Freedom of contract and corrective justice are considered to be the basic principles governing contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most striking example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the (...) concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one. (shrink)

The goal of this paper is to provide an accurate grounding-based formulation of positivism in the philosophy of law. I start off by discussing some simple formulations, based on the ideas that social facts are always either full or partial grounds of legal facts. I then raise a number of objections against these definitions: the full grounding proposal rules out possibilities that are compatible with positivism; the partial grounding proposal fails, on its own, to vindicate the distinctive role that is (...) played by social facts within positivist accounts of law. Then, I present a more adequate and insightful formulation capable of solving their problems, which crucially relies on a robust notion of a social enabler. Finally, I model inclusive and exclusive positivism on the resulting template, and set out the advantages of the ground-enablers proposal. (shrink)

Increasingly, global businesses are confronted with the question of complicity in human rights violations committed by abusive host governments. This contribution specifically looks at silent complicity and the way it challenges conventional interpretations of corporate responsibility. Silent complicity impliesthat corporations have moral obligations that reach beyond the negative realm of doing no harm. Essentially, it implies that corporations have a moral responsibility to help protect human rights by putting pressure on perpetrating host governments involved in human rights abuses. This is (...) a controversial claim, which this contribution proposes to analyze with a view to understanding and determining the underlying conditions that need to be met in order for moral agents to be said to have such responsibilities in the category of the duty to protect human rights. (shrink)

ABSTRACTThe Introduction presents the special issue of Critical Horizons which purpose is to do justice to Young’s conception of political responsibility by gathering essays that present, analyse and comment on it, demonstrating its value for contemporary political philosophy. Several aspects differentiate Young’s view from what could be called a classic conception of responsibility. This special issue gathers four articles that show Young’s innovative conception of responsibility. The first clarifies the logic of Young’s social connection model; the second extends its theoretical (...) framework; the third elaborates on its intuitions; the fourth applies it to a specific context in a way that reveals its interest. (shrink)

The fair-play theory of punishment claims that the state is justified in imposing additional burdens on law-breakers, to remove the unfair advantage the latter have enjoyed by disobeying the law. From this perspective, punishment reestablishes a fair distribution of benefits and burdens among all citizens. In this paper, I object to this view by focusing on the case of civil disobedience. I argue that the mere illegality of this conduct is insufficient to establish the agent’s unfair advantage over his lawabiding (...) fellows, hence the imposition of additional burdens upon him through legal punishment. I articulate a broader account of citizens’ fair-play duties, able to capture disobedience as well as obedience to the law. While claiming that some law-breakers may not be treated as free-riders, I also gesture at the fact that some law-obeying citizens may not be ‘playing fair’: in some cases, a failure to engage in civil disobedience represents a failure to do one’s own part within the cooperative scheme of society. (shrink)

The standard model of precedential constraint holds that a court is equally free to modify a precedent of its own and a precedent of a superior court—overruling aside, it does not differentiate horizontal and vertical precedents. This paper shows that no model can capture the U.S. doctrine of precedent without making that distinction. A precise model is then developed that does just that. This requires situating precedent cases in a formal representation of a hierarchical legal structure, and adjusting the constraint (...) that a precedent imposes based on the relationship of the precedent court and the instant court. The paper closes with suggestions for further improvements of the model. (shrink)

ABSTRACTOn 4 September 2015 asylum seekers who got stranded in Budapest’s Keleti train station began a march to cross the Austrian border. Their aim was to reach Germany and Sweden where they believed their asylum claims would be better received. In this article, I argue that the march should be characterized as an act of civil disobedience. This claim may seem to contradict common convictions regarding acts of civil disobedience as well as asylum seekers. The most common justifications are given (...) with reference to moral rights of citizens and concerns for enhancing justice or democracy within states. Asylum seekers are not members of the European public. How can they be entitled to break the law? I first show that the march displays features of a paradigm case of civil disobedience. Then, I identify moral reasons for asylum seekers to carry out the march acceptable from both strong and weak cosmopolitan perspectives. After that, I point out its corrective, stabilizing and democracy-enhancing roles in the European political landscape. I conclude by emphasizing that conceptualizing the march as an act of civil disobedience is significant in recognizing asylum seekers as political agents making claims within an evolving framework of refugee protection. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

