The United States has been waging the “War on Terror” for nearly two decades. Obscured among the more obvious costs of that war is the moral injury borne by many of the soldiers who have fought and participated in it. Unlike post-traumatic stress disorder, which is rooted in fear, moral injury is rooted in shame, shame for having committed a moral transgression, a violation of the moral code. Haunted by the memory of their misdeeds, these soldiers are plagued by all (...) manner of illness and infirmity, from anxiety and depression to substance abuse and suicide. In this article, I explore whether these soldiers have a right to forget, one that would entitle them to use pharmacological or psychological manipulation to cleanse their minds of the memory that they have dirtied their hands, and in that way relieve themselves of the anguish and torment from which they suffer. (shrink)

A selective excavation of labor history and an analysis of recent worker experiences in Detroit's bankruptcy expose the conflict of rights that shapes the US capitalist society. Masked by myths, forbidden memories, and selective values, the trumpeting of "workers' rights" in the United States today weakens workers' claims to rights, denying many "an existence worthy of human dignity". Thirty years ago, the National Conference of Catholic Bishops' Economic Justice for All called for a "New American Experiment" establishing positive economic human (...) rights. Today, the problems they identified have worsened, and the conversion they called for is absent from dominant political and economic discourse. The survival strategies of marginalized communities suggest a praxis of conversion creating possibilities for a future of human dignity. (shrink)

The debate on the right to be forgotten on Google involves the relationship between human information processing and digital processing by algorithms. The specificity of digital memory is not so much its often discussed inability to forget. What distinguishes digital memory is, instead, its ability to process information without understanding. Algorithms only work with data without remembering or forgetting. Merely calculating, algorithms manage to produce significant results not because they operate in an intelligent way, but because they “parasitically” (...) exploit the intelligence, the memory, and the attribution of meaning by human actors. The specificity of algorithmic processing makes it possible to bypass the paradox of remembering to forget, which up to now blocked any human-based forgetting technique. If you decide to forget some memory, the most immediate effect is drawing attention to it, thereby activating remembering. Working differently from human intelligence, however, algorithms can implement, for the first time, the classical insight that it might be possible to reinforce forgetting not by erasing memories but by multiplying them. After discussing several projects on the web which implicitly adopt this approach, the article concludes by raising some deeper problems posed when algorithms use data and metadata to produce information that cannot be attributed to any human being. (shrink)

Following the trend of sharing, and associating being on-line with being 'on-life', many people are now demanding the ownership and control of their data across all processing phases, including the erasure of their presence on the web. In Europe, recent proposals for regulation include an explicit 'Right to be Forgotten'; this right stated in the European Commission Proposal for Regulation COM 2011/12 does not emerge without controversy. It is being criticised on several grounds, including clashing with other rights, (...) such as freedom of expression, as well as setting the terrain for censorship. Besides the purely legal aspects of the proposed provisions, the chapters of this volume discuss how those legal provisions correspond in practice to worldviews and how individual and collective memory must be governed. They look into the deeper consequences of such provisions to construction of identity, culture and community formation, and how such a right affects how, what and why individuals, groups and societies remember and forget. (shrink)

The decision of the Court of Justice of the European Union (CJEU) in Google Spain v AEPD and Mario Costeja González enshrined the “right to forget” in the jurisprudence of the European Union. The judgment caused concern to transparency and open information advocates in terms of pitting a right to forget against the general right of the public to know. This, as this paper will argue, is a false distinction. The Internet is, and has always (...) been, a regulated space. Nor is the right to free expression, even in its American form, absolute. While there are genuine concerns about how the balance is struck, evolving practice is likely to identify what cases deserve deletion, to those that do not. The biggest challenge lies in how, and who, tests that balance as to what is removed from the search engines of the Internet. Finding material is important but forgetting may be just as vital to liberties as well. (shrink)

The ‘right to be forgotten’ has been labelled censorship and disastrous for the freedom of expression. In this paper, we explain that effecting the ‘right to be forgotten’ with regard to search results is ‘censorship’ at the level of information retrieval. We however claim it is the least heavy yet most effective means to get the minimum amount of censorship overall, while enabling people to evolve beyond their past opinions. We argue that applying the ‘right to be (...) forgotten’ to search results is not a question of just ‘censoring’ search engines, but that seen from a broader perspective we—as society—will inevitably have to deal with developments in information technologies and choose between three types of ‘censorship’: censorship of original sources, that is on the level of information storage; censorship on the level of the initial encoding of that information or censorship on the level of information retrieval. These three levels at which ‘censorship’ can take place are the three basic elements of the memory process; whether biological, technological or hybrid with the use of mnemonic technologies. Applying censorship as a means of ‘forgetting’ in the collective hybrid memory of the Web enables us to counter—at least partially—the functioning of the Web as a ‘Panopticon over Time’. (shrink)

Morality bears on what we should forget. Some aspects of our identity are meant to be forgotten and there is a distinctive harm that accompanies the permanence of some content about us, content that prompts a duty to forget. To make the case that forgetting is an integral part of our moral duties to others, the paper proceeds as follows. In §1, I make the case that forgetting is morally evaluable and I survey three kinds of forgetting: no-trace (...) forgetting, archival forgetting, and siloing. In §2, I turn to how we practice these forms of forgetting in our everyday lives and the goods these practices facilitate by drawing on examples ranging from the expunging of juvenile arrest records to the right to privacy. In §3, I turn to how my account can help us both recognize and address a heretofore neglected source of harm caused by technology and big data. In §4, I end by addressing the concern that we lack control over forgetting and thus can't be required to forget. I argue this challenge can be answered, but there’s a harder challenge that can’t. Forgetting is under threat. To address this challenge and preserve forgetting, we must change the world. (shrink)

The concept of people’s memory maintains the finiteness of time and capacity. However, with the advancement in technology, the amount of storage memory a person can use has increased dramatically. Given that digital traces can hardly be erased or forgotten, individuals have begun to express their desire to be forgotten in the digital world, and governments and academia are considering methods to fulfill such wishes. Capturing the difficulties in terms of a cultural lag between technological advancements and regulations on individuals’ (...) data privacy needs, we identify six motives for individuals wishing to be forgotten online and investigate its expected effects on online content generation through a qualitative content analysis of 222 responses from open-ended surveys in Korea. Our findings provide implications for the literature on individual privacy and the right to be forgotten employing the cultural lag, as well as, elaborate further on the relationship between being forgotten online and the legitimacy of such requests of individuals. Additionally, implications for data providers, data controllers/processors, and governments to address this lag and build a balanced system of personal information are provided. (shrink)

