The paper argues that an assessment of individualism requires distinguishing five individualistic claims about the self and society: 1) Philosophical Individualism holds that individuals are distinct from society in their reality and capacity for knowledge; 2) The dignity of the individual is a moral belief about the status of human beings; 3) The ideal of individuality is a value belief about the value of diversity; 4) Moral individualism is a comprehensive moral theory based upon philosophical individualism; 5) Political liberalism is (...) a theory of social justice based on construing human dignity in terms of equal liberty. It is argued that philosophical individualism should be rejected and, hence, moral individualism, that individuality is desirable but not obligatory, and that political liberalism, if it can avoid a tendency toward favoring individualistic conceptions of the good, is necessary for dignity in a modern society. (shrink)

There are two discourses that are used in connection with the provision of good healthcare: a rights discourse and a beneficial design discourse. Although the logical force of these two discourses overlaps, they have distinct and incompatible implications for practical reasoning about health policy. The language of rights can be interpreted as the ground of a well-designed healthcare system stressing the values of equality and inclusion, but it has less application when dealing with questions of cost-effectiveness. This difference reflects the (...) distinction between the deontological status of rights claims and a teleological approach presupposed in the language of beneficial design. However, the value of the separateness of persons contained in the discourse of rights can impose constraints on the adoption of a simple maximizing principle when thinking about the allocation of healthcare resources within a social contract for health. Throughout these issues are discussed by reference to the work of Peter Jones. (shrink)

In recent years there has been growing scholarly interest in the relationship between bioethics and human rights. The majority of this work has proposed that the normative and institutional frameworks of human rights can usefully be employed to address those bioethical controversies that have a global reach: in particular, to the genetic modification of human beings, and to the issue of access to healthcare. In response, a number of critics have urged for a degree of caution about applying human rights (...) to such controversies. In particular, they have claimed that human rights have unresolved distributive and foundational problems. Interestingly, however, some of these critics have gone on to suggest that it might be possible to draw on certain bioethical insights to remedy these problems with human rights. This paper evaluates these recent attempts to apply insights from bioethics to the theory and practice of human rights. It argues that while these insights do not constitute an entirely new and original contribution to human rights thinking, they do force human rights scholars and campaigners to reflect on some key issues. First of all, they force us to question the prevalent idea that human rights are always 'inviolable trumps'. Secondly, they demand that we pay close attention to the 'fairness' of the institutions we charge with determining our concrete rights. And finally, and perhaps most radically, these insights challenge the notion that human rights are held exclusively by members of the human species. (shrink)

This paper argues that some of the misunderstandings surrounding the meaning and function of the concept of human dignity in bioethics arise from a lack of distinction between two different roles that this notion plays: one as an overarching policy principle, and the other as a moral standard of patient care. While the former is a very general concept which fulfils a foundational and a guiding role of the normative framework governing biomedical issues, the latter reflects a much more concrete (...) and context-specific understanding of the patient as a “person”. The importance of dignity as a policy principle will be described by appealing to the distinction between principles and rules as developed by some legal philosophers. The value of dignity as a standard of patient care will be illustrated with the help of concrete examples and by drawing on the taxonomies of dignity proposed by Jonathan Mann and other scholars. The overall scope of the article is to highlight this double and complementary role of human dignity in bioethics. (shrink)

Police and authorities have increasingly adopted "command and control" strategies to the policing of intentionally peaceful protest crowds. These strategies work to close down access to a physical space in which a protest is to occur and thus in turn they effectively restrict the capacity of a citizen to engage in the democratic right of peaceful protest.

