Peter Strawson makes a crucial distinction between reactive attitudes and the objective attitude. Reactive attitudes such as gratefulness, anger and indignation imply that we take each other seriously as responsible agents. The objective attitude implies that we stop taking each other seriously. Strawson argues that the objective attitude is not merely psychologically difficult: it is inconceivable that we would systematically refrain from taking each other seriously and stop discussing with each other or blaming ourselves or others. Strawson, however, only discusses (...) the reactive attitudes from a general point of view. In this paper, we argue that the reactive attitudes of remorse and moral indignation are forms of ”symbolic restoration’. Retributive punishment should also be interpreted from this perspective. Consequently, our concern with moral blame cannot be understood independently from a concern with the harm that has occurred. Our attitude to the outcome determines our attitude to the agent. The concern with the mental state is secondary: it is structured by its place within the practice of symbolic restoration. (shrink)

This article offers arefutation of the corrective justiceinterpretation of tort law – the view that itis essentially a system of corrective justice. It introduces a distinction between primary andsecondary tort duties and claims that tort lawis best understood as the union of its primaryand secondary duties. It then advances twoindependent criticisms of the correctivejustice interpretation. The article firstargues that primary tort duties have nothingfundamentally to do with corrective justice andthat, if one understands what is meant by``primary tort duties,'' one (...) is compelledto regard this fact as a decisive objection tothe corrective justice interpretation. Second,it argues that, whatever relation thereis between secondary tort duties and correctivejustice, that relation also holds betweencorrective justice and secondary duties ofother legal branches. In sum, the concept ofcorrective justice is neither capable ofunifying tort law nor of demarcating it fromother legal branches.The article also offers a general alternativeinterpretation of tort law. Rather thanbeing essentially corrective, tort law isessentially protective. Under this picture, iftort law has a most important point, it is theprotection of legal subjects and valuablesocial interests from harm. This is theoverarching ambition that unifies primary andsecondary tort duties. It does not, however,demarcate tort law from other legal branches. (shrink)

Discussion concerning the meaning and analysis of “punishment” has centered, in large measure, on claims for a logical connection between “punishment” and “guilt.” However, more and more in the literature focus has shifted from guilt as the defining feature of “punishment” to guilt as only one of many constitutive conditions satisfaction of which is necessary for standard cases with allowance made for other correct, though secondary, uses of the term.

Despite numerous laws and religious tracts prohibiting homosexuality and the practise of same-sex activity in colonial North America, very few people were ever brought to trial – and even fewer found guilty – for engaging in such “unseemly practises.” Using both primary and secondary sources, this paper attempts to dissect the reasoning behind the relative lack of prosecutions of men thought to have participated in “sodomitical [sic] behaviour”. Issues of community, power, and religion as they related to sodomy will (...) be discussed. (shrink)

Kant’s account of moral feeling is continually disputed in the secondary literature. My goal is to focus on the Religion and make sense of moral feeling as it appears in this context. I argue that we can best understand moral feeling if we note its place in Kant’s concerns about the possibility of moral conversion. As Kant notes, if the new, morally upright man is of a different character than the man he used to be, then it remains unclear (...) how the new man can properly bear the debts of his old self. To address this issue, we need the presupposition that a person is both continually conscious of her empirical, bodily identity and capable of experiencing a felt recognition of the moral law; without this presupposition, I argue that fair punishment and the just payment of evil debts is impossible. (shrink)