_A leading contrarian thinker explores the ethical paradox at the heart of history's wounds_ The conventional wisdom about historical memory is summed up in George Santayana’s celebrated phrase, “Those who cannot remember the past are condemned to repeat it.” Today, the consensus that it is moral to remember, immoral to forget, is nearly absolute. And yet is this right? David Rieff, an independent writer who has reported on bloody conflicts in Africa, the Balkans, and Central Asia, insists that (...) things are not so simple. He poses hard questions about whether remembrance ever truly has, or indeed ever could, “inoculate” the present against repeating the crimes of the past. He argues that rubbing raw historical wounds—whether self-inflicted or imposed by outside forces—neither remedies injustice nor confers reconciliation. If he is right, then historical memory is not a moral imperative but rather a moral option—sometimes called for, sometimes not. Collective remembrance can be toxic. Sometimes, Rieff concludes, it may be more moral to forget. Ranging widely across some of the defining conflicts of modern times—the Irish Troubles and the Easter Uprising of 1916, the white settlement of Australia, the American Civil War, the Balkan wars, the Holocaust, and 9/11—Rieff presents a pellucid examination of the uses and abuses of historical memory. His contentious, brilliant, and elegant essay is an indispensable work of moral philosophy. (shrink)

Human nature is something of a taboo on the left wing of contemporary political theory and scarcely more than a commonsense assumption on its right wing. This article aims to expose the taboo and to challenge the assumption. There is no way, we argue, to defeat conservative political theory without delving into political anthropology. With this purpose in mind, our article analyses the writings of Marx and Engels, and Simondon’s concepts of the transindividual and technics. It shows that Simondon’s (...) theory of technics allows new interpretations of many of the themes scattered in Marx’s and Engels’s works and helps to formulate a materialist political anthropology which entails a political project of liberating ‘human nature’ _from_ labour. (shrink)

Si oblitus fuero tui, Jerusalem, oblivioni detur dextera mea.” When Jerome commented on Ps. 136.5, he interpreted the passage allegorically. Sitting in exile by the waters of Babylon, the Israelites had hung their harps on the willows and, in a foreign land, would not sing the songs of Zion. Yet they refused to forget their origin, preferring, as King James's translators put it, that “my right hand forget her cunning.” Jerome observes that this is always the hand (...) whose work remembers the Lord. Yet clearly, by the early fifth century, the idea of manual dexterity had become a trope, a figure in some higher argument. Augustine compares the “lower gods”, reduced to performing menial tasks in the administration of the universe, to workers in the silversmiths' quarter through whose many hands a vessel passes before it is finished, even if it could have been perfected by any skilled member of their team. Slightly more pragmatically, Justinian's Digest mentions a piece of silver plate, brought on approval to a client's house by a uascularius but then inadvertently destroyed, as an instance actionable under the laws of contract. (shrink)

Ricoeur’s text divides into three parts corresponding to its title: the phenomenology of memory; the epistemology of history; and the hermeneutics of the human historical condition, its “emblem of vulnerability” being “forgetting”. That the words “memory” and “history” appear in the title proves unsurprising. But what of the title’s final word, “forgetting”? The putative “duty of memory” to “not forget” relegates forgetting to a via negativa, the “reverse side of memory”. Ricoeur, however, raises the prospect of a “right (...) of forgetting”, “a positive meaning” for forgetting that entails the “spirit of forgiveness” and “reconciliation”. By reconsidering forgetting, Ricoeur moves toward the praxis of forgiveness beyond epistemological reflections—including the phenomenology of memory and totalizing, Hegelian philosophies of history —and utilitarian ethico-politics, and redresses lacunae in Time and Narrative and Oneself as Another. (shrink)

This article challenges Nicholas Wolterstorff’s rights-based reading of Old Testament orphans by arguing that the prophetic demand for their cause not only assumes a right-order ethos championed in the Torah, but in doing so exposes the shortcomings in how justice is defined for orphaned children within current rights ideology, whether theistic or not. I present the orphan’s historical trajectory towards becoming socially vulnerable as the final stage in the transition from the kinship-redeemer justice of Israelite village clans to the (...) chesed justice of the patronage economy in emerging urban conditions. In light of these conditions, I show how the orphan laws in Deuteronomy are, counter to Wolterstorff’s claims of corruption, attempting to re-create in legal terms the kinship bond and chesed benevolence that defines the orphan’s justice as the return to a family. I argue that the prophet does not blame inherently corrupt laws, but rather blames patrons and elders who have ignored good laws and ignored right-order by forgetting their brothers’ and sons’ children. (shrink)

Economic principles operate in much the same way whether on land or in the oceans. It is the very same tragedy of the commons that almost wiped out the buffalo that is now endangering precious fish stocks. The answer to these challenges, in both cases, is privatization. Establishment of private property will not only solve the problems of the over fishing of the ocean commons, but will also create incentives for investors to use new technologies that could radically increase the (...) productivity of the ocean for fish and other resources. In order to make these gains however, we must make an irrevocable commitment to defining and defending these property rights as a permanent institution of the future of our oceans. (shrink)

Given that there is referential uncertainty (noise) when learning words, to what extent can forgetting filter some of that noise out, and be an aid to learning? Using a Cross Situational Learning model we find a U-shaped function of errors indicative of a “Goldilocks” zone of forgetting: an optimum store-loss ratio that is neither too aggressive nor too weak, but just the right amount to produce better learning outcomes. Forgetting acts as a high-pass filter that actively deletes (part of) (...) the referential ambiguity noise, retains intended referents, and effectively amplifies the signal. The model achieves this performance without incorporating any specific cognitive biases of the type proposed in the constraints and principles account, and without any prescribed developmental changes in the underlying learning mechanism. Instead we interpret the model performance as more of a by-product of exposure to input, where the associative strengths in the lexicon grow as a function of linguistic experience in combination with memory limitations. The result adds a mechanistic explanation for the experimental evidence on spaced learning and, more generally, advocates integrating domain-general aspects of cognition, such as memory, into the language acquisition process. (shrink)

The article argues that although all scholars within aesthetics basically know and recognize it, there is a tendency in many of its traditions to forget or to underestimate the importance of the aesthetic judgment. With Thierry de Duve’s short paper “Why Kant got it Right” as its point of departure, this importance is discussed. Not only its importance in aesthetic relations and to aesthetics as a discipline, but also in a broader sense, through the contribution to the overall (...) social cohesion of society, offered by aesthetic judgments. All judgments are pronounced as-if a shared scale of aesthetic preferences did exist. Judgments are addressed to communities, to the notion of a joint “we”, and thus they do participate in the creation and the maintenance of the social as such. Also professional aesthetic critique, including art critique, should be aware of that, since even historically achieved differentiations and divisions of labour may be lost again if not being developed and kept up to date. (shrink)