According to a widely held view, people's commitments to laws are dependent on the existence in their community of a conventional practice of complying with certain fundamental laws. This conventionalism has significantly hampered our attempts to explain the normative practice of law. Ronald Dworkin has argued against conventionalism by bringing up the phenomenon of persistent fundamental legal controversies, but neither Dworkin nor his legal positivist respondents have correctly understood the real significance of such controversies. This article argues that such controversies (...) pose a deep challenge to any conception of our legal practice as a genuinely normative, rule-mediated, practice. The article also argues that what is needed to deflect this challenge is a new understanding – different from the widely held conventionalist understanding – of how people's commitments to laws are predicated on their fellows’ like commitments. (shrink)

. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally (...) employ when they say that they are merely applying the law‐giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously. (shrink)

The paper argues against the polarisation of the health economics literature into pro- and anti-QALY camps. In particular, we suggest that a crucial distinction should be made between the QALY measure as a metric of health, and QALY maximisation as an applied social choice rule. We argue against the rule but for the measure and that the appropriate conceptualisation of health-care rationing decisions should see the main task as the integration of competing and possibly incommensurable normative claim types. We identify (...) the main types as consequences, rights, social contracts, individual votes and community values and note situations in which the contribution of each claim type is limited. We go on to show that the integration of (at least some of) these claim types can be formalised within the mathematical framework provided by non-linear programming. (shrink)

New Zealand is one of two OECD countries in the world where direct-to-consumer advertising of prescription medicine (DTCA-PM) is permitted. Increase in such activity in recent years has resulted in a disproportionate increase in dispensary volume of heavily advertised medicines. Concern for the potential harm to healthcare consumers and the public healthcare system has prompted the medical profession to call for a ban on DTCA-PM as the best way of protecting the public interest. Such blanket prohibition however also interferes with (...) the public’s right of access to information. This paper will examine if banning DTCA-PM would constitute a justified form of paternalism in the context of today’s New Zealand. (shrink)

Much of the debate over the justice of immigration restrictions focuses on their impact on would-be migrants. Restrictionists often focus on potentially harmful effects of immigration on residents of receiving countries. This article cuts across this long-standing debate by outlining ways in which immigration restrictions inflict harm on natives, specifically by undermining their economic liberty. It covers both the libertarian “negative” view of economic freedom and the “positive” version advanced by left-liberals. Section 1 focuses on “negative” economic freedom. It shows (...) that migration restrictions massively restrict the negative economic liberty of natives. Section 2 takes up “positive” theories of economic freedom; here, too, there are massive effects. Finally, section 3 describes how to address potentially harmful side effects of migration that might undermine economic liberty. (shrink)

In a previous article, I defended the standard picture of law (or SP), so labeled by its foremost critic, Mark Greenberg. In that article, I addressed Greenberg's root-and-branch critique of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attacking the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be challenged (...) here, because if they are correct, the SP is not a tenable account of law. (shrink)

Abstract.The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of (...) poor countries with the problem of fast population growth. He argues that a coherent goal‐rights system which accommodates rights among others goals, can overcome the non‐consequential arguments and justify the force of moral rights fully within a consequentiality perspective. (shrink)

In this article, we will discuss Civil Disobedience as a tool for non-violent protests. We will analyze the ideas from Thoreau to Kant, including the thoughts of Gandhi and Dworkin, verifying the effectiveness, or lack thereof, of their arguments in the political world. With regard to Dworkin and Gandhi, both inspired by Thoreau's thought, civil disobedience to norms provided a change in the political scenario, capable of effecting a mediation of conflicts through non-violence. Kant's perspective, in turn, presents the hypothesis (...) of peaceful resistance when the norms do not correspond to the proposed expectations, the general rule being the idea of respect and obedience to the law. Finally, to conclude this article, we will highlight the writings of Thoreau, Gandhi, Dworkin, and Kant, to postulate that civil disobedience must be linked to the criteria of non-violence, peace, justice, and legitimacy. (shrink)

McGowan argues “that ordinary utterances routinely enact norms without the speaker having or exercising any special authority” and thereby not “merely cause” but “constitute” harm if harm results from adherence to the enacted norms. The discovery of this “previously overlooked mechanism,” she claims, provides a potential justification for “further speech regulation.” Her argument is unsuccessful. She merely redefines concepts like “harm constitution” and “norm enactment” and fails to explain why speech that “constitutes” harm is legally or morally problematic and thus (...) an initially more plausible target for speech regulation than speech that “merely causes” harm. Even if she could explain that, however, her account would still be incapable of identifying cases where utterances “constitute harm.” This is so for two reasons. First, she provides neither analytical nor empirical criteria for deciding which so-called “s-norms” have been enacted by an “ordinary utterance.” Second, even if such criteria could be provided, there is no epistemically available means to distinguish whether harm has ensued due to adherence to the enacted s-norms or through other mechanisms. Given this lack of criteria and practical applicability, there is no way that this account could serve as a principled basis for speech regulation – it could only serve as a pretext for arbitrary censorship. (shrink)