Is there a political philosophy of conservatism? A history of the phenomenon written along sceptical lines casts doubt on the existence of a transhistorical doctrine, or even an enduring conservative outlook. The main typologies of conservatism uniformly trace its origins to opposition to the French Revolution. Accordingly, Edmund Burke is standardly singled out as the ‘father’ of this style of politics. Yet Burke was de facto an opposition Whig who devoted his career to assorted programmes of reform. In restoring Burke (...) to his original milieu, the argument presented here takes issue with 20th-century accounts of conservative ideology developed by such figures as Karl Mannheim, Klaus Epstein and Samuel Huntington. It argues that the idea of a conservative tradition is best seen as a belated construction, and that the notion of a univocal philosophy of conservatism is basically misconceived. (shrink)

The use of certain performance-enhancing drugs (PED) is banned in sport. I discuss critically standard justifications of the ban based on arguments from two widely used criteria: fairness and harms to health. I argue that these arguments on their own are inadequate, and only make sense within a normative understanding of athletic performance and the value of sport. In the discourse over PED, the distinction between “natural” and “artificial” performance has exerted significant impact. I examine whether the distinction makes sense (...) from a moral point of view. I propose an understanding of “natural” athletic performance by combining biological knowledge of training with an interpretation of the normative structure of sport. I conclude that this understanding can serve as moral justification of the PED ban and enable critical and analytically based line drawing between acceptable and nonacceptable performance-enhancing means in sport. (shrink)

The desire-satisfaction theory of well-being says, in its simplest form, that a person’s level of welfare is determined by the extent to which their desires are satisfied. A question faced by anyone attracted to such a view is, *Which desires*? This paper proposes a new answer to this question by characterizing a distinction among desires that isn’t much discussed in the well-being literature. This is the distinction between what a person wants in a merely behavioral sense, in that the person (...) is, for some reason or other, disposed to act so as to try to get it, and what a person wants in a more robust sense, the sense of being *genuinely attracted* to the thing. I try to make this distinction more clear, and I argue for its axiological relevance by putting it to work in solving four problem cases for desire satisfactionism. The theory defended holds that only desires in the latter, genuine-attraction sense are relevant to welfare. (shrink)

Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue (...) to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge. (shrink)

It is generally accepted that the normative idea of personhood is central to African moral thought, but what has not been done in the literature is to explicate its relationship to the Western idea of rights. In this article, I investigate this relationship between rights and an African normative conception of personhood. My aim, ultimately, is to give us a cursory sense why duties engendered by rights and those by the idea of personhood will tend to clash. To facilitate a (...) meaningful philosophical discussion, I locate this engagement in the context of a debate between Ifeanyi Menkiti and Kwame Gyekye about the nature of Afro-communitarianism, whether it will ground rights as primary or secondary. I endorse Menkiti’s stance that duties are primary and rights secondary; and, I also problematize moderate communitarianism for taking a Western stance by employing a naturalist approach to rights. (shrink)