In 1989, the age of power political realism ended. The conditions were set to replace the prevailing Hobbesian model of peace by deterrence with the considerably more challenging Kantian model of peace by right. If, however, Huntington's paradigm of fighting civilizations were right, we would have to forget Kant and remember Hobbes. Sober rationality, healthy distrust, striving for power accumulation and all the other instruments from the realist's toolbox of political prudence are very well suited to facilitate (...) political self-assertion in an age of violently clashing cultures. However, this helplessness is not well grounded. Considering that from the very beginning liberalism is a theory of religious and ethical pluralism and well-experienced in dealing with problems of multiculturalism, it is at least possible to argue for a weak liberal universalism which provides normative foundations for a global order of peacefully living together. Of course, conceptual and moral modesty is crucial. If the human rights doctrine wants to defend its universal claim in the face of cultural diversity , it has to restrict itself to the conditions of esse: the pre-cultural and sheer natural conditions of human being and human coexistence. However, the formulation of the conditions of bene esse has to be left to culture and its authorities and belief systems which buttress a cultural constitution of meaning, both theologically and metaphysically. Traditional natural rights theory knew that both have to go together, and that the esse-enabling duties necessarily enjoy priority. No cultural conception of thriving life and existential significance can be accepted which contradicts the fundamental imperatives and conditions of pure human existence and coexistence. (shrink)

There is widespread opinion that, notwithstanding deviations, the political life of humanity on a large scale is on the path of progress, and humans are becoming freer and more enlightened with time. I am going to contend with this opinion, namely, with a part of it telling that the prevailing mass of the people strives to achieve more freedom and enlightenment. On the opposite, freedom, individual independence, and political rights are of minor importance to the mass. The ideology of liberalism (...) in its classical form, as created by John Locke, Immanuel Kant, John Stuart Mill and others, yields to the pressure of the ideology of state paternalism. The pressure comes not only from above ; the people also welcome more paternalism. They appear not to value their individual freedom and independence, and they are inclined to give them up voluntarily to some mighty organization such as the state in exchange for care, protection and leadership. Liberalism has played an important role in the development of human civilization and the formation of the Western world, but new ideologies and political practices are pushing it out of people’s minds. For the author, as adherent of classical liberalism, this is unfortunate. However, I wish to treat this issue realistically, even if the facts conflict with my own convictions and desires. (shrink)

In this investigation, I focus on individual memory behaviors for which we commonly blame and praise each other. Alas, we too often do so unreflectively. Blame and praise should not be undertaken lightly or without a good grasp on both what we are holding people responsible for, and the conditions under which they can be held responsible. I lay out the constructivist view of memory with consideration for both remembering and forgetting, and special attention to how we remember events as (...) well as whether we remember them. I generate seven defeasible generalized moral rules that should govern individual memory behaviors including remembering our own past wrongs, holding grudges, and creating positive as well as negative memories. By such means may we all remember and forget rightly and not for ill. (shrink)

An argument for the abolition of Intellectual Property Rights (IPR) and a step into the wild blue yonder – i.e., beyond Open Access (OA) and Creative Commons (CC) protocols. The “Introduction,” prior to “Paralogisms for Artist-scholars” utilizes an almost Pater-esque aesthetic deployment of time-senses and verb tenses that also resembles the doubled subjective states of Derridean exposition, but actually opens on to theologically inflected re-considerations of the generative nature of gramma.

The metacognitive stance of Smith et al. risks ignoring sensory consciousness. Although Smith et al. rightly caution against the tendency to preserve the uniqueness of the human mind at all costs, their reasoned stance is undermined by a selective association of consciousness with high-level cognitive operations. Neurobiological evidence may offer a more general, and hence more inclusive, basis for the systematic study of animal consciousness.

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the forfeiture thesis with (...) an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter. (shrink)

Autonomous and automatic weapons would be fire and forget: you activate them, and they decide who, when and how to kill; or they kill at a later time a target you’ve selected earlier. Some argue that this sort of killing is always wrong. If killing is to be done, it should be done only under direct human control. (E.g., Mary Ellen O’Connell, Peter Asaro, Christof Heyns.) I argue that there are surprisingly many kinds of situation where this is false (...) and where the use of Automated Weapons Systems would in fact be morally required. These include cases where a) once one has activated a weapon expected then to behave lethally, it would be appropriate to let it continue because this is part of a plan whose goodness one was best positioned to evaluate before activating the weapon; b) one expects better long-term consequences from allowing it to continue; c) allowing it to continue would express a decision you made to be resolute, a decision that could not have advantaged you had it not been true that you would carry through with it; d) the weapon is mechanically not recallable, so that, to not allow it to carry through, you would have had to refrain from activating it in the first place, something you expected would have disastrous consequences; e) you must deputize necessary killings to autonomous machines in order to protect yourself from guilt you shouldn’t have to bear; f) it would be morally better for the burden of responsibility for the killing to be shared among several agents, and the agents deputizing killing to machines can do this, especially where it’s not predictable which machine will be successful; g) a killing would be morally better done with elements of randomness and lack of deliberation, and a (relatively stupid) machine could do this where a person could not; h) the machine would be acting as a Doomsday Device, so that it could not have had its hoped for deterrent effect had you not ensured that you would be unable to recall it if enemy action activated it; i) letting it carry through is a necessary part of its own learning process, and you expect that this learning will have salutary effects later on; j) human intervention in the machine’s operation would disastrously impair its precision, or its speed and efficiency; k) using non-automated methods would require human resources you just don’t have in a task that nevertheless must be done (e.g., using land-mines to protect remote installations); l) the weapon has such horrible and indiscriminate power that it is doubtful whether it could be actually used in ways compatible with International Humanitarian Law and the Laws of War, which require that weapons be used only in ways respecting distinctness, necessity and proportionality, but its threat of use could respect these principles in affording deterrence provided human error cannot lead to their accidental deployment, this requiring that they be controlled by carefully designed autonomous and automatic systems. I then consider objections based on conceptions of human dignity and find that very often dignity too is best served by autonomous machine killing. Examples include saving your village by activating a robot to kill invading enemies who would inflict great indignity on your village, using a suicide robot to save yourself from a less dignified death at enemy hands, using a robotic drone to kill someone otherwise not accessible in order to restore dignity to someone this person killed and to his family, and using a robot to kill someone who needs killing, but the killing of whom by a human executioner would soil the executioner’s dignity. I conclude that what matters in rightful killing isn’t necessarily that it be under the direct control of a human, but that it be under the control of morality; and that could sometimes require use of an autonomous or automated device. (This paper was formerly called "Fire and Forget: A Defense of the Use of Autonomous Weapons in War" on Philpapers; the current title is the title of the published version.). (shrink)