Businesses increasingly rely on algorithms that are data-trained sets of decision rules (i.e., the output of the processes often called “machine learning”) and implement decisions with little or no human intermediation. In this article, we provide a philosophical foundation for the claim that algorithmic decision-making gives rise to a “right to explanation.” It is often said that, in the digital era, informed consent is dead. This negative view originates from a rigid understanding that presumes informed consent is a static and (...) complete transaction. Such a view is insufficient, especially when data are used in a secondary, noncontextual, and unpredictable manner—which is the inescapable nature of advanced artificial intelligence systems. We submit that an alternative view of informed consent—as an assurance of trust for incomplete transactions—allows for an understanding of why the rationale of informed consent already entails a right to ex post explanation. (shrink)

In this article, the authors review some contemporary cases where biotechnologies have been employed, where they have had global implications, and where there has been considerable debate. The authors argue that the concept of dignity, which lies at the center of such documents as the 2005 Universal Declaration on Bioethics and Human Rights, the International Declaration on Human Genetic Data (2003) and the Universal Declaration on the Human Genome and Human Rights (1997) is useful, if not necessary, in engaging in (...) decision making in relation to the moral evaluation of biotechnologies on a global scale. (shrink)

“One who elects to serve mankind by taking the law into his own hands thereby demonstrates his conviction that his own ability to determine policy is superior to democratic decision making. [Defendants’] professed unselfish motivation, rather than a justification, actually identifies a form of arrogance which organized society cannot tolerate.” Those were the words of Justice Harris L. Hartz at the sentencing hearing of three nuns convicted of trespassing and vandalizing government property to demonstrate against U.S. foreign policy. Citizens engaging (...) in civil disobedience are indeed at times accused of being arrogant because they apparently think their own political judgment is superior to that of the democratic majority. This paper examines and evaluates the claim that dissenters are epistemically arrogant. Contrary to the dominant viewpoint in the literature, I argue that epistemic arrogance involves inflating the epistemic worth of one’s view. Indeed, the most plausible charge against civil dissenters consists of two claims: (A) civil dissenters have a higher degree of rational certainty in P than is warranted, and (B) civil dissenters use a method of expression that requires a higher level of rational certainty than is warranted in the propositions that their political view is right and the injustice they fight is substantial. I argue that civil disobedience does not necessarily involve epistemic arrogance. Whether an act of civil disobedience evinces epistemic arrogance has to be determined on a case-by-case basis depending on the extent to which each dissenter lives up to (A) and (B). (shrink)

La igualdad política es uno de los presupuestos fundantes de todo Estado democrático de derecho: se trata de un principio ordenador de la praxis democrática de los diversos poderes políticos y jurídicos del Estado. En este marco, trabajos recientemente publicados que analizan este tema se orientan a justificar la necesidad de su implementación tanto desde el punto de vista individual de los ciudadanos, como así también desde una perspectiva socio-histórica y jurídica que tiene en cuenta el ordenamiento democrático-institucional que, paradójicamente, (...) en ocasiones fomenta la desigualdad. El presente trabajo se propone contribuir a la discusión de este problema desde los presupuestos filosóficos de la democracia deliberativa, cuyo sentido reconstructivo y planteamiento teórico permiten fundamentar el principio de igualdad, y otorgar mayor respaldo conceptual a las pretensiones normativas de su reconocimiento. ARK: ark:/s18537960/8maie3o1r. (shrink)

The will theory of rights has so far been considered incapable of capturing individual rights under criminal law. Adherents of the will theory, therefore, have defended the claim that criminal law does not assign rights to individuals. In this article I argue first, that criminal law does assign individual rights and second, that the will theory of rights may enhance our understanding of these rights. The two major implications of the account are: a volenti non fit iniuria principle for criminal (...) law, and a theoretical framework for an idea of punishment as restitution. (shrink)