It has become somewhat a commonplace in recent political philosophy to remark that all plausible political theories must share at least one fundamental premise, ‘that all humans are one another's equals’. One single concept of ‘basic equality’, therefore, is cast as the common touchstone of all contemporary political thought. This paper argues that this claim is false. Virtually all do indeed say that all humans are ‘equals’ in some basic sense. However, this is not the same sense. There are not (...) one but two concepts of basic equality, and they reflect not a grand unity within political philosophy but a deep and striking division. I call these concepts ‘Equal Worth’ and ‘Equal Authority’. The former means that each individual’s good is of equal moral worth. The latter means that no individual is under the natural authority of anyone else. Whilst these two predicates are not in themselves logically inconsistent, I demonstrate that they are inconsistent foundation stones for political theory. A theory that starts from Equal Worth will find it near impossible to justify Equal Authority. And a theory that starts from Equal Authority will find any fact about the true worth of things, including ourselves, irrelevant to justifying legitimate action. This helps us identify the origin of many of our deepest and seemingly intractable disagreements within political philosophy, and directs our attention to the need for a clear debate about the truth and/or relationship between the two concepts. In short, my call to arms can be summed up in the demand that political philosophers never again be allowed to claim ‘that all human beings are equals’ full stop. They must be clear in what dimension they claim that we are equals—Worth or Authority. (shrink)

The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation.

Jack and Jill have both applied for the same entry-level position at a local university. After interviewing the leading candidates, the members of the hiring committee agree that both Jack and Jill have all the necessary qualifications for appointment to the position. Both have the required education and training. Both have strong letters of recommendation from their Ph.D. supervisors and from their current employers. Both are similarly experienced and both are potentially capable of making important future contributions to their chosen (...) discipline. The members of the hiring committee also agree that Jack and Jill are superior to all other applicants for the position. In short, in the judgment of the hiring committee, they are the two best qualified candidates and both meet their potential employer's expectations concerning a successful applicant. Yet neither Jack nor Jill is clearly superior to the other. (shrink)

This article focuses on questions of pure fact-of-the-matter and asks whether two omniscient judges may disagree over the legal answer to a straightforward question of a matter of fact. There are approaches to legal theory among some western and Jewish philosophers of law whereby at least superficially it is possible that two or more contradictory legal statements regarding a given reality can be equally correct. The article provides a critical analysis of three different models derived from the Jewish legal literature, (...) and reviews the contributions of Jewish sources to the understanding of the phenomenon of disagreements concerning matters of fact. (shrink)

How does so much gender inequality endure in an era when many laws and policies endorse principles of gender equality? This essay examines this dilemma by considering Susan Moller Okin's criticism of “false gender neutrality,” research on implicit bias, and the shifting relation of gender bias to American law. I argue that these are crucial elements of the modern cycle of gender inequality, enabling it to operate through a perverse “invisible-hand” mechanism. This framework helps convey how underlying gender bias influences (...) individual behaviors that generate, legitimate, and mask broad patterns of inequality. Contemporary legal conflicts reflect many of these dynamics, which appear in controversies over gender-based violence, gender discrimination in pay and promotion, and women's reproductive health care benefits. This analysis advances our understanding of how the contemporary cycle of gender inequality operates, the complex links between individual behavior and structural bias, and the difficulty of pursuing gender justice through prevailing frameworks of law and liberalism. It also underscores the continued importance of feminists' collective work to address “invisible” as well as visible biases. (shrink)

In his new book, The Force of Law, Frederick Schauer maintains that law has no necessary properties, and that therefore jurisprudents should not assume that an inquiry into the nature of law has to be a search for such properties. I argue, however, that Schauer's attempt to show that legal anti-essentialism is a defensible position fails, because his one main argument is either irrelevant or else incomplete, depending on how one understands it, and because the other main argument is false.

ABSTRACTThis paper explores the international implications of liberal theories which extend justice to sentient animals. In particular, it asks whether they imply that coercive military intervention in a state by external agents to prevent, halt or minimise violations of basic animal rights can be justified. In so doing, it employs Simon Caney's theory of humanitarian intervention and applies it to non-human animals. It argues that while humane intervention can be justified in principle using Caney's assumptions, justifying any particular intervention on (...) behalf of animals is much more difficult – and in present circumstances impossible. If these claims are correct, a number of important conclusions follow. First, all states lack legitimacy because of the horrors that they inflict upon animals. As a result of this, all states are prima facie liable to intervention by external agents. To remedy this situation, all states have the responsibility to massively transform their relationsh... (shrink)