Whether or not to grant ‘amnesty’ has been a contentious policy issue in a wide range of settings, from human rights violations to draft avoidance to library fines. Recently, the idea of amnesty has come to structure many debates over irregular immigration. While amnesty’s meaning is usually treated as self-evident, the term in fact signifies in a variety of normative directions. This article employs amnesty as an optic to examine accountability questions that structure normative debates over irregular immigration in liberal (...) states. It distinguishes among conceptions of amnesty emphasizing forgiveness, erasure and vindication, and argues that developing a vindicatory account of amnesty is both particularly difficult and particularly necessary in the immigration setting. (shrink)

The first section of this chapter illustrates that the pogrom in Rostock-Lichtenhagen in 1992 has not been categorized sufficiently as a substantial milestone of right-wing violence in postwar Germany. This pogrom led to historically significant limitations in the right to asylum, ultimately resulting in a change to the German constitution. We propose to look at Rostock-Lichtenhagen as an example to explain that practices of remembering right-wing violence, a process that we describe with the term ‘Doing Memory on (...) right-wing violence’, is a central part of creating a society’s basic story. This basic story, in turn, contributes to how a society understands itself. In this chapter’s second section, we argue first that analyzing practices of memory of right-wing violence, be they acknowledging, forgetting or suppressing those practices, actually make it possible to even expose the persistence of the basic story as a central element of political culture. Second, we want to uncover how potential and publicly effective interventions of and changes to the basic story might look like. Here, we build on Habermas’ model of democracy, utilize Susan Bickford’s work on listening as an important element in her political philosophy and refer to Benjamin Barber, who articulates that a participatory democracy requires political listening. As a result, our chapter’s third section demonstrates how listening can be conceptualized from a supra-individual perspective and how questions that are critical of existing hegemonic structures can prioritize a focus on hegemonic (non)listening. Lastly, we will sketch out strategies to intervene in hegemonic (non)listening. These strategies connect theoretically with concepts of ‘counter publics’ and ‘opinion forming publics’ and reference, among others, the work of Seyla Benhabib and Iris Marion Young, thus enabling the creation and execution of resistance practices of Doing Memory on right-wing violence. (shrink)

The forfeiture thesis is posed as an independent thesis in moral philosophy according to which agents forfeit (or lose) rights if they perform certain act-types. According to many, this thesis plays a crucial role in the justification of (legal) punishment. In this paper, I argue that the forfeiture thesis is unnecessary – we can simply dismiss it without any substantive loss. Echoing an aspect of the specificationist approach to rights, the reason is that we may replace the forfeiture thesis with (...) an exception clause in the very content of the right not to be subjected to hard treatment: P has no right not to be subjected to hard treatment simpliciter, but a right not to be subjected to hard treatment unless P performs an act-type φ – e.g., murdering an innocent person. This alternative has substantive advantages over the forfeiture thesis, which, in turn, shows that the former cannot be reduced to the latter. (shrink)

This paper argues that the path to knowledge concerning the right account of proper names attends to their representational and epistemological roles — to, that is, their contribution in sentences of the form "A is F" to how things are being represented to be by the sentence, to the information about how things are that such sentences deliver to us, and to the way this information is used to justify the production of such sentences. These considerations, I argue, support (...) a version of the description theory of reference for names. (shrink)

According to Pessimism about moral testimony, it is objectionable to form moral beliefs by deferring to another. This paper motivates Pessimism about another source of moral knowledge: propositional memory. Drawing on a discussion of Gilbert Ryle’s on forgetting the difference between right and wrong, it argues that Internalism about moral motivation offers a satisfying explanation of Pessimism about memory. A central claim of the paper is that Pessimism about memory (and by extension, testimony) is an issue in moral psychology (...) rather than moral epistemology. That is because it is best explained by appeal to claims about the constitution of moral knowledge as a state of mind, rather than requirements on belief formation. The paper also provides reason to think that the focus on testimony, pervasive in the literature, is something of a red herring. (shrink)