: A distinctive nonconsequentialist argument for criminalisation and punishment claims that the citizens of a state that did not criminalise serious mala in se perpetrated in its jurisdiction would be complicit in their commission. However, one objection to such an argument is that such citizens cannot be complicit because they play no causal role in the commission of the offence. Against this objection, I argue that causal contribution is unnecessary, and that one way in which a secondary agent (...) can become complicit in a principal’s wrongdoing is if they allow that wrongdoing to be carried out in a domain over which they have authority, and with their permission. As a result of giving permission, the agent shares in the principal’s blameworthiness. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Philosophy, Psychiatry, & Psychology 10.2 (2003) 185-187 [Access article in PDF] Measuring Moral Identities:Psychopaths and Responsibility Gwen Adshead Doctor Ciocchetti examines the responsibility of psychopaths as a function of psychological capacities operating within relationships. He then argues against the punishment of psychopaths. I have some sympathy with both views, but perhaps argued in different ways, and from different standpoints, based on my clinical experience.Doctor Ciocchetti's offers an unusual (...) account of responsibility as a concept that involves at least two people, and perhaps many more than two; and this I would entirely support. In this sense, responsibility is a transitive and dynamic process that involves not only the personal sense of ownership of an action or thought, but also the attribution of responsibility by others. Moral, when applied to intentions, seems to me to suggest that they are intentions that involve another person and that they are held by an active agent who can make choices about those intentions. Responsibility implies not only causal responsibility, but also that the actor owns his own intentions about his behaviors toward others.Responsibility, either as experienced by the actor or attributed by others, is a type of moral judgment; an exercise in moral reasoning. Following Gilligan (1987), I am persuaded that moral reasoning, or the discourse of ought-and-should is relational in nature and must be seen in the context of relationships. I think much of the early work on moral reasoning in offenders is flawed because it assumes that moral reasoning was a capacity like serum bilirubin: normally distributed out there in the population, and able to be measured by an objective observer, in a process independent of the findings. Unsurprisingly, these studies found either that offenders had immature moral reasoning capacities (which we might have guessed already), or they had normal moral reasoning capacity, which was disturbing and puzzling.What we want to understand is how people come to let themselves do horrible things to others. Cioccchetti argues that psychopaths can do these things because they lack the affective capacities needed to respond to others' distress. Ordinary people care about harm to others (including the physical self/body and sentient animals) and demand explanations for the deliberate infliction of suffering on others. It is not only the lack of participant attitudes in the psychopath that bother us; it is our own responses, expressive of our participant attitudes, that tell us something about what this person is, and what is wrong. In my view, this is what punishment is all about for us, the larger social group [End Page 185] forced to respond to the distressing and disturbing actions of others.As Ciocchetti suggests, it is the perceived guilt of the offender that justifies the punishment; it is also the experienced distress of those affected that drives the need for punishment. The distress is part of the relationship between the victim and the offender; the victim is often just as active as the offender.The issue becomes most clear in relation to capital punishment and its supporters, especially those who wish not only to view executions, but also to broadcast them. In considering this, there are two useful sources of information: first, studies of the reactions of those who witness executions, and second, studies of the impact of murder on those related to the murder victim, so-called secondary victims. In those states that have capital punishment in the United States, it is often the secondary victims who witness the execution. They often have testified to the appalling impact of the offender's crime on them; most states give them a right to be present at the execution, even if they do not exercise it. It is hard not to think that it is the enormity of the feelings caused by the offender's wrongdoing that the death sentence is designed to address; the death of the offender changes the relationship between victim and offender, as much as the death of the original victim changes the relationship with their relatives. One might then wonder about the impact of his or her execution on the relatives... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Journal of the History of Philosophy 39.2 (2001) 304-305 [Access article in PDF] Wildfeuer, Armin G. Praktische Vernunft und System. Entwicklungsgeschichtliche Untersuchungen zur ursprünglichen Kant-Rezeption Johann Gottlieb Fichtes. Stuttgart-Bad/Cannstatt : Frommann-Holzboog, 1999. Pp. 596. Cloth, DM 168. The subtitle of this book, a slightly revised dissertation from the University of Bonn (1994), reads: "Investigations into the developmental history of Johann Gottlieb Fichte's original reception of Kant." The work comes (...) to almost 600 pages. The main text is heavily overlaid with detailed footnotes, extensive quotations and supplementary material in smaller print and narrow line spacing. To the reader who is patient enough to face this scholastic mode of presentation, there emerges behind it a valuable contribution to our overall understanding of Fichte's philosophical work in general and its core discipline, the Wissenschaftslehre or first, transcendental philosophy, in particular.In the grand narrative about the development of German idealism Fichte is placed between Kant and Schelling. More precisely, he is typically portrayed as continuing but also revising Kant's work under the double influence of the leading early post-Kantian, Karl Leonhard Reinhold (1758-1823), and the skeptical anti-Kantian and anti-Reinholdian, Gottlob Ernst Schulze (1761-1833), called "Aenesidemus" after the title of his anonymous main work.Wildfeuer's investigations supplement this picture with a detailed consideration of what could be called "Fichte before Fichte": the early development of Fichte's thought, prior to his encounter with Reinhold and prior even to his encounter with Kant (1790). To be sure, Wildfeuer also deals with Fichte's continued philosophical development up through 1794, and he has many interesting things to say about the lasting presence of Fichte's earliest concerns in his more mature work. But the chief merit of the book is the sustained attention it pays to the very beginnings of Fichte's thought.Much of the prehistory of Fichtean philosophy has to be conjectured, given the scarcity of documents about Fichte's years of study (1780-84) and of his work as itinerant tutor (1785-1793). From Fichte's own testimony in his correspondence it is clear that prior to encountering Kant's three Critiques he held a determinist position regarding nature as well as human conduct. Based on some indications in Fichte's later works, Wildfeuer identifies as the chief source of Fichte's determinism the work of Karl Ferdinand Hommel (1722-1781), a professor of law at Leipzig, whom Fichte could have heard as a student and whose pseudonymous treatise Alexander von Joch... On Reward and Punishment According to Turkish Laws (1770) Fichte cites. Hommel (alias von Joch) maintains a deterministic view of human action, while justifying the social practice of punishment and reward. In particular, he maintains the dependence of the will on the intellect and of the latter on sensations or sensory impressions. Wildfeuer refers to this position, as it was temporarily adopted by Fichte, as that of the primacy of the understanding over the will.But Wildfeuer also shows that from early on Fichte's determinist leanings in speculation were counterbalanced by the conviction that feeling, especially feeling in religious matters, is an equally valid source of truth. For Wildfeuer, this early duality of speculation and feeling is the lasting basis of Fichte's life-long concern with reconciling the competing demands of head and heart. In particular this pre-Kantian key concern [End Page 304] in Fichte informs the latter's central systematic occupation with the unity of the mind amidst its differentiation into faculties or kinds of mental activity.Further texts which Wildfeuer examines in pursuit of the pre-Kantian Fichte are his Latin Valedictory Address, given upon graduating from one of Germany's finest secondary schools at the time, the Princely College of Pforta (1780), and the "Aphorisms on Religion and Deism" (1790).On the basis of this material Wildfeuer goes on to reconstruct the distinct reception that each of Kant's three Critiques received by Fichte. According to Wildfeuer, the Critique of Pure Reason originally was read by... (shrink)

In lieu of an abstract, here is a brief excerpt of the content:The Paradox of Education:A ConversationHumberto R. Maturana and Bernhard PoerksenResponsibility of the TeacherPoerksen: Immanuel Kant writes in his essay Über Pädagogik that the wide field of education is governed by a fundamental paradox. On the one hand, we want free and self-determined individuals to leave our schools; on the other, we impose a syllabus on the future individuals, force them to attend schools, punish their failures, and persecute their (...) noncompliance. There is, if we follow Kant, an inescapable relationship of tension between the goals and the means of educational efforts: They contradict each other. Would you agree?Maturana: No. Education, the commentary of an observer, is the process of transformation resulting from the co-existence with adults. We become the adults we have been living with. This means: If freedom and self-determined thinking are the goals of educational activity, then we have to live together in a way that is supported by the mutual respect for the autonomy of the other. In my view, the paradox formulated by Kant does not exist at all. The way of life, the manner of living together, shapes and transforms people. If you want to teach autonomy and reflection, you cannot use force as a method but must create an open space for communal reflection and action. There must be no contradiction between goals and means.Poerksen: Surely, there must also be constraints? It must be laid down when everybody has to be present, what the task is, who the teacher is, who has authority.Maturana: Compulsion will emerge if the teachers do not succeed in presenting their material in a thrilling way and in making school an attractive place of being together. Their failure will lead to force.Poerksen: The teacher is totally responsible for everything that may happen in school. Is this not an exaggerated claim?Maturana: No. If a teacher behaves respectfully, if he does not intimidate his pupils, if he listens, encourages cooperation and reflection, then a special form of interaction will emerge. The way of living practiced by the teacher, including the goals of teaching, will be the source of profitable learning for the pupils. This also implies that three questions and tasks must be sorted out cooperatively in education. First it seems necessary to me to debate the educational ideal to be chosen—what should the future adults be like when leaving the school one day? Should they be democratically minded and responsibly acting citizens? Or are they to be authoritarian and commandeering hierarchs, lords who feel superior to everyone else? It is then necessary to anchor a way of life in the school that permits acting and thinking according to that ideal. Finally, there is the essential task of preparing the teachers for their job in such a [End Page 25] way as to do justice to the desired goals—to enable them to live what they have to achieve.Poerksen: This would mean that teaching has nothing to do with the stepwise elimination of ignorance, as is commonly thought. The transmission of knowledge is secondary. The primary requirement is a way of life that corresponds with one's ideals, a particular form of living together, out of which the material topics will arise in due course.Maturana: Exactly. The children do not learn mathematics in school; they learn how to live together with a mathematics teacher. Perhaps they will one day carry on this enjoyable and exciting kind of being together independently—and become mathematics teachers or mathematicians themselves. Teachers do not simply transmit some content; they acquaint their pupils with a way of living. In the process, the rules of arithmetic, the laws of physics, or the grammar of a language will be acquired. My claim is: Pupils learn teachers.Poerksen: What about children who systematically refuse to cooperate? What is to be done with them? The classical answer is, of course: bad marks, relegation, exclusion from the winning circles.Maturana: The so-called difficult children about whom teachers keep complaining often only struggle to be seen and accepted, while the whole world expects them to behave in a calculable manner and to adapt to strange demands. Asking... (shrink)