This article start from two opposing intuitions in the environmental duties debate. On the one hand, if our lifestyle causes environmental harm, then we have a duty to reduce that impact through lifestyle changes. On the other hand, many people share the intuition that environmental duties cannot demand to alter our lifestyle radically for environmental reasons. These two intuitions underlie the current dualism in the environmental duties debate: those arguing for lifestyle changes and those arguing that our duties are limited (...) to promoting just environmental institutions. The paper has two goals: first, to grasp the underlying reasons for the two intuitions, and, second, to provide a proposal that integrates both intuitions. The paper consists of two main parts. The first part examines the ‘our-duties-should-be-limited’ intuition. Two interpretations are discussed, one under the title ‘what I do make no difference’, dealing with causality and collective action, and one under the title ‘my duty cannot be to change my lifestyle completely’, which discusses demandingness, fairness and value conflict. The second part shows how the ‘lifestyle-matters’ intuition can still play an important role. This part consists of two sections, one on ‘how to make a difference’, which deals with the idea of a cooperative ethos, and the other with ‘why lifestyle matters’, discussing expressive rationality and integrity. These ideas allow giving an important place to lifestyle duties, while avoiding the possible counterproductive effect of a private duties account. (shrink)

Increasingly, protests occur across borders and are carried out by non-nationals. Many of these protests include elements that break the laws of their host country and are aimed at issues of global concern. Despite the increasing frequency of transnational protest, little ethical consideration has been given to it. This article provides a cosmopolitan justification for transnational disobedience on behalf of self and others. The article argues that individuals may be justified in illegally protesting in other states, and that in some (...) circumstances they may do so even when laws have been legitimately constituted by the domestic constituencies of those states. Using a cosmopolitan reading of the notion of civility and of the civil realm, the article argues that transnational protests are capable of conforming to the normative and conceptual standards necessary for them to be labelled civil disobedience. As a result, they ought to carry a privileged moral status compared with other forms of protest. The article applies the All Affected Principle to argue that a democratic deficit can provide transnational protesters and resident migrants with a right to civil disobedience even where that right is not held by members of the demos they protest within. (shrink)

This paper shows how two models of precedential constraint can be broadened to include legal information represented through dimensions. I begin by describing a standard representation of legal cases based on boolean factors alone, and then reviewing two models of constraint developed within this standard setting. The first is the “result model”, supporting only a fortiori reasoning. The second is the “reason model”, supporting a richer notion of constraint, since it allows the reasons behind a court’s decisions to be taken (...) into account. I then show how the initial representation can be modified to incorporate dimensional information and how the result and reason models can be adapted to this new dimensional setting. As it turns out, these two models of constraint, which are distinct in the standard setting, coincide once they are transposed to the new dimensional setting, yielding exactly the same patterns of constraint. I therefore explore two ways of refining the reason model of constraint so that, even in the dimensional setting, it can still be separated from the result model. (shrink)

This article explores the relevance of the work of Cambridge historian of political thought István Hont to contemporary political theory. Specifically, it suggests that Hont’s work can be of great help to the recent realist revival in political theory, in particular via its lending support to the account favoured by Bernard Williams, which has been a major source for recent realist work. The article seeks to make explicit the main political theoretic implications of Hont’s historically-focused work, which in their original (...) formulations are not always easy to discern, as well as itself being a positive contribution to realist theorizing, moving beyond a merely negative critique of dominant moralist positions. (shrink)

Contemporary theorists tend to think that the basic justification of human rights is instrumental, as efficient means for producing the theorist's preferred ultimate value or values. Contemporary theorists also tend to think that human rights have a distinctive normative force, correlating with categorical duties. This article shows that instrumentalist accounts of human rights face a dilemma. The very structure of any instrumentalist account means that such an account faces extraordinary difficulties accommodating categorical duties to respect the human rights of others. (...) If so, one should either reject instrumentalism about human rights or do away with categorical duties. But doing away with categorical duties comes at a high cost. The dilemma, then, should question the prevalent assumption that instrumentalist accounts of human rights can accommodate categorical duties. The dilemma should serve either to sharpen instrumentalist theories or to motivate non-instrumentalism about human rights. (shrink)

Michael Naish; Education and Essential Contestability Revisited, Journal of Philosophy of Education, Volume 18, Issue 2, 30 May 2006, Pages 141–153, https://doi.