Doug Husak suggests that sometimes an actor should be deemed reckless, and not merely negligent, with respect to the risks that she knowingly created but has forgotten at the moment of action. The validity of this conclusion, he points out, depends crucially on what it means to be aware of a risk. Husak’s neutral prompt and counterfactual actual belief criteria are problematic, however. More persuasive is his suggestion that we understand belief, in this moral and criminal law context, as a (...) concept whose meaning is determined by its function as a culpability standard. Husak concludes that inadvertent actors are often less culpable than knowing-but-later-forgetful actors; this is plausible, but there are also numerous counterexamples. Holly Smith focuses on negligence cases in which an agent’s failure to notice a risk stems, not from a prior culpable choice, but from an objectionable attitude or set of attitudes. She is right to emphasize that genuine moral culpability does not depend on conscious choice. However, Smith also asserts that decisions that flow from an actor’s objectionable attitudes are only rarely culpable, because they often do not arise from a reasonably full configuration of the actor’s motives. This last requirement is, I fear, an unrealistic and unnecessarily demanding criterion of culpability. Even when many of the actor’s evaluative attitudes are inactive in Smith’s sense, the actor might deserve blame for not bringing them to bear on his decision. Michael Moore and Heidi Hurd thoroughly explore, and find deficient, H.L.A. Hart’s unexercised capacity theory of negligence. They are correct that that theory requires a further judgment: an actor’s inadvertence is culpable only if he had the capacity to have adverted if X where X is the source of the actor’s moral desert. They overstate, however, in suggesting that the capacity issue falls out of the picture once we identify that underlying desert basis. The authors also worry that if desert is grounded on an underlying vice, we lack a reliable way of ranking the different vices that might explain the actor’s inadvertence; this is not a fatal objection, however, because negligence determinations are quite feasible even in the absence of clear rankings. Moore and Hurd conclude by identifying eight distinct categories in which criminal liability for negligence is justifiable. Negligence is indeed a surprisingly complex and pluralist concept. The three articles in this symposium brightly illuminate some of the most fundamental conceptual and normative issues in the debate over whether it is just to blame and punish the negligently inadvertent. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Right HeartIngrid GouldI remarked to a friend, “We haven’t spoken since my arrest!” Alarm and confusion clouded his face, given my half-century of squeaky-clean living. “Cardiac arrest,” I clarified. “The fire department rebooted me.”An electrophysiologist diagnosed Arrhythmogenic Right Ventricular Dysplasia, prescribed medication, and implanted a defibrillator. For the next three-and-a-half years, he helped me live with a disease I didn’t know existed until he told me (...) I had it.The disease progressed—an ironic, disease-centric term since its advancement was to my detriment— prompting my cardiologist to recommend seeing someone who specialized in heart failure. I resisted the very idea of heart failure, a terrible term for a struggling organ, but took her advice and scheduled an appointment.The new cardiologist urged transplant testing, a lengthy process. I agreed, figuring that by the time I needed a new heart in 15–20 years, they’d be rolling off 3D printers.To record occasional transplant musings and inchoate fears and perhaps, over time, untangle them, I began journaling. I chronicled my passage through the echocardiogram, heart catheterization, 31 tubes of bloodwork, interviews with different clinical specialties, a pulmonary function test in a machine reminiscent of Star Trek’s Transporter, and more. Testing had barely begun when my medication stopped working—a Halloween shock.I began a harsher medication, underwent an ablation, and spent six weeks in a wearable defibrillator, a vest with abundant wires, and a purse-sized battery pack that made me resemble a character in [End Page 123] the Jetsons. This attire did not bring holiday comfort or joy to the TSA1 when I flew to visit my sister. As my R-waves faded to a whisper, I swapped the vest for a second implanted defibrillator, substantially more sensitive than the first.In early 2018, we learned I had qualified for transplant listing, though I wished to get as much mileage as possible from the original engine. My cardiologist warned, “There is no Plan B—no machine, device, or medication for the long-term. You will need a transplant.” He explained that since most cardiac patients have left-heart problems, companies develop products for the left side of the heart. My problem was on the right—a tiny market. He also cautioned that a patient needs to be sick enough to warrant transplant and well enough to remain a candidate, survive the surgery, and recover.Although clinically I was ready, I was not personally ready. I felt too good to trade an excellent quality of life for the promised miserable post-transplant year. The cardiologist wisely asked if I wanted to speak with another patient. When I requested someone beyond the dreaded first year, he put me in touch with two women who had received new hearts a few years earlier and befriended each other. They soon became my invaluable mentors and cherished friends. I will never forget seeing them stride into our first meeting and thinking, “They are beautiful! They look totally normal!”By May, climbing four flights of stairs took as much effort as five used to take. Tests confirmed further deterioration and suggested I had 7–13 months of declining health before my heart would give out completely. We chose a date for hospital admission, and I started telling people outside my immediate family. Most were flabbergasted, believing heart transplants were the last hope of the desperately ill. I did not look moribund, though, apparently, I was.The eight months after my first transplant appointment let me prepare psychologically to bid farewell to my heart—the metaphor for kindness, love, and bravery in our culture—and to welcome a new organ from a generous person less medically fortunate than I.In the hospital, I met others awaiting their hearts. A sudden intimacy arises when mortal choices catapult people into a medical realm suggestive of science fiction. Add the emotional intensity that accompanies knowing your extended life comes courtesy of a person who breathes no more on this earth and you wonder how an organ recipient integrates sorrow and gratitude.Two weeks after I was hospitalized, my cardiologist informed me the wait was over... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:An Interesting Framework That Deserves to Be Developed and Used WidelyThe author reports no conflict of interests.Friesen's "Why Democratize Psychiatric Research?" is an important piece of work and makes a compelling epistemic and ethical case. As someone who has spent decades in the field of (in chronological order): survivor involvement, service user involvement, patient and public involvement and now lived experience; I am delighted when I see a robust (...) reminder of the reasons why we need to take this seriously. The author is right to stop us sleepwalking into an activity because funders expect it, psychiatry now prides itself on it, and academics write countless pieces on it. People who have not lived in a time when our involvement in research was entirely counter-cultural (or even symptomatic of a patient lacking insight) could be forgiven for thinking it was always like this.There are, however, three themes that could and should be developed from this thinking. They concern assumptions about general medicine, the institutional discrimination within psychiatry, and the significant cultural change that has occurred since the rise of the survivor movement as one of the later rights movements of the last century.Many years ago, I would have made the same argument about how psychiatry lacks the objectivity and testable biomarkers of general medicine. As I have spent more time with assorted medics, many at the top of their game, it is clear that there is much more subjectivity across much of medicine and rather than place psychiatry as uniquely needing more democratic research (a proposition I wholeheartedly endorse), I would love to see us take these arguments into medicine as a whole. Until we do this, we risk "othering" psychiatry as a whole rather than showing an area in which psychiatric patients (or survivors, or service users, or people with lived experience, as you wish) can become leaders in progressive medical thinking.A more important omission which needs significant addressing if we genuinely are to democratize psychiatric research is the racial inequality within psychiatric practice. There are many inequalities both within psychiatry and in broader society that contributes to mental health inequalities, but the experience of racialized communities, in our [End Page 139] psychiatric services has been a consistent theme. For those unfamiliar with the extent of difference between White and Black experience of UK psychiatry you need only look at the differential rates of detention under mental health legislation. National Health Service data show that people from minority ethnic groups are more likely to experience compulsory detention than their White counterparts. In 2020/21, rates of detention by ethnicity were Black or Black British: 309.4 per 100,000 people compared with White: 76.2 per 100,000 people (National Health Service Digital, 2021.)If we are to truly democratize research in psychiatry, we need to more actively engage racialized communities and ensure that they are leading and coproducing more of our research. Although this forms part of the argument in feature #3, it warrants being front and center of features #1 and #4 where the differences between Black and White are so marked.We as democratizing researchers should be carrying an anti-racist banner high and doing more to both improve our own practice and constantly challenge a psychiatry that has failed, review after review, to address this. The Whiteness and Race Equality Network, part of the Collaborating Centre for Values Based Practice1 is working hard on this theme but much more is needed.The final challenge which needs addressing, and one which certainly needs the analytical skill and clarity of thinking that Friesen has applied throughout, is the breadth and diversity of what now constitutes "lived experience" in mental health. Even if we restrict our scope to psychiatry, this is a much broader research field than when survivor research started to be taken seriously. The vast majority of survivor researchers would have spent considerable periods of time as inpatients in psychiatric hospitals, often as detained patients. None of us would have chosen to self-diagnose, most of us would have done all we could to shed our diagnostic labels, some of us find it hard to forget... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy of Music Education Review 12.2 (2004) 188-193 [Access article in PDF] Response to June Boyce-Tillman, "Towards an Ecology of Music Education" Mark Garberich Michigan State University June Boyce-Tillman's "Towards an Ecology of Music Education" challenges the foundations of music education philosophy and its application to practice. Beginning with the identification and clarification of what are described as "subjugated ways of knowing," she advocates the restoration and application of (...) these approaches to instruction. She completes the description and definition of the interlocking [End Page 188] areas of musical experience by providing an actual project that exemplifies these tenets. I offer my humble appreciation of the attention she gives to the exploration of alternate approaches to music instruction and to the need for a clearer connection between community and individual and between culture and music education."Toward an Ecology of Music Education" is about values. Values may well be the defining word of this era in Western education and society. Changes in demographics, belief systems, and political dogma have de-stabilized the foundations of social and political frameworks, regardless of their efficacy. So, I would like to elaborate on the values represented in this paper, discussing them in relation to teaching, democracy, and diversity in music education. Values and Teaching Each of us carries our worldview into our work and we cannot deny our philosophical identity. However, the degree to which we allow our worldview to affect our teaching should be limited by the priorities of our instruction. Consider music education as having three broad perspectives: (a) purpose in society, (b) purpose for the individual, and (c) aesthetics (inherent value). The position of the three is not hierarchical and each can be considered apart from the others. We give evidence of our real motivation in music education by the emphasis we place upon each of these three. The aesthetically inclined find appeal in teaching for the inherent value in music. Those who strongly maintain a social agenda may be attracted by the possibilities of improving society as a whole through music education. Plato's view of music education was oriented almost exclusively toward his purposes for society. In his writing, any consideration of effect on the individual was only incidental to his primary concern of its effect on society.The true teacher, however, will always gravitate toward the purpose for the individual. A person is the source of his ideas, and does not the creator stand above his creation? Do music teachers teach music? No, they teach students about music. Though we cannot separate ourselves from our love of beauty of form and expression in music nor can we forget our personal commitments toward improving the world around us, yet we must remember that it is the individual student who is the focus of music instruction. If this is true, we can draw some conclusions about our right to bring about change.Do we have the right to proselytize individual students so that they might become adherents of our worldview? As an evangelical Christian, perhaps even a fundamentalist, I admit that I have observed changes in society over my lifetime with some sadness. It is difficult to see the country I love, which was founded upon Judeo-Christian principles, gradually losing touch with those principles. How will departure from those principles affect the direction and stability of the [End Page 189] nation founded upon them? As a teacher, however, I understand that it is my responsibility to teach students about music and that I have a responsibility to parents, who in a democratic society, hold responsibility not only for the spiritual, moral, and social education of their children, but also for the spiritual, moral, and social direction of a nation. Teachers are obliged to live as moral examples to students and to demonstrate values in their actions, but to consider the wishes of parents when it comes to the advancement of personal agendas. We do not have the right to encroach upon the mentoring relationship between parents and children. We must also be careful lest we... (shrink)