The classical formulations given to the problem of free will and determinism in analytical philosophy can be split into two groups according to a double function of the element : „to be able to act otherwise”. In the first case we speak of „the problem of autonomy” and in the second of „the problem of justifying punishment”. Both formulations are inadequate. „The problem of autonomy” is wrongly formulated, since determinism does not threaten our possibilities. „The problem of justifying (...) class='Hi'>punishment” is likewise a wrong formulation, since the question of „being able to act otherwise” merely has a secondary role in the attribution of guilt. Nevertheless certain elements can be found in both formulations to provide us with a new formulation and it is in this direction that we should like to move. (shrink)

The aim of this paper will be to try and show why there could not be any acceptable counter-stipulation-example to this analytic truth. The overall strategy will be to articulate the conceptual centrality of this analytic truth by showing that a change in it will cause absurdities to break out in certain neighboring concepts with which the concept of cause has logical liaisons, such as action, possibility, intention, deliberation, memory, responsibility, and punishment: and when we try to protect ourselves (...) from these absurdities by altering these latter concepts as well, we will have twisted our concept of causality, along with these other concepts, out of recognition. In other words, it will be argued that to give up this analytic truth will require such a drastic overhauling of the basic concepts of our conceptual system that they will not be a recognizable analog of their former self. Obviously, I cannot give any precise criterion for just when an altered concept ceases to be a permissible analog of its former self. While there is room for disagreement about these matters, we can reach agreement upon the logical connections between the concept of causality and these other neighboring concepts, so that we can determine what changes must be made in the latter so as to accommodate a change in the former. Whether we then wish to say that these changes are so extensive that these concepts are not permissible analogs of their former selves is of secondary importance. However, I do believe that it can be shown that the extended concept of causality which permits a cause to be later than its effect requires such a drastic change in neighboring concepts that there will be little room for disagreement as to whether it is a legitimate analog to the original concept of causality. (shrink)

Evolutionary analysis suggests that policies based on deterrence may cope effectively with primary sociopathy if the threat of punishment fits the crime in the cost/benefit calculus of the sociopath, not that of the public. On the other hand, policies designed to offset serious disadvantage in social competition may help inhibit the development of secondary sociopathy, rather than deter its expression.

Using the exemplary case of 19th-century American state penitentiaries, the authors explore penitentiary control from the perspective of sensing agents who navigate a controlled sensory ecology – the prison, as structured by institutional rules, differential power relations, and architectural plans. Moving beyond Foucault’s Discipline and Punish and Goffman’s Asylums, they stress a pragmatist approach to understanding human sensing and explain inmates’ creativity under constraints. Employing wardens’ disciplinary journals and other secondary reports, the article emphasizes three theoretical issues that explain (...) why Panoptical prisons’ attempts to control sense experiences can sometimes fail: architectural designs that inadequately negotiate the contradictory demands of visual and acoustic control; inmates’ active mobilization of perceptible objects as means of resistance; and power differences between prison authorities and inmates that prevent actors from sharing a common sensory field. The authors’ overarching goal is to advance, via pragmatism, a sensory analysis of institutional control. (shrink)

People often use indirect speech, for example, when trying to bribe a police officer by asking whether there might be “a way to take care of things without all the paperwork.” Recent game theoretic accounts suggest that a speaker uses indirect speech to reduce public accountability for socially risky behaviors. The present studies examine a secondary function of indirect speech use: increasing the perceived moral permissibility of an action. Participants report that indirect speech is associated with reduced accountability for (...) unethical behavior, as well as increased moral permissibility and increased likelihood of unethical behavior. Importantly, moral permissibility was a stronger mediator of the effect of indirect speech on likelihood of action, for judgments of one's own versus others' unethical action. In sum, the motorist who bribes the police officer with winks and nudges may not only avoid public punishment but also maintain the sense that his actions are morally permissible. (shrink)

The purpose of this essay is to critically appraise J. Angelo Corlett's recent interpretation of Kant's theory of punishment as well as his rejection of Hegel's penology. In taking Kant to be a retributivist at a primary level and a proponent of deterrence at a secondary level, I believe Corlett has inappropriately wed together Kant's distinction between moral and positive law. Moreover, his support of Kant on these grounds is misguided as it is instead Hegel who holds such (...) a distinction. Finally, I attempt to refute the almost timeless retributivist rejection of deterrence-based theories of punishment on the grounds that the latter somehow would condone in some cases the punishment of innocent persons. These individuals almost always demand that no innocent person be punished as a rule of the highest order. (shrink)