I argue that Schopenhauer’s ascription of (moral) rights to animals flows naturally from his distinctive analysis of the concept of a right. In contrast to those who regard rights as fundamental and then cast wrongdoing as a matter of violating rights, he takes wrong (Unrecht) to be the more fundamental notion and defines the concept of a right (Recht) in its terms. He then offers an account of wrongdoing which makes it plausible to suppose that at least many animals can (...) be wronged and thus, by extension, have rights. The result, I argue, is a perspective on the nature of moral rights in general, and the idea of animal rights in particular, that constitutes an important and plausible alternative to the more familiar views advanced by philosophers in recent decades. (shrink)

Barger and Barney (2004/this issue) offered a number of reasons for the public, the news media, and journalism to develop special, mutually supportive standards of conduct. However, they imbedded these reasonable suggestions in an argument that claims far more than can be delivered. In explaining what is wrong with their argument, I place journalistic ethics within a general theory of professional ethics.

This paper critically examines Richard Rorty’s “justice as larger loyalty” proposal. While Rorty is right, I argue, to reject the Kantian idea of a strict bifurcation between justice and loyalty, the former corresponding to reason the latter corresponding to sentiment, my argument is that it is nevertheless a mistake to follow Rorty in conceiving of justice as he recommends we should. This is not an endorsement of the rationalistic Kantian view Rorty rejects. Rather, I argue that there are compelling Rortyan (...) reasons for rejecting the “justice as larger loyalty” proposal, and that the argument against that proposal is paradoxically very much in the spirit of Rorty’s moral and political thought. (shrink)

In this paper I argue for the following conclusions. First, quotas are not normative goals in themselves but only a means to reach non-discriminatory selection procedures. Second, in a democracy quotas are most plausibly used as a means to fill offices in those bodies which have a major impact on how well interests or discourses are translated into policy. Third, quotas for the young can be justified since, due to demographic development, their discourses tend to be marginalized. Fourth, youth quotas (...) cannot be a means to ensure long-term policy-making, but they can enhance legitimacy of long-term impacts from policy decisions taken today. (shrink)

The article analyses the concept of indirect discrimination, arguing first that existing conceptualisations are unsatisfactory and second that it is best understood as equal treatment that is disadvantageous to the discriminatees because of their group-membership. I explore four ways of further refining the definition, arguing that only an added condition of moral wrongness is at once plausible and helpful, but that it entails a number of new problems that may outweigh its benefits. Finally, I suggest that the moral wrongness of (...) indirect discrimination is best accounted for in terms of the harm it does to discriminatees, and sketch three ways in which it may do so. I conclude that the analysis provides both a clearer understanding of the concept of indirect discrimination as well as indirect support for a harm-based account of the wrongness of discrimination, while suggesting that our moral obligations qua non-discrimination may be more extensive than is frequently assumed. (shrink)

In a recent discussion of disenchantment and re-enchantment Charles Taylor suggests that it is possible to respond to the disenchanted view of the world, in which meaning and value are understood as subjective projections, by articulating a re-enchanted sense of nature or the universe from the perspective of human ‘agency-in-the-world’, in which meaning and value are objective. The question I address in this thesis is, what could it mean to articulate a re-enchantment from within our ‘agency-in-the-world’? In Chapter One I (...) examine the work of John McDowell in order to explore the possibility that he gives sense to the idea of a re-enchantment from within our agency-in-the-world. I conclude that he provides one way of doing so. However I argue that McDowell’s naturalism of second nature can seem limited as it does not address the ‘proto-religious’ dimension to Taylor’s understanding of re-enchantment. In Chapter Two I turn to the work of Roger Scruton to consider whether he provides a re-enchantment from within our agency-in-the-world that does accommodate this proto-religious dimension. I conclude that he does, but raise concerns about how convincing Scruton’s re-enchantment is. I argue that, from a McDowellian point of view, a case can be made that Scruton implicitly accepts as true certain significant elements of the disenchanted view of the world. In Chapter Three I look to the later Heidegger for an alternative re-enchantment from within our agency-in-the-world that attempts to accommodate the proto-religious. I focus on two interpretations of the later Heidegger given by Julian Young and Charles Taylor. In response to a worry put forward by Young, I argue that Charles Taylor’s interpretation can accommodate a proto-religious dimension. In my Conclusion I argue that McDowell’s naturalism of second nature and the understanding of our agency-in-the-world as presented by Taylor’s Heidegger, form interestingly continuous re-enchantments. On this basis I argue that although McDowell himself does not extend his idea of second nature to accommodate the proto-religious, the example of later Heidegger shows that there is nothing inherently limited about the framework of second nature that means it cannot be extended to encompass important proto-religious responses to the world. (shrink)