Resumen: La aproximación que Durkheim esboza en Las Reglas es en la actualidad más bien criticada: sería una visión conservadora, que olvida la importancia de los agentes y una sociología de lo social que solo observa el orden establecido. Sin embargo, una lectura atenta de Las Reglas muestra que sus afirmaciones básicas -que es un hecho social, que debe ser visto como una cosa, y que debe buscarse su explicación a través de otros hechos sociales- son correctas y pueden integrar (...) los elementos válidos de las críticas realizadas. Detrás del rechazo a Durkheim aparece el rechazo a una afirmación radical de Las Reglas que nos resulta más bien intolerable: que la imposición es parte natural de la vida social.: The approach that Durkheim delineates in The Rules of Sociological Method is currently criticized: it is a conservative view that forgets the relevance of agents and it is a social sociology that only observes established order. However, an intensive reading of The Rules shows that their basic statements -about what is a social fact, that they should be treated as things, and that their explanation should be searched in other social facts- are correct one and they can integrate the correct elements argued by its critics. Behind the rejection to Durkheim there is the rejection to a radical statement in The Rules, one that is unbearable for us: that coercion is a natural part of social life. (shrink)

The Bible recounts that in Eden, Adam gives names to all the animals. But those names are not only representations of the animals’ nature, rather they shape and constitute it. The naming by Adam contains in itself the divide between the human and non-human. Then, there is the Fall: Adam falls and forgets Being. Though he may still remember the names he gave to the animals in Eden, he is no longer sure about their meaning. Adam will have to try (...) to remember his own intentions. Through this effort he can also become aware of how he thinks, who he is, and what was the natural order he knew before the Fall. Medieval bestiaries tell us this story. Bestiaries are works of word play populated by animal figures. They depend on back-and-forth anthropomorphization, or circular metaphor. Animal figures are portrayed as both a mirror of human nature and a window on it. Bestiaries served as means for the moral education of human beings and, at the same time, a way to criticize the current state of humanity, including political and ethical habits. Within the moral irony of medieval bestiaries we can find the origin of the invented nature that modernity will try, subsequently, to insert into natural rights discourse through the teleological oxymoron of their naturalized and naturalizing counter-factuality. I will propose a historical-semiotic journey through the ironic representations of the human-beasts from the ancient world to contemporaneity. The proposal resulting from this cultural excursion is that the words included in the many national and international Rights declarations operate much like the names Adam gave to the animals and still more as they were re-read in medieval bestiaries, both textual and musical. So, can the words of Rights still serve as musical scores, open to an infinite play of re-signification? If we were able to overcome the modern culture/nature and human being/animal dualisms, we could cast, today as in the past, a zoological gaze on human rights by means of contemporary bestiaries and, in this way, perhaps find the gist of rights’ names and our ever regained and ever lost again humanity. (shrink)

Although the patient’s right to decide what they want for themselves, which is encompassed in the notion of ‘patient-centred medicine’ and ‘informed consent’, is widely recognised and emphasised in Japan, there remain grave problems when it comes to respecting the wishes of the no-longer-competent when death is imminent. In general, it is believed that the concepts above do not include the right to refuse treatment when treatment withdrawal inevitably results in death, even when the patient previously expressed the (...) wish to exercise this right when competent. In this paper, I first explain the current social and legal situation in Japan, where the lack of legal clarity regarding the right to reject treatment tends to result in doctors adopting the interpretation of patients’ words that is least conducive to treatment withdrawal. I then argue that the right to refuse treatment should be taken seriously, even when the patient is no longer competent, or the treatment refusal will result in death. I suggest that the concept of relational autonomy might have some practical and valuable implications in a country where individual autonomy is considered incompatible with societal values. Finally, I answer possible objections to relational autonomy and address the widespread societal concern about sliding down the slippery slope from allowing the right to refuse treatment to the obligation to die. (shrink)

This essay focuses on Mahmoud Darwish’s exilic experience as depicted in Memory for Forgetfulness: August, Beirut, 1982 (1986). For Darwish, the siege of Beirut was a climactic moment in which he realized that he is stuck on a perpetual threshold. Imposed by the sovereign power, this exilic threshold characterizes the Palestinian refugees in Lebanon bereft of their rights as citizens and held outside their homeland and political domain. I wish to argue that, rather than being trapped in this condition, Darwish (...) takes it as a vantage point to critically reconstruct the notions of homeland and political belonging. This involves a contrapuntal approach to the notions of homeland, diaspora, and memory, and acts as a form of resistance. It converts the exilic threshold that keeps the poet neither outside nor inside the political domain into a site of worldliness in both the Arendtian and Saidian sense of the term. Elaborating on Judith Butler’s account of cohabitation and diasporic thinking, I argue that the exilic condition Darwish describes can give rise to a political ethic that resists the homogenization of spaces and temporalities, and allows for an alternative sense of political belonging. (shrink)