A systematic introduction into the mimetic theory of the French-American literary theorist and philosophical anthropologist René Girard, this essential text explains its three main pillars with the help of examples from literature and philosophy. This book also offers an overview of René Girard’s life and work, showing how much mimetic theory results from existential and spiritual insights into one’s own mimetic entanglements. Furthermore it examines the broader implications of Girard’s theories, from the mimetic aspect of sovereignty and wars to the (...) relationship between the scapegoat mechanism and the question of capital punishment. Mimetic theory is placed within the context of current cultural and political debates like the relationship between religion and modernity, terrorism, the death penalty, and gender issues. Drawing textual examples from European literature and philosophy, Palaver uses mimetic theory to explore the themes they present. A highly accessible book, this text is complemented by bibliographical references to Girard’s widespread work and secondary literature on mimetic theory and its applications, comprising a valuable bibliographical archive that provides the reader with an overview of the development and discussion of mimetic theory until the present day. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:REPENTING OF RETRIBUTIONISM Britton W. Johnston Westminster Presbyterian Church, Santa Fe Retributionism refers to the universal common-sense beliefthat the wicked will suffer and the righteous will receive reward. "Theodicy" is the problem ofthejustification ofGod in the light ofthe fact that retributionism is not borne out by our experience. These two concepts have so scandalized the church that theologians can think oflittle else; and as with most true scandals, we (...) have been unable to resolve them, in spite ofour best efforts. Yet, also as with most true scandals, the solution to the problems they present lies in simply choosing not to be scandalized. It is entirely reasonable and faithful to abandon our retributionism. In so doing, we find that the scandals ofretribution and theodicy simply evaporate, and new horizons for theological exploration suddenly open up for us. Happy are those who do not follow the advice ofthe wicked, or take the path that sinners tread, or sit in the seat of scoffers; but their delight is in the law ofthe Lord, and on his law they meditate day and night. They are like trees planted by streams ofwater, which yield their fruit in its season, and their leaves do not wither. In all that they do, they prosper. The wicked are not so, but are like chaffthat the wind drives away. Therefore the wicked will not stand in the judgment, nor sinners in the congregation ofthe righteous, but the way ofthe wicked will perish. (Ps 1,1-6) 162Britton W. Johnston We read these opening words ofthe psalter with a mixture ofcomfort and scandal. We are comforted to read these assurances that there is order to the cosmos God has created; but we are scandalized by the nagging awareness that our experience contradicts the psalmist's claims. In fact, the psalter itself reflects this awareness: "....Such are the wicked; always at ease, they increase in riches" (Ps 73,12). The biblical wisdom tradition, as it matured over time, reflected a growing awareness and a deepening disturbance over the breakdown of retribution. Since God is the obvious enforcer of retribution, the failure of retribution becomes an indictment against God: "Oh, that I had one to hear me! (Here is my signature! Let the Almighty answer me!)" (Job 31,35). This never-quite explicit indictment against God gives rise to the classic problem of the justification of God, also known as the "theodicy problem." It consists ofthree incompatible affirmations: 1.God is righteous (conforms to retribution and is committed to maintaining it); 2.God is powerful (powerful enough to enforce retribution); 3.Injustice exists in creation. Any two of these claims can coexist, but it is logically impossible to maintain all three claims at once. The trouble of course, is that we are committed by faith (our faith in retribution that is) to the first two points; and our experience requires us to acknowledge the third. Therein lies a scandal. All the strategies to resolve the scandal of theodicy are based on attempts to weaken one or more ofthe three affirmations. Strategy one: Relativize our experience of injustice There are basically three versions of this idea. First ofcourse is the claim that in the afterlife there will be punishment for the wicked and reward for the righteous. This approach discounts our lived experience as secondary to a postulated retribution that is beyond our experience. The (second) Eastern version ofthis is reincarnation, the notion that retribution is fulfilled by the working out ofkarma in the cycle of rebirth. Ifyou're bad in this life, you'll be reborn as a goat or something; ifyou're good, you'll get to be a yogi. Third, there is the apocalyptic view that there will be a break in time, Repenting ofRetributionism163 or a future time, when retribution will be fulfilled, but the present time is merely preparation for that day. The trouble, ofcourse, with attempting to relativize our experience is that experience keeps intruding. We see how postulates ofafterlife, or the next life, or the apocalypse, are used to excuse murder. Krishna does it directly; in the Baghavad-Gita, he explicitly instructs Arjuna to kill the Kauravas, assuring him that they'll be reborn to... (shrink)

The present research examined the connections between temperament, students’ domain- and course-specific motivational appraisals, and performance, in two studies. Study 1 explored the relationships between temperamental sensitivities, motivational appraisals, and task achievement among secondary students in the domain of mathematics, using Exploratory Structural Equation Modeling for the analyses. Study 2 was conducted longitudinally among upper-secondary students during a course in four key school subjects. Subject interest was included alongside the temperamental sensitivities as a predictor of course-specific motivation and (...) course grades, and the data were analysed with Partial Least Squares Structural Equation Modeling. Previous achievement was controlled in both studies. The findings showed temperamental sensitivities to be differentially linked with motivational appraisals. Punishment sensitivity in Study 1, and interindividual reward sensitivity in Study 2 were found to have an effect on psychological strain. In both studies, interest and effort were predicted by intraindividual reward sensitivity. In Study 2, subject interest was a consistent predictor of higher course interest and lower strain. In both studies, connections were found between strain and lower performance. The findings suggest individual characteristics may predispose students to certain motivational experiences, and contribute to educational outcomes, in both domain and course contexts and across subject content. (shrink)

While there are many significant ethical questions which can deliver the lessons of an introductory ethics course (e.g. global warming, world hunger, genetic engineering), students do not face these moral difficulties directly in their lives. The author argues that commonly-faced ethical questions are more effective for rendering the content of introductory ethics immediately relevant to students. This paper presents a general outline of an introductory ethics course structured around the theme of drunk driving. Not only is drunk driving something that (...) college students are confronted with consistently, but the topic lends itself to discussions of moral subjectivism and moral skepticism, various moral theories’ framings of the problem, the assignment of culpability and conditions which mitigate it, secondary responsibility, intoxication and agency, punishment, deterrents, contrition, and forgiveness. The author details each of these discussions and concludes by considering further benefits of teaching a course built around this theme. (shrink)

The publication of Michel Foucault’s lectures at the Collège de France in the late 1970s has provided new insight into crucial developments in his late work, including the return to an analysis of the state and the introduction of biopolitics as a central theme. According to one dominant interpretation, these shifts did not entail a fundamental methodological break; the approach Foucault developed in his work on knowledge/power was simply applied to new objects. The present article argues that this reading — (...) which is colored by the overwhelming privilege afforded to Discipline and Punish in secondary literature — obscures an important modification in Foucault’s method and diagnostic style that occurred between the introduction of biopolitics in 1976 (in Society Must Be Defended) and the lectures of 1978 ( Security, Territory, Population) and 1979 ( Birth of Biopolitics). Foucault’s initial analysis of biopolitics was couched in surprisingly epochal and totalizing claims about the characteristic forms of power in modernity. The later lectures, by contrast, suggest what I propose to call a ‘topological’ analysis that examines the ‘patterns of correlation’ in which heterogeneous elements — techniques, material forms, institutional structures and technologies of power — are configured, as well as the redeployments through which these patterns are transformed. I also indicate how attention to the topological dimension of Foucault’s analysis might change our understanding of key themes in his late work: biopolitics, the analysis of thinking, and the concept of governmentality. (shrink)

What is Mill's principle of liberty? The question may seem superfluous, since he gave his own apparently careful formulation (223/34-224/10).[Note 1] However he gave several formulations in different terms, and his principle has been interpreted in a number of ways.[Note 2] The Acts meant to be subject to social control have been said variously to be other-regarding acts, acts which harm others, or affect them, or affect their interests, or violate duties owed to them, or violate their rights. These formulae (...) are not equivalent. An act may harm others (indirectly), yet not be other-regarding; an other-regarding act may harm others without any violation of duty; an act may violate a duty to others without violating anyone's right. But it seems to me clear enough, if all Mill's statements are taken together, that the correct formulation is this: punishment is justified only for violations of secondary rules prescribing duties to others. Duty and Liberty divide the whole field of human conduct, without overlap; and there are no duties besides duties to others. (shrink)