Since the establishment of the Human Genome Project and the identification of genes in human DNA that play a role in human diseases and disorders, a long, moral and political, battle has began over the extension of IPRs to information contained in human genetic material. According to the Nuffield Council on Bioethics, over the past 20 years, large numbers of human genes have been the subject of thousands of patent applications. This paper examines whether human gene patents can be justified (...) in terms of liberal theories of morality such as natural law, personality development, just reward and social utility. It is argued that human gene patents are in conflict with fundamental principles of liberal morality and justice because they result in "genetic information feudalism". (shrink)

In this chapter we first discuss the main principles of justice and note the standard objections to them, which we believe necessitate a hybrid approach. The hybrid account we defend is primarily based on the distributive principle of sufficientarianism, which we interpret as the idea that each country should have the means to provide a minimally decent quality of life for each of its citizens. We argue that sufficientarian considerations give good reason to think that what we call the ‘ability (...) to pay objection’ should be taken much more seriously in this debate. Following this, our account emphasises what we believe are the two most important moral desiderata in any attempt to distribute responsibility for dealing with climate change: the ability to mitigate the problem and the making of culpable contributions to the problem. After noting that our proposal includes enough detail to be a useful start for policy makers, we defend our account against some potential objections. (shrink)

Mr Jarvis, a Christian, was asleep in bed, dreaming of the Last Judgement. In his dream, Jarvis found himself seated next to God in a great cloud-swept hall. God had just finished handing down judgement on the drunkards, who were slowly shuffling out of the exit to the left. Angels were now ushering a group of nervous-looking men through the entrance to the right. As the men were assembled before Him, God began to speak.

People tend to contribute more—and think they have stronger obligations to contribute more—to rescuing an identified victim rather than a statistical one. Indeed, they are often disposed to contribute more to rescuing a single identified victim than a greater number of statistical ones. By an “identified victim,” I mean Terry Q., lying injured in the passenger seat of the wrecked automobile on the corner of Main Street and Broadway, or Jessica McClure, the child who fell into the Texas well in (...) 1987 and whose family was sent $700,000 in donations for her. We need not know their names, however, and we can accept a very minimal form of identification. By a “statistical victim,” I mean the person who, extrapolating from traffic records, will be in a similar, serious car accident tomorrow (and may then be identified), or the children who will fall into wells next year if we do not cap them better than we did the well that trapped Jessica. Does this disposition (or perceived obligation) have any normative force? I initially thought there could be no such normative force, but consequentialist and nonconsequentialist arguments, pro and con, have convinced me that reasonable people can disagree with each other. This disagreement poses a problem for political philosophy: how should policy choices take such disagreement into account? (shrink)