It seems to me that those who place great value on the right to human freedom can be badly divided on the question of the use of force by states to defend the liberties of those who are not citizens of that particular state. Concerned about the liberties to be defended, they might be enthusiastic supporters of the use of such force by liberty-loving countries throughout the world. Concerned about the liberties that might be violated when the state marshals its (...) forces for use internationally, they might adopt a more isolationist approach to this issue. This paper is an attempt to help clarify this conflict by looking at some of the philosophical issues it raises. Because I wish to avoid factual debates about current conflicts, I will give no real-life examples. However, they are on my mind, and I hope the reader will keep them in mind as well. (shrink)

What role should the state have in recognizing and regulating marriage? Until recently, liberal political theorists paid little attention to this question. Yet the challenges that the public–private boundary-crossing institution of marriage poses to liberalism are substantial. Tensions in contemporary debates suggest that these challenges remain unaddressed and thus, invite attempts to formulate a coherent and compelling model of the relationship between marriage and the liberal state. This article responds to this invitation. Marriage has long been a concern of at (...) least some liberal thinkers. Typically they focused on the dual character of marriage, or its role in producing gender inequality. While these critical insights are essential to any adequate account of marriage and the state, they are only part of the picture. To grasp the sources of confusion and silences in contemporary debates, and formulate a robust liberal model of marriage and the state, we must examine the functions — intended and effective — of public recognition of marriage. This examination highlights the relevance to the marriage-state relationship of familiar liberal approaches to negotiating the religion-state relationship. Drawing on these approaches and liberal feminist thought, I sketch a model of marriage and the state that aims to expand the area of protected freedom without sacrificing equality, fairness or marriage. Under the model I propose, marriage would be disestablished. The state would neither confer marital status, nor use 'marriage' as a category for dispersing benefits. Legitimate public welfare goals currently treated through marriage would be addressed through an intimate caregiving union status. (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.

J’aborde tout d’abord l’objection relativiste aux droits humains, afin de pouvoir ensuite me concentrer sur d’autres questions soulevées par la question des droits humains et des minorités culturelles. Le but de ma discussion est d’identifier et d’interroger les tensions potentielles entre minorités culturelles et droits humains, afin de montrer en quoi les droits humains peuvent protéger les minorités culturelles et, ultimement, de problématiser la manière dont cette protection peut se déployer. Dans ce but, je commence par clarifier deux notions-clés de (...) ce débat : les minorités culturelles et les droits différenciés selon l’appartenance à un groupe, en en proposant une typologie. J’examine ensuite dans quelle mesure les aspects collectiviste et particulariste des droits différenciés se trouvent ou non en tension respectivement avec les aspects individualiste et universaliste des droits humains. Prenant comme points de référence quelques droits humains particuliers, je me penche enfin sur la situation de certaines minorités culturelles dans les démocraties libérales occidentales pour dégager les conditions délibératives de la réalisation de ces droits humains. Au fil de ces trois sections, une de mes préoccupations est de mettre en lumière les enjeux méthodologiques qui sous-tendent ces différents débats et de montrer la nécessité d’adopter une approche améliorative. I first address the relativist challenge to human rights, so as to be able to focus next on other questions raised by the question of human rights and cultural minorities. The aim of my discussion is to identify and to question the potential tensions between cultural minorities and human rights, in order to show how human rights can protect cultural minorities, and ultimately to problematize the way in which this protection can take place. To that end, I start by clarifying two key notions in this debate : cultural minorities and group-differentiated rights, by proposing a typology. I then examine to what extent the collectivist and the particularist aspects of group-differentiated rights are in tension respectively with the individualist and the universalist aspects of human rights. Taking as reference points a few particular human rights, I turn, finally, to the situation of certain cultural minorities in western liberal democracies to draw out the deliberative conditions of the realization of those human rights. Throughout all three sections, one of my concerns is to shed light on the methodological stakes underlying those different debates and to show that we should adopt an ameliorative approach. (shrink)

Contemporary society is in the grip of contractual thinking. Realities are interpreted in contractual terms, and goals are formulated in terms of rational contracts. The leading current conceptions of rationality begin with assumptions that human beings are independent, self-interested or mutually disinterested, individuals; they then typically argue that it is often rational for human beings to enter into contractual relationships with each other.

