The principle of fairness holds that individuals (beneficiaries) who benefit from a cooperative scheme of others (cooperators) have an obligation to do their share in return for their benefit. The original proponent of this principle, H. L. A. Hart suggests ‘mutuality of restrictions’ as a moral basis because it is fair to mutually restrict the freedom of both beneficiaries and cooperators; so called the fairness obligation. This paper explores ‘mutuality of restrictions’, which is interpreted as a right-based and an equality-based (...) justification of the fairness obligation. It is not argued whether both ways of justifying the obligation makes a success, but that they are in need of presupposing that there is a duty for beneficiaries to do their share in return for their benefit. This suggests turning to a duty-based justification of the fairness obligation. (shrink)

Contributions to COVID-19 vaccination programmes promise valuable collective goods. They can support public and individual health by creating herd immunity and taking the pressure off overwhelmed public health services; support freedom of movement by enabling governments to remove restrictive lockdown policies; and improve economic and social well-being by allowing businesses, schools, and other essential public services to re-open. The vaccinated can contribute to the production of these goods. The unvaccinated, who benefit from, but who do not contribute to these goods (...) can be morally criticised as free-riders. In this paper defends the claim that in the case of COVID-19, the unvaccinated are unfair free-riders. I defend the claim against two objections. First, that they are not unfair free-riders because they lack the subjective attitudes and intentions of free-riders; second, that although the unvaccinated may be free-riders, their free-riding is not unfair. (shrink)

Die Sekundärnutzung klinischer Daten für Forschungs- und Lernaktivitäten hat das Potenzial, medizinisches Wissen und klinische Versorgung erheblich zu verbessern. Zur Realisierung dieses Potenzials bedarf es einer ethischen und rechtlichen Grundlage für die Datennutzung, vorzugsweise in Form der Einwilligung von Patient*innen. Damit stellt sich die grundsätzliche Frage: Haben Patient*innen eine moralische Pflicht, ihre klinischen Daten für Forschungs- und Lernaktivitäten zur Verfügung zu stellen?Auf Basis eines ethischen Ansatzes, der als „sorgender Liberalismus“ bezeichnet werden kann, werden folgende Argumente zur Begründung einer Pflicht von (...) Patient*innen zur Bereitstellung ihrer klinischen Daten für Forschungs- und Lernaktivitäten auf Plausibilität und moralisches Gewicht untersucht: die allgemeine Hilfspflicht; Solidarität; die Pflicht zu gemeinwohlförderlichem Handeln; das Trittbrettfahrerargument; transgenerationale Gerechtigkeit; das Prinzip des Zurückgebens; das Prinzip des Nicht-Schädigens; die Forschungsfreiheit und der Wert der Wissenschaft.Die allgemeine Hilfspflicht und die Pflicht zu gemeinwohlförderlichem Handeln sind gewichtige Gründe für eine moralische Pflicht von Patient*innen zur Bereitstellung ihrer klinischen Daten für Forschungs- und Lernaktivitäten. Das Argument der transgenerationalen Gerechtigkeit und das Prinzip des Zurückgebens sind ethisch schwache Gründe für eine solche Pflicht, können jedoch eine motivationale Rolle spielen. Die anderen Gründe sind nicht geeignet, eine Pflicht zu begründen. Das Ergebnis ist in mehrfacher Hinsicht relevant: für Patient*innen, die um die Einwilligung in die Sekundärnutzung ihrer klinischen Daten gebeten werden; für die ethische Diskussion der Frage, ob und inwieweit Abstriche von der klassischen spezifischen Einwilligung unter bestimmten Bedingungen ethisch akzeptabel sind; für die rechtwissenschaftliche Diskussion der Bedingungen für eine juristisch verhältnismäßige Sekundärnutzung klinischer Daten für Forschungs- und Lernaktivitäten. (shrink)

Research question The secondary use of clinical data for research and learning activities has the potential to significantly improve medical knowledge and clinical care. To realize this potential, an ethical and legal basis for data use is needed, preferably in the form of patient consent. This raises the question: Do patients have a moral duty to provide their clinical data for research and learning activities? Methods On the basis of an ethical approach that we call “caring liberalism,” we evaluate plausibility (...) and moral weight of the following arguments in favor of a duty on patients to provide their clinical data for research and learning activities: the general duty to help; solidarity; the duty to act in the public interest; the free-rider argument; transgenerational justice; the principle of giving back; the do-not-harm principle; freedom of research and the value of science. Results The general duty to help and the duty to act in the public interest are strong reasons for a moral duty of patients to provide their clinical data for research and learning activities. Transgenerational justice and the principle of giving back are ethically weak reasons for such a duty but might be motivational factors. The other reasons are not appropriate to justify a duty. The results are relevant in several respects: for patients who are asked to consent to the secondary use of their clinical data; for the ethical discussion of the question whether and to what extent deviations from the classical specific consent are ethically justifiable under certain conditions; for the legal discussion of the conditions for a proportionate secondary use of clinical data for research and learning activities. (shrink)