In this article I describe the analytic approach adopted by Peters, his colleagues and followers of the ?London line? in the 1960s and 1970s and argue that, even in those times, other approaches to philosophy of education were being valued and practised. I show that Peters and his colleagues later became aware of the need for philosophy of education to become aware of and take in hand a new set of agendas and address the list of substantive issues inherent in (...) the contexts and political considerations beginning to impinge on education in the 1980s and beyond. I argue that there is much to be said for adopting a postempiricist problem-solving approach and point to the ways in which an evolutionary epistemology may be usefully applied to many of the problems of modern educational discourse. But I also seek to show how the abiding axiological concerns of Peters may still serve as the substantive background and definition of the value emphasis of the aims and directions in which philosophers of education are currently still working. (shrink)

This paper addresses the question of what value pluralism tells us about the pursuit of moral coherence as a method of moral reasoning. I focus on the status of the norm of ‘systematicity,’ or the demand that our principles be as few and as simple as possible. I argue that, given certain descriptive facts about the pluralistic ways we value, epistemic ways of supporting a systematicity norm do not succeed. Because it is sometimes suggested that coherence functions in moral reasoning (...) as it does in scientific reasoning, my argument considers analogies and disanalogies between moral reasoning and scientific reasoning. (shrink)

In the luck egalitarian literature, one influential formulation of luck egalitarianism does not specify whether equalities that do not reflect people’s equivalent exercises of responsibility are bad with regard to inequality. This equivocation gives rise to two competing versions of luck egalitarianism: asymmetrical and symmetrical luck egalitarianism. According to the former, while inequalities due to luck are unjust, equalities due to luck are not necessarily so. The latter view, by contrast, affirms the undesirability of equalities as well as inequalities insofar (...) as they are due to luck. The symmetrical view, we argue, is by far the more compelling, both by internal luck egalitarian standards and in light of the external rightist emphasis on choice and responsibility to which luck egalitarianism may partly be seen as a response. Our main case for the symmetrical view is that when some people, against a background of equal opportunities, do not exercise their responsibility to the same degree as others, they cannot justifiably call for equalizing measures to be put in place. Indeed, such measures would be positively unfair. The symmetrical view, accordingly, rejects compensation in such cases, whereas the asymmetrical view, implausibly, enjoins it. We also examine two objections to this argument. First, that this view fails to qualify as genuinely egalitarian, instead collapsing the notion of equality into the notion of desert. Second, that the opposing asymmetrical view, in contrast to the symmetrical view, can draw support from its compatibility with sufficientarian concerns. Both objections are rebutted. We conclude that luck egalitarians are best served by endorsing the symmetrical, luck-neutralizing stance. (shrink)

A constitution is, as Article VI of the United States Constitution declares, the fundamental law of the land, supreme as a legal matter over any other nonconstitutional law. But that almost banal statement raises a number of theoretically vexed issues. What is law? How is constitutional law to be distinguished from nonconstitutional law? How do morality and moral rights fit into the picture? And what are the implications of the answers to these questions for such questions as how and by (...) whom should constitutions be interpreted? These are the issues that I shall address.Alexander proceeds as follows: In section I he takes up law's principal function of settling controversies over what we are morally obligated to do. In section II he then relate law's settlement function to the role of constitutional law. In particular, he discusses how constitutional law is distinguished from ordinary law, and he also discusses the role of constitutions in establishing basic governmental structures and enforcing certain moral rights. In section III he addresses the topic of constitutional interpretation, and in section IV the topic of judicial review. Finally, in section V, he discusses constitutional change, both change that occurs through a constitution's own rules for amendments and change that is the product of constitutional misinterpretations and revolutions. (shrink)

In 2007, the Ethics and Governance Council of the UK Biobank commissioned a Report on ‘Concepts of Public Good and Pubic Interest in Access Policies’. This study considered the Biobank’s role as a ‘public good’ in respect to supporting and promoting health throughout society. However, the conditions under which access by third parties to UK Biobank are justified in the public interest have not been well considered. In this article, I propose to analyse the conditions that should allow such access. (...) My argument develops UK Biobank’s function as a ‘public good’ and in terms of its responsibilities as a public health institution; both to protect the rights of the participants and in having a role in reinforcing public goals. Although these two tasks may conflict, it is possible that resolute opposition to some third-party access demands—if properly justified in terms of a public interest—will be damaging to, rather than protective of, participants’ rights. To illustrate my argument, I consider the appropriate response to an extraordinary public emergency , such as a serious criminal investigation or disaster response, in terms of an ethical access policy. (shrink)