Cet article s’intéresse au problème de la maintenance, c’est-à-dire au moment où les membres d’un collectif social tentent d’assurer dans le temps l’existence de leur collectif en instituant des règles pour réguler leurs comportements. Ce problème se pose avec acuité lorsque certains membres ne respectent pas ces règles communes. Pour maintenir la coopération sociale, les membres peuvent décider d’instituer des règles secondaires visant à sanctionner les transgressions des règles primaires déjà établies. La maintenance d’un collectif peut ainsi reposer sur l’émergence (...) de pouvoirs déontiques qui donnent aux membres l’autorité de légitimement punir et expulser les transgresseurs. Mais d’où viennent ces règles ? On peut penser qu’elles émergent des émotions éprouvées par les membres envers les transgresseurs. Je le démontre à l’aide d’une étude de cas qui établit que, dans le collectif Occupy Geneva, l’institutionnalisation de normes pour punir, exclure et réintégrer les déviants s’ancraient respectivement dans l’indignation, le mépris et le pardon. -/- This article focuses on the problem of maintenance; that is the moment when the members of a social collective attempt to ensure the existence of their collective over time by instituting rules to regulate their behavior. This problem becomes critical when certain members do not respect the common rules. To maintain social cooperation, members can decide to institute secondary rules aimed at sanctioning the transgressions of the already established primary rules. The maintenance of a collective can thus rely on the emergence of deontic powers that give members the authority to legitimately punish and expel transgressors. But where do these rules come from? The hypothesis is that they emerge from the emotions felt by the members towards the transgressors. I show this with the help of a case study, which establishes that the institutionalization of norms allowing the punishment, the exclusion, and the reintegration of deviants within the “Occupy Geneva” collective, was grounded in indignation, contempt, and forgiveness respectively. (shrink)

This article discusses the issue of arrangement /ordering of compulsory-comprehensive maqāsid. In this respect, the main purpose is to help clarify the ordering problem. To accomplish this task, the classical and contemporary studies on this subject were reviewed. Within the scope of this research, it has been determined that the universal principles are generally listed in the order of religion, nafs, mind, generation and property. However, alternative orderings can be found where the nafs is placed at the forefront. The focal (...) point of the ordering problem is emerges from the question of whether Allah's rights/otherworldly maqāsid should be priorities or servants' rights/worldly maqāsid. The conflict between religion, which is an otherworldly value, and other principles played an active role in this classification of maqāsid. Many legal scholars who placed religion in the first place in the classical period did not clearly explained the justification of their arrangement. Also, many of today's researchers also stated that religion should come first. The scholars who put both the religion and the nafs in the center have listed many evidence for their preference. The legal scholars who put religion at the center have pointed the verse " I have not created the jinn and men but they may worship Me" as the basis for their views. Accordingly, the main purpose of the creation of human being is to serve Allah. Because the most important right to be fulfilled is the right of Allah religion should take precedence over other virtues in maqasid. Religion is also the only essential way that leads to eternal happiness. According to the legal scholars who put religion into the center, other maqasid principles are secondary. Correlatively, other principles serve religion. The hadith "The debt to Allah is more worthy of being paid." has been made the basis. Since religion constitutes the essence of the maqāsid, it is also a requirement of reason to make religion essential. According to another reason they stated, the obligation of jihad also ensures that religion is at the center. The obligation of jihad causes lives to be sacrificed to protect the religion. This means that religion is superior to the nafs and other principles. Because jihad, which is the order of religion, is fard. The scholars who maintain that the rights of the servants should take precedence over the right of Allah have cited also a lot of evidence. We come across with their views presented as a weak view in the sources or as an answer to a possible question. There is no clear information about to whom these views belong. Therefore, it is stated that no one introduces the nafs to religion. As a matter of fact, it is stated that it is not correct to qualify these views as an independent view defended by scholars. In other words, the view putting the nafs at the center and the evidence to this preference at this point should be regarded as hypothetical. We are of the view that these claims of contemporary writers need to be proven. The basic reason of the views that puts the nafs in the center is based on the pre-acceptance that maslahahs like the nafs are the right of servants while religion is the right of Allah. The given reasons can be addressed under three main headings: punishments, mitigation of prayers, and concern with non-Muslims. In case where the rights of the servant and Allah unite, the rights of the servant should be preferred. Because, the rights of servants are on hardship, and the rights of Allah are on breadth and mercy. On the contrary to the rights of the servants, postponing or neglecting the right of Allah will not harm Allah. It is clear that if the rights of the servants face postponement, they will suffer serious damage. The fact that killing a man who both abandoned his religion and killed someone unfairly, not for his departure from religion, but for retaliation, that is, the right of a servant, is a concrete example of this. The shortening of the prayer during the journey, the patient’s abandoning standing in prayer and the fasting, and other examples also require the human to be in the center. Today, there are researchers who take the nafs to the center. The existence of religion for humans and society reflects the view of these researchers. Because it is clear that religion will remain dysfunctional where there is no human and society. When these evidences are examined carefully, it can be concluded that the opinion that defends the nafs to be at the center of comprehensive maqāsid is preferable. (shrink)

This chapter contains sections titled: Purgatory in a Nutshell The Journey Continues Ante‐Purgatory: Late Repentants Gate of Purgatory The First Three Terraces: Misdirected Love The Fourth Terrace: Deficient Love of the Good The Final Three Terraces: Excessive Love of Secondary Goods Dante's Existential Lessons in Purgatory.