Islamic building codes require mosques to face Mecca. The further Islam spreads, the more apt are believers to fall into a quandary. X faces Y only when the front of X is closer to Y than any other side of X. So the front of the mosque should be oriented along a shortest path to Mecca. Which way is that? Does the path to Mecca tunnel through the earth? Or does the path follow the surface of the earth?

Law has variously been described as part of empirical social reality or as a set of normative prescriptions defining desirable conduct. The author takes the view that a legal system normally represents an amalgam of “is” and “ought” elements. It is operative in part as a living law of actual human conduct, in another part as an instrumentality for transforming unfulfilled social ideals or goals into reality. A different blending of “is” and “ought” factors often occurs in the judicial process, (...) when an application of given legal norms is combined with some injection of law deemed desirable by the judges. (shrink)

Is it possible to use the courts - or rights instruments - to advance fair access to health care? This article examines this question within the context of the Norwegian public health care system - one special example of the Scandinavian welfare system. In particular, it asks four basic questions: What are the normative justifications for rights to health care? What were the political processes and concerns leading up to the current Patients Rights Act in Norway? What kind of legal (...) status do these rights have? How can rights to access be implemented?Patient rights do not only concern the right to access to health care; they also include the right to information, the right to participate in decision-making, and informed consent. This article examines only the former aspect, the use of the legal system to secure access to prioritized specialized health care services. (shrink)

Despite the relative ease and regularity with which it is used by policymakers and the functional role that it often plays in the policy development process, the concept of reasonableness has essentially been overlooked by public policy scholars in their analysis of the factors influencing the development of public policy. However, the maintenance of the analytical status quo is likely to prove increasingly difficult. As the issues that governments must address become increasingly complicated and controversial and it becomes correspondingly more (...) difficult to identify easily or clearly the most appropriate response to associated problems, policymakers will inevitably be forced to place greater reliance on the concept of reasonableness as the final court of appeal when seeking to determine the attractiveness and acceptability of policy decisions. Accordingly, it seems ‘reasonable’ to suggest that greater, explicit consideration be given to the concept of reasonableness and the role it does and should play in the development of public policy. This article simultaneously offers both a brief overview of the current situation with respect to the meaningful consideration of the concept of reasonableness by public policy scholars and practitioners and a preliminary argument for a reconsideration of the analytical status quo. (shrink)

Increased and active involvement of multinational corporations in the promotion of social welfare, in developing countries in particular, through the facilitation of partnerships and cooperation with public and nonprofit sectors, challenges the existing framework of our social and political institutions, the boundaries of nation-states, the distinction between the private and public spheres of our lives, and thus our freedom. The blurring of certain distinctions, which ought to be observed between the political and the economic is most manifest in the gradual (...) saturation of the field of business ethics with rights-based arguments and analyses. In this article, I first argue against endorsing positive rights as having the same status as negative rights, and then try to demonstrate that, with the transportation of 'rights talk' into business ethics, the dangers of conflating positive and negative rights are superimposed on the dangers of conflating the private and the political. I conclude by presenting my own stance on the debate on what our basic institutionally sanctioned rights should be, and what the corresponding duties of multinational corporations really are. (shrink)