For many liberal democrats toleration has become a sort of pet-concept, to which appeal is made in the face of a myriad issues related to the treatment of minorities. Against the inflationary use of toleration, whether understood positively as recognition or negatively as forbearance, I argue that toleration may not provide the conceptual and normative tools to understand and address the claims for accommodation raised by at least one kind of significant minority: democratic dissenting minorities. These are individuals, or aggregates (...) of them, who oppose, on principled grounds, the outcomes of the majoritarian decision-making process. I argue that democratic dissenting minorities' claims are better understood as calls for respect for a person's capacity for self-legislation. I view respect as the cornerstone of justice in a liberal democracy: all norms resulting in a constraint on a person's conduct should be appropriately justified to her. I argue that the reconciliation of democratic dissenting minorities' claims requires an enhancement of the justificatory strategies of democratic decisions by enhancing in turn citizens' rights to political participation. This should be done both during decision making and after a provision is enacted by also securing space for contestation through such forms of illegal protest as civil disobedience and conscientious objection. (shrink)

Moral disagreement about public policies—issues such as abortion, affirmative action, and health care—is a prominent feature of contemporary American democracy. Yet it is not a central concern of the leading theories of democracy. The two dominant democratic approaches in our time—procedural democracy and constitutional democracy—fail to offer adequate responses to the problem of moral disagreement. Both suggest some elements that are necessary in any adequate response, but neither one alone nor both together are sufficient. We argue here that an adequate (...) conception of democracy must make moral deliberation an essential part of the political process. What we call “deliberative democracy” adds an important dimension to the theory and practice of politics that the leading conceptions of democracy neglect. (shrink)

In this paper, I examine the question of the scope of justice, in a not unusual distributive, egalitarian, and universalistic framework. Part I outlines some central features of the egalitarian theory of justice I am proposing. According to such a conception, justice is – at least prima facie – immediately universal, and therefore global. It does not morally recognize any judicial boundaries or limits. Part II examines whether, even from a universalistic perspective, there are moral or pragmatic grounds for rejecting (...) or limiting the global scope of justice. In particular, I scrutinize five universalistic objections: (1) the principle of “moral division of labor”; (2) the connection between cooperation and distributive justice; (3) the primacy of democracy; (4) the dangers of a world state; and (5) political‐pragmatic reasons. I intend to show that these objections cannot undermine the strong normative claims of global justice. At the most, political‐pragmatic reasons speak in favor of initially striving for somewhat less, in order to receive more general backing. (shrink)

Anne Maclean has written a book which purports to identify and then definitively to reject the claims which she perceives to be the claims of bioethics. If she is right, then the enterprise to which this journal is dedicated is misconceived and worthless. In this paper, I attempt to show why so far from being not right she is comprehensively wrong, both in her understanding of the nature of bioethics and in the specific moral claims she makes about those she (...) terms 'bioethicists'. Since much of her book-length study is devoted to a criticism of my own work, this paper analyses the extent to which Maclean's criticisms of me, and by extension, of other bioethicists, are sustainable. (shrink)