Courts and jurors sometimes refuse to assign liability to defendants on the basis of statistics alone, despite their apparent reliability. I argue that this refusal is best understood as a recognition of defendants’ right to security. Understood as a robust good in Philip Pettit’s sense, security requires that someone risking harm to others’ protected interests adopt a disposition of concern that controls against wrongfully harming them. Since trials risk harm, the state must adopt such a disposition. Statistics leave open (...) the possibility of innocence and so wrongful harm in a way that the state cannot ignore; if it does use such statistics, it makes defendants wrongfully insecure. This explanation of the problem of bare statistical evidence is especially apt because security grounds the right to a fair trial and judicial procedural rights more generally. (shrink)

The distinction between kinds of guilt has not lost its power to illuminate matters, and it remains a great tool to study the consequences of forgetting guilt of any kind. Karl Jaspers made the distinction between kinds of guilt mainly to ease the Germans coping with guilt, as all of them were blamed for the evil that happened under Adolf Hitler. Jaspers believed that in using this distinction the German nation could have come back to its origins, and thus purified, (...) take its part in the possible future unity of the world and of all mankind. But soon after World War II ended, a confluence of political, social, psychological and philosophical factors contributed to a situation in which a large number of culprits were not brought to account: criminals were rarely rightly punished. In addition, many Germans believing in the ideology of National Socialism felt no guilt in terms of morality; they downplayed the political guilt; they negated the very existence of the metaphysical guilt. The process of forgetting guilt occurred. (shrink)

Faith healing deaths occur infrequently in Canada, but when they do they pose a considerable challenge for criminal justice. Similar to caregivers who absent-mindedly and fatally forget a child in a hot vehicle, faith healers do not intentionally harm their children. It can seem legally excessive and unjust to prosecute achingly bereaved parents. But unlike ‘hot-car’ deaths, faith healing parents are not absent minded in the deaths they cause. Rather, significant deliberation and strength of will is necessary to treat (...) their child’s ailment with faith alone. Two different Criminal Code provisions can be brought to bear upon these deaths, namely, s. 215 ‘Failing to provide the necessaries of life’ and s. 219 ‘Criminal negligence’. From a public, medical, and scientific perspective treating potentially fatal ailments with ‘faith’ and ‘prayer’ seems like reckless endangerment, giving apparent justification to the more serious criminal negligence charge. But, the fault element in the criminal negligence offence continues to be a vexing issue in Canadian jurisprudence. People accused of negligence-based offences are commonly held to the standard of what a reasonable person might predictably have done in similar circumstances. While it is unnecessary for the impartial trier of fact to conceive of faith healing as ‘reasonable’, it is an open question whether faith healers are sufficiently unreasonable to warrant serious criminal condemnation and possible incarceration when their course of action causes death. Is it justifiable to think of faith healers who cause death as criminally unreasonable? That is, do they depart markedly enough from the standard that criminal negligence is rightly attributed to them? Public attitudes toward religion, religious fundamentalism, and healthcare must be considered when trying to discern what a reasonable person does when treating an ailing child at risk of death. (shrink)

In an article in this journal, Christopher Cowley argues that we have ‘misunderstood the special nature of medicine, and have misunderstood the motivations of the conscientious objectors’. We have not. It is Cowley who has misunderstood the role of personal values in the profession of medicine. We argue that there should be better protections for patients from doctors' personal values and there should be more severe restrictions on the right to conscientious objection, particularly in relation to assisted dying. We (...) argue that eligible patients could be guaranteed access to medical services that are subject to conscientious objections by: removing a right to conscientious objection; selecting candidates into relevant medical specialities or general practice who do not have objections; demonopolizing the provision of these services away from the medical profession. (shrink)

This piece, included in the drift special issue of continent. , was created as one step in a thread of inquiry. While each of the contributions to drift stand on their own, the project was an attempt to follow a line of theoretical inquiry as it passed through time and the postal service(s) from October 2012 until May 2013. This issue hosts two threads: between space & place and between intention & attention . The editors recommend that to experience the (...) drifiting thought that attention be paid to the contributions as they entered into conversation one after another. This particular piece is from the BETWEEN SPACE & PLACE thread: April Vannini, Those Between the Common * Laura Dean & Jesse McClelland, Ballard: A Portrait of Placemaking * Amara Hark Weber, Crossroad * Isaac Linder & Berit Soli-Holt, The Call of the Wild: Terro(i)r Modulations * Ashley D. Hairston, Momma taught us to keep a clean house * Sean Smith, The Garage (Take One) * * * * Momma taught us to keep a clean house. Dust the wood furniture every two weeks. Clean the bathrooms once a week. Wipe down the baseboards once a season (Those damn baseboards. I still got bruises on my knees from scrubbing those things). Sweep away the cobwebs—and pray that those spiders are either dead or delirious (Livin in the country don’t mean you like bugs, especially the ones with too many legs ). Didn’t matter that the house was full of stuff: Great-Grandma’s heirloom dresser, that weird Mammy salt shaker and matching Uncle Tom pepper grinder (Where the hell did Momma get those P.O.S.’s?), the outdated drapes from Belks, Dad’s favorite wooden TV tray, and that uuuuugly love seat that some crazy uncle thought was a glorious find from the Salvation Army (Momma tried to make it pretty with some pillows, but no amount of love could help that seat). Spring Cleaning meant pullin all that furniture away from the walls and holdin your breath to see what time collected in the crevices. Then you gotta be careful not to breathe out too heavy cause the dust would go flying fore you got a chance to catch it. If you didn’t, you’d quickly find out if you’re allergic to dust. Quarter cup of lemon Lysol in a bucket of steaming water and an old wash rag. Maybe two. A dust towel and citrus-scent Pledge. Me and my brothers would fight over who cleaned what. Somehow the twins always got the easy stuff: vacuuming or moving dirt around with the feather-duster. Finishing in enough time to fly down the street on their bikes with the neighborhood kids. Older sister never got off that easy. Each of my stubby fingers morphed into plump, lemon-fresh golden raisins by the time that whole damn house was done. I would finish just in time to sit with Nadine on the porch, counting the seconds til the sun turned off and the fireflies fluttered on. The craziest thing: despite all that cleaning, the house still smelled like Momma’s cookin. That Old House. Might have been some of Grandma’s and Great-Grandma’s cookin mixed in there too. Pork chops. Ham hock soaked in collards. Pinto beans and mustard greens. Corn bread and my Auntie’s famous macaroni and cheese. Didn’t matter if the oven was cold and the valve of the gas stove had been shut for days. A stranger woulda thought someone’d been slavin away in that kitchen for a week straight. No Sweet Citrus & Zest Fabreze back then. Lysol would mask the odors for a little while. Not long enough to overpower the 50 years of goodness marinated in buttermilk, kneaded with lard, and fried in Crisco that’d been embedded in the wallpaper and window treatments. All that grime—dead skin, hair follicles, Carolina clay, carpet lint, yippee-little-dog fur—was evidence of life. We were a socially-awkward newly-minted teenager, two rowdy twin boys, a multi-tasking mother, and a road-warrior father. Eventually a strangely-feline Yorkie was added to the mix. And don’t forget about the stray distant relative stopping by unannounced. No corner of that damn house was unmarked. Hand-sewn pillows in the living room that we were forbidden to breathe on somehow had tiny burnt orange paw prints on them (sneaky little dog). It drove Momma crazy. And tore up my fingernails. They still won’t grow back right. Wipe all that shit off just for it to build up again. But that house was inherited and fully paid for. No reason to move. I did move. I was ready to move on. Move up. Move out. Over that small town. Into the big city. Here the streets take on the smells of Momma’s house. Plus piss, shit, and unbathed skin. A hot day means everything cooks and stews in its own juices, making the stench 10x more intense. The apartment is another story. 11 floors up. Big, east-facing windows. Great view of the skyline dotted with some green foliage. And the great lake. Immaculate. Odorless. Not even a trace of tobacco from the previous tenant’s bad habits. No lingering scent of lemon Lysol. No street stench seeping through the window panes. No stray cat hairs. Or dog fur. Not a speck of dust. Futon. Throw pillows. Photos. Knickknacks. Bowls of fresh citrus. Cursedly-assembled desk set from IKEA. Yet the void is too big to fill. Too clean. (shrink)

