statement of theological purpose which should guide all Catholic moral practice. Hence, I would like to quote this text as a way of introducing the meaning of virtue in the Christian moral life. The Church, in fact, cannot have a different conduct toward men [and women] than that of the Redeemer: she knows their weaknesses, has compassion on the crowd, receives sinners; but she cannot renounce the teaching of the law which is, in reality, that law proper to a human Zife restored to its original truth and conducted by the Spirit of God.1 I am especially struck by the phrase " that law proper to a human life restored to its original truth," for I believe it actually describes the kind of life which develops in those who practice the virtues. Yet, before speaking about the implications of a virtue-centered morality for the difficult issues of bioethics, I would like to remark briefly on the way certain contemporary theologians misinterpret what Paul VI calls the " law proper to a human life restored to its original truth." In order to do so I have divided this paper into three parts. Thus, the first section of the paper examines several themes in contemporary moral methodology. The second section provides a general statement about the relationship between moral theology and the sa,cra domrina. Finally, the third section briefly considers why the life of virtue remains the only legitimate means for fulfilling the " law proper to a human life restored to its original truth." First, then, to contemporary themes. I Proportionate Reason and the Ethics of Personal Responsibility In an earlier draft of this paper, I titled this section "St. Ignatius, St. Alphonsus, and St. Elsewhere." I had considered actually outlining the moral methodologies of two Roman theo1 Paul VI, Humanae vitae, n. 20. VIRTUE THEORY AND HUMAN LIFE ISSUES 175 logians, the German Jesuit Josef Fuchs 2 and the Redemptorist Bernard Haring.3 These authors have influenced most leading revisionist moral theologians in America, especially Charles Curran.4 One could argue, therefore, that they figure among the principals in the current debate over bioethical norms. Upon reflection, however, it seemed rpreferable simply to signal two or three basic themes which appear in most revisionist moral theology, especially as it has been developed in the United States. In brief, these themes focus principally on (1) the freedom of the individual, and (2) the consequences or end results of an action. Revisionist moral theologians receive their name from the fact that their announced purpose... (shrink)

This article explores the arguments for and against victims’ mitigating opinions on sentence. It describes a recent South African appeal case, compares it with a similar New Zealand appeal court judgment, and then investigates the legal position in England and Wales. It appears that, as a general rule, victims’ recommendations as to penalty must be avoided. However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has developed exceptions in this regard when certain categories of victims (...) request a more lenient sentence. Several cases from England and Wales reveal that, through considering the harms and needs of victims and ameliorating the sentences accordingly, a restorative justice approach is blended with a just deserts requirement for the protection of lower limits in sentencing. This ensures that the principles of proportionality, certainty and consistency are still adhered to. It is concluded that, had the South African court properly considered these comparative legal developments, it would, at the very least, have created a better precedent by providing guidelines to inform the complex, but important, process of considering victims mitigating opinions in the sentencing process. (shrink)

This roundtable discussion is based on an online symposium – The Promise of Photography: Scale, Measure and Proportion in a Conflicted Visual Milieu – which took place on 17 September 2021. Since its inception, photography has promised to set things to scale, to grant them measure and proportion, a series of promises that have also entailed moments of irrationality or conflict that persist in and continue to shape the era of global networked digital imaging technologies. The symposium started out from (...) the diagnosis that, whilst photography continues to promise an ordered, proportionate and measured world in which things can be set to their proper scale, it also acts in many ways as an agent of dismeasure, disproportion and the unscalable. In light of this, the roundtable discussion presented here examines a range of different meanings that scale, measure and proportion have accrued in the photographic context and sets out to explore conceptual frameworks and research methodologies through which the current situation might be understood. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by explicitly (...) proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

Technology companies are increasingly being asked to take responsibility for the technologies they create. Many of them are rising to the challenge. One way they do this is by implementing “guardrails”: restrictions on functionality that prevent people from misusing their technologies (per some standard of misuse). While there can be excellent reasons for implementing guardrails (and doing so is sometimes morally obligatory), I argue that the unrestricted authority to implement guardrails is incompatible with proper respect for user freedom, and (...) is not something we should welcome. I argue instead that guardrails should be implemented for only two reasons: to prevent accidental misuse of the technology, and as a proportionate means of preventing people from using the technology to violate other people’s rights. If I’m right, then we may have to get more comfortable with developers releasing technologies that can, and to some extent inevitably will, be misused; people using technologies in ways we disagree with is one of the costs of liberty, but it is a cost we have excellent reasons to bear. (shrink)