In this essay, I address the question of whether the indisputable progress being made by the neurosciences poses a genuine threat to the language game of responsible agency. I begin by situating free will as an ineliminable component of our practices of attributing responsibility and holding one another accountable, illustrating this via a discussion of legal discourse regarding the attribution of responsibility for criminal acts. I then turn to the practical limits on agents' scientific self-objectivation, limits that turn out to (...) be mirrored philosophically in the conceptual problems that plague reductionist strategies. Having shown that free will is rooted in unavoidable performative presuppositions belonging to agents' participant perspective, I then take up the difficult issue of how to reconcile an epistemic dualism of participant and observer perspectives with the assumption of ontological monism. I critically review a range of proposed physicalist solutions, including non-reductionist and (standard) compatibilist approaches. An underlying problem with scientistic, physicalist approaches is the methodological fiction of an exclusive ?view from nowhere? which relies on the problematic move of disengaging the objectivating perspective of the scientific observer from the investigators' participant perspective of those engaged in scientific practice. Since there is no way of getting around the requisite complementarity of both the observer's encounter with the objective world and the participant's involvement in shared lifeworld practices, the remaining option is to take an epistemological turn. But even the recognition that science is ultimately constituted from within the lifeworld still leaves us with the question as to how the human mind can understand itself as the product of natural evolution. I conclude with some tentative suggestions as to how this difficult question might be addressed. (shrink)

Ratio Juris, Volume 34, Issue 4, Page 356-385, December 2021.

The “right not to know” has generated significant discussion, especially regarding genetic information. In this paper, I argue that this purported right is better understood as a preference and that treating it as a substantive right has led to confusion. To support this claim, I present three critiques of the way the right not to know has been characterized. First, I demonstrate that the many conceptualizations of this right have hampered debate. Second, I show that the way autonomy is conceptualized (...) in this literature is also problematic. Third, I examine the notion of a right in more detail, to support my third critique: that the right to know and the right not to know genetic information are often erroneously treated as having equivalent status. On my understanding, the claim being made is better thought of as a preference, not a right, and a preference not to know certain information becomes only one of several considerations relevant to medical decision making. (shrink)

: In this paper I offer some criticisms of Jonathan Dancy’s moral particularism. In Dancy’s version moral particularism states that there are neither general nor universal moral principles, that moral action is not the application of principles to particular cases, that moral reasoning has no motivational force because it deduces what must be done by moral principles, and that the agent who acts morally is not a person who has moral principles. However, Dancy’s proposal fails to explain the regularity of (...) moral behavior and the function of stability that moral agents and moral psychology play within social cooperation, nor is it able to explain the possibility of moral progress. Keywords: Jonathan Dancy; Moral Progress; Moral Psychology; Principles; Cooperation La mente morale particolarista Riassunto: In questo articolo espongo alcune critiche al particolarismo morale di Jonathan Dancy. Nella versione di Dancy il particolarismo morale afferma che non ci sono né principi morali generali né universali, che l’azione morale non è l’applicazione di principi a casi particolari, che il ragionamento morale non ha forza motivazionale perché deduce ciò che deve essere fatto dai principi morali, e che l’agente che agisce moralmente non è una persona che ha principi morali. Tuttavia, la proposta di Dancy non riesce a spiegare la regolarità del comportamento morale e la funzione di stabilità che gli agenti morali e la psicologia morale svolgono all’interno della cooperazione sociale, né è in grado di spiegare la possibilità del progresso morale. Parole chiave: Jonathan Dancy; Progresso morale; Psicologia morale; Principi; Cooperazione. (shrink)

This paper is my contribution to round three of a longstanding debate between Robert Alexy and me about the principles theory’s concept of principle. In the first round, Alexy—bucking tradition—proposed a nongradualist distinction between rules and principles that divided the ontology of norms into two categorically distinct norm‐types. He connected this norm‐theoretical analysis with a theory of fundamental rights according to which such rights had to be understood as principles and thus interpreted as optimization requirements. In the first round I (...) objected to the norm‐theoretical assumptions and questioned the doctrinal merit of the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and above optimization requirements, which by that time Alexy, too, regarded as rules. In round two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought, which he defined as a command to be optimized. In this second round, I criticized the new attempt to save his view of principles on the ground that the norms Alexy had in mind optimized not commands but states of affairs and thus were ordinary norms or rules according to the misguided taxonomy of the principles theory. Alexy opened round three of our exchange by admitting that my critique of round two was justified and that he had erred in identifying principles as ideal commands to be optimized. He now proposes an index theory of principles. In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s latest innovation. (shrink)