Professor Michael S. Moore, Charles R. Walgreen, Jr. Chair and Co-Director, Program in Law and Philosophy at the University of Illinois College of Law, delivered Duke Law's Annual Brainerd Currie Memorial Lecture entitled "The Elusive Quest for a Constitutional Right to Liberty." One of the country's most prominent authorities on the intersection of law and philosophy, he has published eight books and some 60 major articles, which have appeared in the country's top law reviews and peer reviewed journals in (...) philosophy and psychiatry. He is the author of Placing Blame, a General Theory of the Criminal Law, widely regarded as the leading modern statement of the retributivist theory of punishment and of that theory's systematic application to criminal law doctrine. In Act and Crime: The Philosophy of Action and its Implications for Criminal Law, Moore provided a unified theory of action that underlies English and American criminal jurisprudence. Professor Moore has presented more than 150 lectures and papers in law, jurisprudence, political theory, legal philosophy, political science and economics, philosophy, psychology, and psychiatry. Sponsored by the Office of the Dean. (shrink)

One of the great difficulties with Kant’s moral philosophy is that it seems to imply that our moral obligations leave us powerless in the face of evil. Kant’s theory sets a high ideal of conduct and tells us to live up to that ideal regardless of what other persons are doing. The results may be very bad. But Kant says that the law "remains in full force, because it commands categorically" (G, 438-39/57).* The most weI1—known example of...

This article refers to the issues associated with the crucial significance of the interpretation of tax law provisions made by administrative courts in the course of the judicial inspection of tax decisions, within the context of protecting the subjective rights of taxpayers. The analysis in that regard has been prepared based on the provisions of art. 153 of the Act of 25 July 2002 on Proceedings before Administrative Courts, which expresses the important rule of binding the court and the administrative (...) authority, whose act was the subject of an appeal, with a legal assessment and instructions regarding the further proceedings described in the decision of the administrative court. As a result of this rule, a decision of an administrative court exerts the results exceeding the scope of judicial administrative proceedings, while its effect also covers the future tax proceedings. If the legal assessment made by the court refers to the regulations that affect the subjective rights of a taxpayer, it means that the administrative court imposes the effects of “its” interpretation of those provisions on a tax authority. In turn, the tax authority is obliged to respect those rights in accordance with the opinions of the court, which usually affects the final resolution of a tax case. It should be borne in mind that a taxpayer, by submitting an appeal against a tax decision to an administrative court, demands not only an inspection of the acts of tax administration, but also - which should be emphasized - demands the execution of its rights, including its subjective rights. Therefore, we should not forget the crucial role of the administrative courts in the protection of the substantive rights of taxpayers. The instrument that allows the administrative courts to guard the subjective rights of taxpayers, consists in the procedural regulations included in the provisions on proceedings before administrative courts, and in particular art. 153 of the Act on Proceedings before Administrative Courts in Poland. (shrink)

This paper explores the question of whether there can be a right to secede from a liberal state by examining the concept of a liberal state and the different forms of liberalism that may be appealed to in order to justify secession. It argues that where the foundations of the state’s legitimacy are conceived in terms of a non-derivative right to self-determination, then secession from a liberal state may be a justified form of action for different types of (...) groups including ‘illiberal’ ones. If, however, a broader definition of political legitimacy is adopted – one that is predicated upon the liberal notions of individual moral autonomy and equality – then the right to independent statehood will generally not include a right to secede from a state that already upholds these principles. Consequently, liberal theorists of secession are forced to choose between particularizing a right of independent statehood to groups trapped in illiberal states, or acknowledging that the right to secede includes a right to establish an ‘illiberal’ state that bestows upon its citizens unequal rights and entitlements other than a right of exit. (shrink)

Reproduction is broadly recognised as fundamental to human flourishing. The presumptive priority of reproductive freedom forms the predominant position in the literature, translating in the non-sexual reproductive realm as an almost inviolable right to access assisted reproductive technology (ART). This position largely condemns refusal or restriction of ART by clinicians or the state as discriminatory. In this paper, I critically analyse the moral rights individuals assert in reproductive pursuit to explore whether reproductive rights entitle hopeful parents to ART. I (...) demonstrate that none of the protected actions performed, or entitlements generated are sui generis ‘reproductive’ rights, leading to the claim that there is no such thing as a right to reproduce. Under scrutiny, the reproductive right is a far narrower and weaker rights assertion than is recognised in the literature. I argue that the predominant position is grounded in a fundamental misunderstanding of the scope and strength of reproductive claims.I also highlight a significant conceptual inconsistency in the literature. On one hand, there is broad consensus that reproductive rights are predominantly negative, yet access to fertility treatment is framed as a component of the right. This wrongly contorts the negative nature of reproductive rights into a positive claim-right to ART. I conclude that this mistakenly frames ART access as sitting within the scope of reproductive freedom. I offer a revised conceptual paradigm of reproductive rights that has important clinical and policy implications for the provision and regulation of ART. (shrink)