The goal of this paper is to sketch an account of Kant’s signature metaphysical doctrine (transcendental idealism) that (a) has no supporters – as far as I am aware – in the contemporary literature, and (b) draws its primary motivation (as interpretation) from considerations regarding our practical situation and needs as agents. -/- The consideration I focus on here is that people not only have mental and moral features, but they also appear to us – in our daily experience – (...) to have such features: “[w]e can perceive virtue in our experience (Wir können in der Erfahrung wohl Tugend wahrnehmen)” (24: 906). The same presumably goes for vice: When I see you casually torturing a cat, you appear to me to be brown-haired, wearing jeans, moving your arms, laughing, and so on, but you also appear to me to be vicious and cruel. Your character shines through in your actions. I can then make a defeasible inference from those appearances to the moral reality. -/- Such appearances and inferences play a central role in our practices of praise, blame, forgiveness, and punishment. An interpretation of transcendental idealism that gives primacy to the practical will thus seek to analyze the concepts of experience, acquaintance, and appearance/phenomenon in a capacious-enough way that they can apply to mental and moral features too. If successful, such an interpretation would have a clear practical advantage over those that leave us merely conjecturing from experiences of bodies, gestures, and secondary qualities to moral features that do not appear, or even to the non-appearing features of a distinct set of things. (shrink)

Reactive theories of responsibility see moral accountability as grounded on the capacity for feeling reactive-attitudes. I respond to a recent argument gaining ground in this tradition that excludes psychopaths from accountability. The argument relies on what Paul Russell has called the 'subjectivity requirement'. On this view, the capacity to feel and direct reactive-attitudes at oneself is a necessary condition for responsibility. I argue that even if moral attitudes like guilt are impossible for psychopaths to deploy, that psychopaths, especially the "successful" (...) and "secondary" subtypes of psychopathy, can satisfy the subjectivity requirement with regard to shame. I appeal to evidence that embarrassment and shame are grounded on the same affective process and data that psychopathic judgments about embarrassment are neurotypical. If I am right, then psychopaths ought to be open to shame-based forms of accountability including shame punishments. I conclude by considering why psychopaths rarely self-report shame. I argue that lacking a capacity to see oneself as flawed is a different sort of failure than lacking the capacity to feel. (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)

The title is unashamedly plagiarized from Stephen Todd's excellent book, The Shape of Athenian Law. The plagiarism is slightly misleading, however, since my interest is in law as enactment while Todd's title expresses his interest in law as system . The issue I wish to address is the formulation of written laws in Athens during the late archaic and classical period, specifically the balance between procedural and substantive law. Substantive law deals with rights, obligations, offences, etc. Its role is to (...) define behaviour which is required, allowed, or prohibited. These are what Hart terms ‘primary rules’. Procedural law, on the other hand, deals, as the name suggests, with the administration of justice, that is with jurisdiction, process, etc. Hart's term for these is ‘secondary rules’. The two cannot be separated quite as neatly as I have suggested, of course. A procedural law can scarcely avoid mentioning the offences or rights whose punishment or protection it regulates, while a substantive law may need to address issues such as jurisdiction. This is therefore an issue of orientation, not a simple binary division. However, as a broad basis for classification it is of value. (shrink)

For too long, criminal law scholars overlooked immigration-based offences. Claims that these offences are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. My purpose in this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences (...) are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they license excessive imposition of pain. (shrink)

In the chapter "Of Identity and Diversity" of An Essay Concerning Human Understanding, Locke claims that justice is based on personal identity and that personal identity is based on consciousness. However, this view of justice leads to an impasse when the defendant alleges that he has no consciousness of the crime and, therefore, that he does not identify himself as the person who committed the crime: if it is not possible to determine that he is the one who committed the (...) crime, can we say that the punishment is just? This article seeks (i) to analyse the impasse exploring (a) its conceptual framework and (b) its development in the letters Molyneux and Locke exchanged in order (ii) to elaborate a criticism of Locke’s answer to it. Compared to the secondary bibliography, in which one objection to Locke’s answer is well established, the originality of this article consists in elaborating a new objection based on the distinction between the first and third person perspectives and in showing that, when questioned by Molyneux, Locke failed to discuss the conceptual issue necessary to give an adequate answer to the impasse. Keywords: Locke, Molyneux, personal identity, justice. (shrink)

This paper aims to show that the notion of moral progress makes sense in Hume’s philosophy. And even though Hume suggests that this question is not central, in showing why it is not the case, I will conclude that, in concentrating on the question of the progress of civilisation, Hume was expressing a view on moral progress. To support this claim, I will begin by defending the claim that the notion of moral progress itself is consistent within Hume’s philosophical principles. (...) In brief, I will suggest that according to Hume, there are at least four ways in which an agent's morality can be modified: by a change of belief, by a will to change his own moral characteristics, by the government setting up rewards and punishment and by the progress of civilisation. The key to the problem will be to distinguish between the natural principles which direct human nature and the social nature of human beings, the first one being immutable, and the second being malleable. Drawing this distinction will allow us to reconcile the highly problematic notions of uniformity and diversity within human nature. Then, in correlation with the distinction between moral maxims and moral behaviour, I will suggest that both are subjects to improvement, even though the room left for the latter is greater. After having argued that the notion of moral progress makes sense, I will try to understand the role it plays in the Humean conception of the progress of civilisation. This will lead me to conclude that its conditions and its different states of development are for Hume intrinsically related to the progress of the civilisation in general. Furthermore, moral progress is secondary and relative to the general improvement of society. The morals of the people has no active role in its progress, contrary to politics, economics, sciences and arts which are the main causes of the gradual progress of improvement. Therefore, against Montesquieu, Hume considers the progress of “manners” and “customs” (i.e. moral behaviour or the moral worth of behaviour) as a consequence of the progress of civilisation, and not as its cause. Hume’s principal aim is to underline the process of civilisation, and to show the means by which it spreads though all the spheres of society. (shrink)