The tremendous growth in nursing literature about spirituality has garnered proportionately little critique. Part of the reason may be that the broad generalizing claims typical of this literature have not been sufficiently explicated so that their particular implications for a practice discipline could be evaluated. Further, conceptualizations that attempt to encompass all possible views are difficult to challenge outside of a particular location. However, once one assumes a particular location in relation to spirituality, then the question becomes how one resolves (...) the tension between what are essentially theological or philosophical commitments and professional commitments. In this study, we discuss the tension between these perspectives using the idea of a responsible nursing response to spiritual pluralism. We then problematize three claims about spirituality in nursing discourse based upon our location as scholars influenced by Christian theological understandings: (i) the claim that all individuals are spiritual; (ii) the claim that human spirituality can be assessed and evaluated; and (iii) the claim that spirituality is a proper domain of nursing’s concern and intervention. We conclude by suggesting that the widely shared values of social justice, compassion and human dignity may well serve as a grounding for the critique of spiritual discourses in nursing across particularized positions. (shrink)

Gilbertson et al should be commended for their insightful exploration of expanded terminal sedation (ETS)1; however, there are a number of concerns that I will address in this response. I will first better characterise the currently accepted and commonplace ‘standard’ TS (STS), and then argue that the advocated forms of ETS draw very close to—and at times clearly constitute a subtype of—euthanasia, as opposed to representing a similar but separate practice. I will then conclude with concerns regarding the inappropriate application (...) of ETS, particularly in the non-voluntary context. Gilbertson et al distinguish ‘gradual’ TS, which they state is the currently accepted form of TS, from ‘rapid’ TS, which is then argued to be a justifiable form of ETS. However, in my experience working in multiple large public teaching hospitals in New South Wales, Australia and consistent with local clinical practice guidelines,2 3 STS falls somewhere in the middle between ‘gradual’ and ‘rapid’ TS. STS explicitly aims to achieve permanent unconsciousness so as to eliminate the potential for (and therefore relieve) suffering; conversely, lighter or more intermittent forms of sedation, or administering sedatives with aims other than to achieve unconsciousness (eg, anxiolysis), do not constitute TS proper. STS uses doses proportionate to the extent of symptoms so as to avoid ‘overshooting’ and inadvertently administering excessive doses which actually hasten/cause death, in order to distinguish STS from euthanasia in this respect. This is achieved by gradually uptitrating doses when the patient appears distressed, and is therefore by definition …. (shrink)

The precautionary principle is a useful strategy for decision-making when physicians and patients lack evidence relating to the potential outcomes associated with various choices. According to a version of the principle defended here, one should take reasonable measures to avoid threats that are serious and plausible. The reasonableness of a response to a threat depends on several factors, including benefit vs. harm, realism, proportionality, and consistency. Since a concept of reasonableness plays an essential role in applying the precautionary principle, (...) this principle gives physicians and patients a decision-making strategy that encourages the careful weighing and balancing of different values that one finds in humanistic approaches to clinical reasoning. Properly understood, the principle presents a worthwhile alternative to approaches to clinical reasoning that apply expected utility theory to decision problems. (shrink)

Counter-terrorism officials in the USA and the UK responded to the events of 11 September 2001 and 7 July 2005 with an increasing resort to the use of ?intelligence-led policing? methods such as racial and religious profiling. Reliance on intelligence, to the effect that most people who commit a certain crime have a certain ethnicity, can lead to less favourable treatment of an individual with that ethnicity because of his membership in that group, not because of any act he is (...) suspected or known to have committed. This paper explains the context in which intelligence-led policing flourishes, and how this discussion contributes to the profiling debate in both the USA and the UK, and then sets out two key contentions. First, we argue that Article 14 ECHR as applied under the UK Human Rights Act has a more protective, and less ?prosecutorial?, conception of discrimination than has the US Equal Protection Clause, meaning that judges need not find a discriminatory motive to find that discrimination has occurred. Second, we contend that Article 14 provides the judiciary with the key tool of proportionality, which, when properly applied, makes it harder for discrimination to stand up to scrutiny. (shrink)