In this volume, leading scholars in Asian and comparative philosophy take the work of Joel J. Kupperman as a point of departure to consider new perspectives on Confucian ethics. Kupperman is one of the few eminent Western philosophers to have integrated Asian philosophical traditions into his thought, developing a character-based ethics synthesizing Western, Chinese, and Indian philosophies. With their focus on Confucian ethics, contributors respond, expand, and engage in critical dialogue with Kupperman’s views. Kupperman joins the conversation with responses and (...) comments that conclude the volume. (shrink)

If one is an egalitarian, what should one want to equalize? Opportunities or outcomes? Resources or welfare? These positions are usually conceived to be very different. I argue in this paper that the distinction is misconceived: the only coherent conception of resource equality implies welfare equality, in an appropriately abstract description of the problem. In this section, I motivate the program which the rest of the paper carries out.

This paper examines the political philosophy of Liberalism with particular focus on the principles of liberal neutrality and value pluralism. These principles, which are advocated by the most prominent contemporary liberal theorists mark a significant departure from classical liberalism and its monistic approach to seeking truth and the good. I argue that the shift to neutrality and pluralism have done a disservice to liberalism and that the cultivation of discrimination skills is needed to deal with the complex tasks of making (...) decisions intelligently and effectively. (shrink)

Abstract.This paper seeks to suggest a jurisprudential grounding for the European Community, and seeks to do so by using a specifically Kantian philosophy of law. Kant's observations on the nature of transnational orders, like so much of his political theory, have tended to be overlooked. To do so is to overlook one of the great political and jurisprudential treasures in modern western thought. It will be suggested that a proper understanding of a Kantian normative order, and the application of such (...) a model to the European Community will serve to dispel much of the confusion and sometimes near histrionic commentaries which have characterised recent attempts to understand the jurisprudence of the Community. (shrink)

Ethical guidelines for multinational corporations are included in several international accords adopted during the past four decades. These guidelines attempt to influence the practices of multinational enterprises in such areas as employment relations, consumer protection, environmental pollution, political participation, and basic human rights. Their moral authority rests upon the competing principles of national sovereignty, social equity, market integrity, and human rights. Both deontological principles and experience-based value systems undergird and justify the primacy of human rights as the fundamental moral authority (...) of these transnational and transcultural compacts. Although difficulties and obstacles abound in gaining operational acceptance of such codes of conduct, it is possible to argue that their guidelines betoken the emergence of a transcultural corporate ethic. (shrink)

The aim of this paper is to show that Mexico is leading the current trend of recognizing non-human animals as subjects of rights by acknowledging them citizenship rights. In the paper it is argued that a recent resolution by Mexico’s Supreme Court regarding a local legislation must be interpreted as conceding citizenship rights to the non-human animals living in the state where that legislation applies. The paper starts by discussing the context in which the relevant law was discussed and approved, (...) and the judiciary actions taken against it. Then, it discusses the analysis and resolution carried out by the Supreme Court of the rights involved and the dynamics among them, the paper also includes a defense of this resolution. Furthermore, the paper argues that the protections established by this resolution must be interpreted, according to the contemporary academic theories regarding citizenship and animal rights, as rights and that these rights must also be interpreted as citizenship rights. The paper ends by replying to some objections and drawing some general conclusions. (shrink)

In this essay both the facts/values and facticity/normativity divides are considered from the perspective of global semiotics and with specific regard to the relationships between legal meaning and spatial scope of law’s experience. Through an examination of the inner and genetic projective significance of categorization, I will analyze the semantic dynamics of the descriptive parts comprising legal sentences in order to show the intermingling of factual and axiological/teleological categorizations in the unfolding of legal experience. Subsequently, I will emphasize the translational (...) and enactive cognitive disposition underlying the construction of the second premise of the so-called judiciary syllogism and thereby the untenability of the idea that ‘law makes its facts.’ Hence, I will try to bring to the fore the cultural pre-assumptions encapsulated in the positivistic and therefore also formalistic or analytical approaches to legal experience and the loss of their inner consistency when legal experience confronts the phases and major changes of global semiotics. Finally, I will strive to relativize the opposition between the positivist and non-positivistic theories of law in view of an understanding of legal experience focused not only, or at least not primarily, on what ‘law is’ but also on ‘how’ it unwinds through, and _in spite of_, environmental and semantic transformations. (shrink)