In six chapters of uneven length, Peter Lewis Allen, a former literature professor and public policy activist, offers a highly readable romp through two millennia of beliefs and attitudes regarding sin, sex, and disease. In particular, Allen draws on religious, medical, and popular literature from different eras in order to exemplify how particular “diseases”—lovesickness, leprosy, syphilis, bubonic plague, and masturbation—were causally connected with thoughts of punishment for sinful behavior. He then extends this theme into a lengthy chapter describing how (...) the same belief contributed to the chasm between conservative and activist perspectives on AIDS in the United States over the past two decades.Allen, who is admittedly not a historian, picks and chooses a “series of portraits of disease,” offering little contextualization as he creates a “tableau” of perspectives drawn from European and American discourse throughout Christianity. He flavors his chronological narrative with personal experiences drawn from his work in gay health groups. The most significant personal experiences he intersperses stem from thoughts about his one‐time lover, now dead from complications associated with AIDS. He interjects key episodes from this relationship into the book to affirm that “in its fight about how to respond to AIDS,” American society has reenacted a “drama that had been written centuries before” .Allen's engaging writing stands much more firmly as chronologically arranged comparative literature than as historical scholarship. His greatest historiographical faux pas lies in his anachronistic writing about disease. For example, he introduces his chapter on medieval leprosy with a description of the pathological destruction caused by the leprosy bacterium. Then, in selecting situations drawn from Herodotus through the sixteenth‐century “contagionist” Girolamo Fracastoro, he erroneously assumes that “leprosy” implied a singular, consistent disorder throughout this long period. Similar concerns arise regarding his coverage of syphilis. Such errors may have originated from his drawing too exclusively from pre‐1990 historical writings. Works like Charles E. Rosenberg and Janet Golden's Framing Disease: Studies in Cultural History and Linda Merian's edited volume The Secret Malady: Venereal Disease in Eighteenth‐Century Britain and France , and the voluminous literature on the history of the body, would have provided contextual concepts within which to place more concrete views about the intersections between diseases and culture. The author's desire to flash forward from particular historical periods to AIDS in our society too often leads to weakly substantiated connections between time periods.Allen's strengths lie in his ability to draw on works of literature, especially popular literature. His particular emphasis on French works reflects his own background in medieval French literature. His arguments are also strong when comparing church and society in the medieval period. For example, his chapter on lovesickness clearly delineates the persistent position of the Church Fathers against medics who regularly prescribed a “coital cure” for the disorder, without specifying what partners to select, instead of welcoming disease as a divine corrective.Allen's writing on plague, the shortest chapter of the book, clearly depicts the once‐common view that this epidemic disaster was inflicted by God as a punishment for mankind's sinful nature. However, the omission of any discussion of sex in a chapter of a work subtitled “Sex and Disease, Past and Present,” is somewhat puzzling. Even more conspicuous is the author's failure to expand upon the 1530 poem regarding the plight of the impious shepherd, Syphilis, from whom the disease in question received its name. Why would a literary scholar prone to draw on popular writings not give more than a single‐sentence mention to this historically relevant poem?Of the works Allen has drawn upon, he offers a pleasant mix of primary and secondary accounts that, like all good literary criticism, gives original sources a clear voice. Any work so selectively focused on a few diseases will leave some readers wondering about others that might have been perceived in terms of sex and sin. Were such associations discussed in regard to madness in the eighteenth century, tuberculosis in the nineteenth century, or the wide range of twentieth‐century STDs prior to AIDS? Why was no mention made of leprosy in the twentieth‐century context? Its AIDS‐like stigma has been historically contextualized in several works, including Stephanie J. Castillo's award‐winning 1992 documentary Simple Courage. Similarly, one wonders why the author chose not to drawn on standard medical history accounts on AIDS, including Elizabeth Fee and Daniel M. Fox's edited volume AIDS: The Burden of History and, perhaps more important for the Francophile Allen, Mirko D. Grmek's Histoire du SIDA: Début et origine d'une pandémie actualle .Apart from my historiographical criticisms, The Wages of Sin is a most delightful popular rendering of key relations between disease and Christianity. Works like this are extremely useful in reminding the reading public in an articulate, informative, and entertaining manner that they are part of humanity's continuum that has long sought connections between physical health and moral living. Indeed, Allen's apt description of the underlying usefulness of history underscores the importance of his own writing: “We value history because, whatever its distortions and inaccuracies, it is a way of understanding and giving value to our collective human experience and collective human memory”. (shrink)

This book provides an entry-level introduction to philosophical ethics, theories of moral reasoning, and selected issues in applied ethics. Chapter 1 describes the importance of philosophical approaches to ethical issues, the general dialectical form of moral reasoning, and the broad landscape of moral philosophy. Chapter 2 presents egoism and relativism as challenges to the presumed objectivity and unconditionality of morality. Chapters 3, 4 and 5 discuss utilitarianism, deontology, and virtue ethics, respectively. Each chapter begins with a general overview of the (...) characteristic theory of value and moral reasoning and proceeds to present a more refined account based on a prominent historical source (Mill, Kant, and Aristotle, respectively). It then discusses strengths and weaknesses of the theory from a contemporary perspective, including more recent developments, defenses, and critiques. Each chapter includes an appendix in which secondary, less prominent, or more complex issues are discussed. Chapters 6-9 address in detail a prominent area of applied ethics: 6. abortion, 7. assisted dying, 8. Biotechnology, 9. Animals and eating. Each of these chapters presents an introduction to the topic, including definitions, historical and contemporary developments and contexts, etc.; the various questions and issues involved; and an application of each theory from multiple points of view. Each chapter also includes a set of primary readings along with an extensive bibliography. Chapter 10 discusses four more areas of applied ethics: War, Torture, and Terrorism; Capital Punishment; Environmental Ethics; and Same-Sex Marriage. The treatment of these topics focuses mainly on the introductory material. While there is some discussion of the various ethical arguments, it is less comprehensive or detailed compared to other chapters. However, several primary resources are listed to supplement the discussion in the textbook. (shrink)

Simon Forman, as Barbara Howard Traister puts it, “turned himself into text”: an obsessive writer, he left a cache of manuscripts, some of which—like the earliest surviving chronological case records—are of great historical value. Some of Forman's manuscripts are autobiographical, and it is for the more intimate details of his life that Forman has been known in recent years. He is “notorious” today largely for his sex life, being the subject of A. L. Rowse's well‐known study, Simon Forman: Sex and (...) Society in Shakespeare's Age . But Traister looks at Forman's manuscripts in their entirety, and the bulk of her book considers the intellectual and professional aspects of his medical and astrological practice. This provides a welcome counterweight to Rowse's account of Forman as well as some corrections to the fleeting and often misleading impressions given in other secondary literature.In so far as Forman's professional life is known, it is as a charlatan who preyed on the gullible to acquire fame, money, and sexual favors. From Traister's account there would seem to be a kernel of truth in this but a great deal of distortion too. Though by no means averse to taking payment “in kind” from the women he treated, Forman was a widely recognized authority on the diseases of women and his case notes show that he took his practice seriously. The same is true more generally of Forman's astrological practice , which was founded on a deep belief in the accuracy of astrological predictions. Indeed, Forman claimed that only through astrology could a physician successfully diagnose and treat disease.Forman was, however, a controversial figure in his own age, being “notorious” in the sense that he repeatedly fell foul of the London College of Physicians, which attempted to enforce its monopoly of medical practice in the English capital and its environs. Forman was brought before the college on several occasions for practicing without a license and received a number of fines and jail sentences for his repeated violations of the law. He was continually hounded and ridiculed by the college, partly because he was so successful. People—especially women—from all sections of English society came to consult Forman as a physician and astrologer, although it was largely for the former that he was venerated. Although he was mocked by the college for his ignorance of classical learning, Forman's medical knowledge was considerable, if not entirely systematic, though he lacked the necessary “polish” to present his knowledge in a manner acceptable to such a conservative body. Nevertheless, Forman's medical reputation was sufficiently impressive for him to be granted a license to practice by Cambridge University, after what was most likely a serious examination.Forman's case notes show that he worked within a largely Galenic framework, and most of his treatments aimed at restoring humoral equilibrium. But, like many other practitioners of the time, he embellished his practice with chemical drug therapies; and there is evidence that he incorporated Paracelsian ideas. His case notes are so valuable because they show Forman's knowledge and practice evolving steadily over time: a development that is evident, for example, in his writings on plague. His first essay on plague was composed during the London epidemic of 1593, his second during the outbreak of 1607. The former treated the disease astrologically and theologically, seeing the epidemic as a form of divine punishment for the sins of mankind. The second dealt with the physical nature of the disease and its immediate causes. The two works should not be seen as set in opposition to one another, for they dealt with different features of a complex web of causation, with the increasing concern related to natural causes typifying much of the writing on plague at this time. Growing familiarity with plague—which typically broke out in major cities every ten years or so—permitted closer observation of the disease as a natural phenomenon. Forman was well placed to do this because he remained in London during both outbreaks, a decision that did much to enhance his professional reputation and expand his clientele.The importance of Forman's manuscript collection ensures that this book will reach a wide readership, and few will be disappointed. The author writes clearly, with sophistication and insight, and avoids the anachronistic sensationalism of earlier accounts. As might be expected from the title, the book is especially enlightening about medical astrology, the dominant aspect of Forman's professional life. It is interesting to read this account alongside Michael MacDonald's study of Richard Napier—Mystical Bedlam: Madness, Anxiety, and Healing in Seventeenth Century England —for there are many areas of commonality as well as significant differences. All in all, this is a truly fascinating book. Historians of medicine and astrology will find much in it that is relevant to their own areas of specialization. (shrink)