Whether there is a general moral obligation to obey the law, often referred to as ‘political obligation’, is an enduring question in contemporary legal and political philosophy. Theories are continually being formulated, criticized, and reformulated as theorists attempt to settle this issue. However, there yet remains no general consensus as to whether any theory successfully answers this question in either the affirmative or the negative. I propose the legal doctrine of quasi-contract as a candidate for making sense of this persistent (...) issue. While the duty to reciprocate and the principle of reasonable expectations each falls short when independently advanced as a theory of political obligation, quasi-contract, which combines reciprocity, reasonable expectations, and additional moral considerations, is able to establish a satisfactory account of political obligation. (shrink)

English today seems to be emerging as a global lingua franca. And a global lingua franca would be a global public good. Characteristically, being non-excludable, public goods are susceptible to free-riding: absent targeted distributive policies, some individuals can accrue a good’s benefits without having contributed to the costs of its production. In this paper, I make two arguments. First, I argue, against Philippe Van Parijs, that Anglophones are not unfairly free-riding on the efforts of non-Anglophones of producing English as a (...) global lingua franca. I defend the view that instances of what counts as unfair free-riding should be limited to free-riding on public goods that are co-operatively produced. Second, I suggest an alternative claim that is available for Van Parijs to make. Van Parijs believes a global lingua franca is required by global justice. This is a highly controversial claim. But if he is right, then Anglophones' free-riding on the global lingua franca while not an instance of unfair free-riding, may be objectionable nonetheless. (shrink)

Philosophy, despite its typical attitude of detachment and abstraction, has for most of its long history been engaged with the practical and mundane-seeming question of whether there is a duty to obey the law. As Matthew Kramer has recently summarized: “For centuries, political and legal theorists have pondered whether each person is under a general obligation of obedience to the legal norms of the society wherein he or she lives. The obligation at issue in those theorists' discussions is usually taken (...) to be prima-facie, comprehensively applicable, universally borne, and content-independent.” This essay is a commentary on the current state of discussion of this perennial philosophical topic. (shrink)

This article investigates the relationship between distributive injustice and political obligation within the confines of the fair-play theory of political obligation. More specifically, it asks ho...

This article investigates the relationship between distributive injustice and political obligation within the confines of the fair-play theory of political obligation. More specifically, it asks how the distribution of benefits and burdens of a cooperative scheme affects people’s fair-play obligations to that scheme. It argues that neither a sufficiency-based nor a proportionality-based approach is capable of answering that question singlehandedly. However, the two approaches can be combined in a plausible way. Noting that some of the duties that go into our (...) fair-play obligations are ‘gradual’ and others are ‘non-gradual’, the article argues that the sufficiency-based approach explains non-gradual duties such as the duty to obey the law, and that the proportionality-based approach explains gradual duties like political participation and civic responsibility. Thus, the article contends that the fair-play theory should be extended beyond the question of legal compliance and be applied to the duties of good citizenship more generally. (shrink)

In this paper, I defend fairness-based retributivism against two important objections, the no-benefit objection and the social injustice objection. I argue that the theory can defeat the no-benefit objection by developing an account of how crimes can be sources of unfairness by inflicting losses on people, and that it can blunt the social injustice objection by toning down the theory’s distributive aspirations. I conclude that fairness-based retributivism, contrary to received wisdom, merits further attention from legal and political philosophers.

Multiple authors have argued that moral cosmopolitanism, the thesis that every human has a global stature as an ultimate unit of moral concern, is compatible with domestic egalitarianism. This is because they believe that from equal concern does not follow equal treatment, and it might be possible to impartially justify partial treatment. Some such attempts at justifying restricting the scope of egalitarian demands of distributive justice to the state proceed by application of Rawls’s principle of fairness to the provision of (...) basic goods. But such relational approaches have been criticized by institutionalists who believe there is a global basic structure for the provision of basic goods. Institutional approaches, however, have themselves been criticized for relying on less than global institutions, such that the egalitarianism that they may justify is not truly global either. We argue that beyond institutionally provided goods there are nonetheless some goods whose provision is truly global, such that we can find a relational foundation for global egalitarianism, from which we can argue for cosmopolitan institutionalization. (shrink)