How can anyone be opposed to private philanthropy? Such philanthropy consists in persons freely giving of their wealth or other goods to benefit individuals and groups they consider worthy of support. As private persons, they act apart from – although not, of course, in contravention of – the political apparatus of the state. In acting in this beneficent way, the philanthropists are indeed, as their name etymologically implies, lovers of humanity; and their efforts are also justified as exercises of their (...) right to freedom, including the free use of the resources they own, which they have presumably acquired by their own free efforts or by the efforts of other persons who have freely transferred these resources to them. Thus, private philanthropy combines two of the highest values of individual and social morality: personal freedom and interpersonal beneficence. I. Moral Problems of Private Philanthropy Many questions about moral, and especially human, rights arise from private philanthropy as thus briefly characterized. These questions may be divided into three sets, which focus respectively on the agents of philanthropy, on the recipients of philanthropy, and on the objects for which philanthropic awards are given. First, regarding the agents: Do they have a right to all the wealth they possess? Have they accumulated this wealth in a way that has respected the moral rights of other persons? If the answer is negative, even in part, then in what morally valid sense is all the wealth in question theirs to give away, even if they use it for philanthropic purposes: Do they have a right to give it away as they choose? (shrink)

CAPPE LPO Box 8260 ANU Canberra ACT 2601 Australia Tel: +61 (0)2 6125 4355, Fax: +61 (0)2 6125 6579; Email: michael.selgelid{at}anu.edu.au ' + u + '@' + d + ' '//--> Abstract This article reviews ethically relevant history of tuberculosis and recent developments regarding extensively drug resistant tuberculosis (XDR-TB). It argues that tuberculosis is one of the most important neglected topics in bioethics. With an emphasis on XDR-TB, it examines a range of the more challenging ethical issues associated with tuberculosis: (...) individual obligations to avoid infecting others, coercive social distancing measures, third-party notification, health workers' duty to treat contagious patients, and international justice. In each of these cases, key philosophical questions are highlighted and the need for empirical research/information is demonstrated. CiteULike Connotea Del.icio.us What's this? (shrink)

This article argues that it is not necessary to abolish all incidents of animal ownership in order to achieve justice for them. It claims that ownership does not grant owners a right to absolute control of their property. Rather, it argues that ownership is a much more qualified concept, conveying different rights in different contexts. With this understanding of ownership in mind, the article argues that it is possible for humans to own animals and at the same time to treat (...) them justly: to recognize that they possess moral status; to assign them meaningful rights; and to consider their interests equally. (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)

In this paper, I present a new argument against inclusive legal positivism. As I show, any theory which permits morality to be a condition on legality cannot account for a core feature of legal activity, namely, that it is an activity of social planning. If the aim of a legal institution is to guide the conduct of the community through plans, it would be self-defeating if the existence of these plans could only be determined through deliberation on the merits. I (...) also argue that, insofar as inclusive legal positivism was developed as a response to Ronald Dworkin's critique of H. L. A. Hart's theory of law, it was founded on a mistake. For once we appreciate the role that planning plays in legal regulation, we will see that Dworkin's objection is based on a flawed conception of legal obligations and rights and hence does not present an objection that inclusive legal positivists were required to answer. (shrink)

This essay is about the ethical propriety and practical efficacy of a range of policy undertakings which, in the last twenty years, has come to be referred to as “affirmative action.” These policies have been contentious and problematic, and a variety of arguments have been advanced in their support. Here I try to close a gap, as I see it, in this “literature of justification” which has grown up around the practice of preferential treatment. My principal argument along these lines (...) is offered in the next section. I then consider how some forms of argument in support of preferential treatment, distinctly different from that offered here, not only fail to justify the practice but, even worse, work to undermine the basis for cooperation among different ethnic groups in the American democracy. Finally, I observe that as a practical matter the use of group preference can, under circumstances detailed in the sequel, produce results far different from the egalitarian objectives which most often motivate their adoption. It may seem fatuous in the extreme to raise as a serious matter, in the contemporary United States, the question “Why should we care about group inequality?” Is not the historical and moral imperative of such concern self-evident? Must not those who value the pursuit of justice be intensely concerned about economic disparities among groups of persons? The most obvious answer to the title question would seem, then, to be: “We should care because such inequality is the external manifestation of the oppression of individuals on the basis of their group identity.”. (shrink)