The recent Lithuanian court practice shows discrepancies in cases dealing with partitioning of common partial divided property. Moreover, no doctrinal research has been concluded on the limits and conditions of the co-owners‘ right to demand that his share should be partitioned from the common partial ownership in Lithuania. Taking into account that proper implementation of co-ownership rights is based on common agreement of co-owners, when no agreement is reached between co-owners regarding the fact and the mode of partitioning, a (...) question arises on what conditions and to what extent the co-owner is free to implement his right to demand partitioning of his share from the common partial ownership. The research on historical developments of the partition law in different European countries shows that the co-owner’s right to partition is based on the idea of pluralistic conception of the modern property law objects. The authors of this article argue that this conception allows the co-owner to enjoy the right to dispose of his share in the common ownership as a separate object of civil turnover at his own volition and without the other co-owner’s consent. However, the right to partition is not absolute and is limited by the rights of the other co-owner to his share of the same property, so the right to partition may be implemented only following the proportionality and interest balance between the co-owners. (shrink)

Dr Bawa-Garba, a senior paediatric trainee who had been involved in the care of a child who died shortly after admission to hospital, was convicted of gross negligence manslaughter and subsequently erased from the medical register. We argue that criminalisation of doctors in this way is fraught with ethical tensions at levels of individual blameworthiness, systemic failures, professionalism, patient safety and at the interface of the regulator and doctor. The current response to alleged manslaughter during clinical care is not fit (...) for purpose because of its narrow focus on criminalisation and punishment of individual doctors. The justice system fails to take into account systemic issues in a sufficiently proper and informed way particularly in respect of human factors involved in decision-making. It is easier to convict individual doctors for gross negligence manslaughter than it is to effect legal accountability upon organisations. If educational reflections are used to apportion blame, then this could impact detrimentally on honesty and the duty of candour, with negative implications for patient safety. Regulatory processes should not be deployed without consideration of context. There is an urgent need for a fresh and open evaluation of professional and societal expectations from the regulator that should include positive action as well as those that are proportionately punitive. Justice and patient safety would be served better by more sophisticated contextualisation through an approach that balances accountability in healthcare with failures that can occur within complex systems, and by working to a radical shift towards a just culture. (shrink)

The dilemma objection charges that ‘weak’ versions of the precautionary principle (PP) are vacuous while ‘strong’ ones are incoherent. I respond that the ‘weak’ versus ‘strong’ distinction is misleading and should be replaced with a contrast between PP as a meta-rule and PP proper. Meta versions of PP require that the decision-making procedures used for environmental policy not be susceptible to paralysis by scientific uncertainty. Such claims are substantive because they often recommend against basing environmental policy decisions on cost–benefit (...) analysis. I argue that the second horn of the dilemma fails as a result of disregarding the role of proportionality in applications of PP. (shrink)

Theories of recognition have largely neglected the question of whether “struggles for recognition” might permissibly use violent means. In this article I explore the question of whether and how it is possible to show proper respect for the victim of one’s violence. Focusing on self-defense as the paradigmatic case of justified violence, two questions arise: (1) What renders an agent liable to violent action? (2) If she is liable, what is the appropriate, i.e., proportionate, degree of defensive violence that (...) still expresses respect for her? I claim that – in order to answer these questions – three dimensions of what is defended must be distinguished: goods, rights and one’s moral status. Clarifying their relationship allows me to argue that persons become liable to defensive violence if they directly pose (or intentionally and significantly contribute to) an unjustified threat to important goods protected by the rights of another person, even if they, as “attackers “or “threats “are innocent, i.e., do not display disrespect. I argue that those accounts which claim a moral symmetry between innocent attackers or threats on the one hand and innocent bystanders on the other hand, misunderstand the role of (dis) respect in a theory of justified violence. Moreover, when it comes to considerations of proportionality the dimension of (dis) respect has to be taken much more seriously than is usually the case. Here, instead of focusing mainly on the importance of goods we should pay more attention to (especially political) relationships of intersubjective (dis) respect. (shrink)