“It was a peculiarly beautiful book. its smooth creamy paper, a little yellowed by age, was of a kind that had not been manufactured for at least forty years past. . . . Even with nothing written in it, it was a compromising possession. The thing that he was about to do was to open a diary. This was not illegal (nothing was illegal, since there were no longer any laws), but if detected it was reasonably certain that it would (...) be punished by death, or at least by twenty-five years in a forced-labour camp.” The Party fears blank paper. On every street corner, you can find newspapers printed With propaganda but blank paper, now that’s nearly impossible to find. For nearly half a century no more notebooks were produced, no blank papers allowed to touch the hands of the masses. This restriction seems odd. Why is blank paper dangerous? What is treacherous about a nice leather-bound book With creamy pages? The very act of Writing on a blank paper is thoughtcrime and Winston knows it. The intriguing question for us is: What’s at stake in the potential of a blank page? There is political potential in a blank page, it could contain a subversive message that could be passed on to others, yet blank paper to Write on is much Weaker than owning a manual printing press hidden in a basement. If Winston Wanted to instigate rebellion against the Party, he Would not handwrite manifestos, he should print them somehow. There’s something else going on with Writing your thoughts in a notebook, and that is related to Newspeak. (shrink)

Taking a fresh look at a central controversy in criminal law theory, The Ethics of Capital Punishment presents a rationale for the death penalty grounded in a theory of the nature of evil and the nature of defilement. Original, unsettling, and deeply controversial, it will be an essential reference point for future debates on the subject.

I start from the presupposition that the use of force against another is justified only in self-defence or in defence of others against aggression. If so, the main work of justifying punishment must rely on its deterrent effect, since most punishments have no other significant self-defensive effect. It has often been objected to the deterrent justification of punishment that it commits us to using offenders unacceptably, and that it is unable to deliver acceptable limits on punishment. I (...) describe a sort of deterrent theory which can avoid both of these objections. (shrink)

This book offers a philosophical analysis of the moral and legal justifications for the use of force. While the book focuses on the ethics self-defense, it also explores its relation to lesser evil justifications, public authority, the justification of punishment, and the ethics of war. Steinhoff’s account of the moral use of force covers a wide range of topics, including the nature of justification in general, the precise elements of different justifications, the logic of claim- and liberty-rights and of (...) rights forfeiture, the value of human life and its limits, and the principles of reciprocity and precaution. While the author’s analysis is primarily philosophical, it is informed by a metaethical stance that also places heavy emphasis on existing law and legal scholarship. In doing so, the book appeals to widely shared moral intuitions, precepts, and concepts grounded in criminal law. Self-Defense, Necessity, and Punishment offers the most comprehensive and systematic account of the ethics of self-defense. It will be of interest to scholars and graduate students working in applied ethics and moral philosophy, philosophy of law, and political philosophy. (shrink)

In recent decades, there has been growing interest among philosophers in what the various Buddhist traditions have said, can say, and should say, in response to the traditional problem of free will. This article investigates the relationship between Buddhist philosophy and the historical problem of free will. It begins by critically examining Rick Repetti's Buddhism, Meditation, and Free Will (2019), in which he argues for a conception of “agentless agency” and defends a view he calls “Buddhist soft compatibilism.” It then (...) turns to a more wide‐ranging discussion of Buddhism and free will—one that foregrounds Buddhist ethics and takes seriously what the various Buddhist traditions have said about desert, punishment, and the reactive attitudes of resentment, indignation, and moral anger. The article aims to show that, not only is Buddhism best conceived as endorsing a kind of free will skepticism, Buddhist ethics can provide a helpful guide to living without basic desert moral responsibility and free will. (shrink)

In a paper published in 2006, I argued that the best way of defending something like our current practices of punishing war criminals would be to base the justification of this practice on an expressive theory of punishment. I considered two forms that such a justification could take—a ‘denunciatory’ account, on which the purpose of punishment is supposed to communicate a commitment to certain kinds of standard to individuals other than the criminal and a ‘communicative’ account, on which (...) the purpose of the punishment is to communicate with the perpetrator, and argued for a denunciatory account which I developed at some length. In this paper I would like to reconsider the plausibility of a communicative account. One difficulty that such accounts face is that the punishment of war criminals often involves the inflicting of harsh treatment on them by individuals who are members of states other than their own. On a communicative account this is problematic: on such an account—or at least on the version of it proposed by Duff (2000)—it is essential that those who are punish and those who punish them belong to a single community. When this requirement is not satisfied harsh treatment does not constitute punishment. Duff has argued that the problem can be solved by regarding all human beings as members of a single moral community: here I argue that this suggestion is unsatisfactory and propose an alternative. One consequence of my account is that if it is correct there may limitations on the range of kinds of war criminal that can legitimately be punished by international tribunals. (shrink)

Many Christians are split on whether they believe we should endorse or oppose capital punishment. Each side claims Biblical support for their professed position. This essay cannot hope to bring this debate to a conclusion. However, it will try to offer a different perspective. The essay recognizes that the Bible itself offers statements in support of each position. The proposed way forward is not to claim there is a contradiction, but to place greater emphasis on understanding these statements in (...) their particular contexts, specifically with reference to their relation to Jesus’ New Covenant. Such a perspective should lead us to oppose capital punishment. (shrink)