The thesis examines the theoretical relationship between law and ethics. Its methodology is informed by both the existentialist tradition of ethical phenomenology and the natural law tradition in legal theory. The main claim of the thesis is that a phenomenological analysis of ethical experience, as suggested by the writings of existentialist authors such as Jean-Paul Sartre and Emmanuel Levinas, provides important support for the natural law tradition. This claim is developed and defended through detailed engagement with the natural law theory (...) of John Finnis. Specifically, I contend that Finnis’ account of moral reasoning as applying the principles of practical reasonableness to a context of self-evident, basic values gains significant support from a phenomenological theory of ethical experience. Finnis’ emphasis on the irreducible role of choice in moral deliberation also finds support in the existentialist tradition. However, I criticise some key aspects of Finnis’ theory, including his emphasis on the transcendental character of the basic values and his account of legal obligation. I begin by outlining some central features of the existentialist approach to philosophy. I advance an interpretation of existentialism as ethical phenomenology. I then discuss some possible methodological connections between the existentialist and natural law traditions. This discussion provides the methodological framework for the remainder of the thesis. The thesis develops and defends a substantially original theory of the relationships between law, ethics and politics. The exposition begins with an account of the relationship between law and community that draws upon the work of Finnis and G. W. F. Hegel. I then outline a phenomenological theory of ethical experience, drawing in particular on the writings of Sartre and Levinas. I employ this phenomenological account of ethics to develop a conception of moral reasoning as reflective, good faith engagement with pre-reflective social judgements of ethical significance. This view of ethical experience and moral reasoning is then used as the basis for an examination of the concept of law and its relationship to political discourse. I turn next to the notions of legal authority and obligation. I argue that law, in the focal sense of the term, presents a generic, peremptory obligation that is necessarily moral in character. In the course of the argument, I critically discuss the conceptions of legal authority proposed by Joseph Raz, Adolf Reinach, H. L. A. Hart, John Rawls, Finnis, Jacques Derrida and Hans Kelsen. This view of legal obligation entails there are fundamental moral conditions that positive rules must satisfy to qualify as law, in the focal sense. I explore the nature of the moral framework created by these conditions through a detailed analysis of the ethical foundations of political discourse. I argue that political discourse is founded upon an ontological apprehension of the nature of humans as free, ethical beings, which finds expression in a developed notion of political freedom. I suggest that the distinction between positive and negative forms of freedom advanced by Isaiah Berlin is best understood in terms of the different types of political claims invoked by those conceptions. I develop this theory by reference to the work of Charles Taylor, Gerald C. MacCallum, Wesley Newcomb Hohfeld, W. D. Ross, Robert Nozick and F. A. Hayek. I conclude by discussing the role of ethical experience in the interpretation of legal materials. I argue that ethical judgements play an irreducible role in constructing the natural interpretive context for judicial reasoning. I engage with the work of Hart, Lon L. Fuller, Martin Heidegger, Hans-Georg Gadamer, Ferdinand de Saussure and Ronald Dworkin, among others. In the final substantive chapter of the thesis, the potential for ethical judgements to play a constructive role in judicial action is illustrated through a detailed discussion of the doctrine of government neutrality. (shrink)

One of the core issues in contemporary political philosophy is concerned with `political obligation.' Stated in an overly simplified way, the question being asked when one investigates political obligation is, "What, if anything, do citizens owe to their government and how are these obligations generated if they do exist?" The majority of political philosophers investigating this issue agree that a political obligation is a moral requirement to act in certain ways concerning political matters. Despite this agreement about the general nature (...) of what is being searched for, a broad division has arisen between political obligation theorists - there are some who take political obligations to actually exist and there are some who take there to be no general political obligation. While there is debate within the camp defending political obligation about what it is that generates the obligations, the common core of all "defender theories" is the fundamental idea that one has a moral requirement to support and obey the political institutions of one's country. Despite utilitarianism's status as one of the major ethical theories, historically, it has largely been dismissed by theorists concerned with political obligation. Within the contemporary debate it is generally accepted that utilitarianism cannot adequately accommodate a robust theory of political obligation. The overarching objective of this dissertation is to challenge this general dismissal of a utilitarian account and to build upon the two accounts which have been developed in offering a robust utilitarian theory of political obligation which can be considered a competitor to the other contemporary theories. However, as this utilitarian account of political obligation develops, the possibility will also emerge for a non-antagonistic relationship between the utilitarian theory on offer and the contemporary political obligation debate. The moral reasons posited by the traditional theories of political obligation can be included in and accommodated by my utilitarian account. The utilitarian account of political obligation can accept that there are many types of reasons explaining why broad expectations concerning individual and group behavior are created, and each type of reason can be understood as supporting the utilitarian claim that there are moral reasons for following the laws and supporting legitimate political authorities. Taken all together, my arguments will take the form of a three tiered response to the prevailing opinion that any utilitarian attempt to account for political obligations is doomed. The first tier contends that the utilitarian can consistently claim that there are moral reasons to follow the law. This is not a particularly strong claim, but it is one which has been denied by the vast majority of political theorists. The second tier of my argument addresses this apparent issue by contending that even the traditional deontological accounts of political obligation are not offering more than this. Lastly, it is contended that, given the contingent features of humans, the strength of the utilitarian political obligations is comparable to other accounts' analyses of the obligations. (shrink)