The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire legal system. (...) But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world. (shrink)

No one has the right to say what should be done to their body after deathIn my opinion any concept of property in the human body either during life or after death is biologically inaccurate and morally wrong. The body should be regarded as on loan to the individual from the biomass, to which the cadaver will inevitably return. Development of immunosuppressive drugs has resulted in the cadaver becoming a unique and invaluable resource to those who will benefit from organ (...) donation. Faced with the biological reality, the moral error of any concept of property in the body, and the quantitative failure of voluntary organ donation, I believe that the right of control over the cadaver should be vested in the state as representative of those who may benefit from organ donation.How one regards the dead human body, the cadaver, is in part governed by one’s familiarity with it. At the present time, very few people ever see a cadaver which has not in some way been altered after death, and even fewer touch, handle, deal in any way with the dead human body. In developed countries, death itself most frequently occurs away from the home, in an institution, under the supervision of professional caregivers. For most people, ideas concerning the cadaver, its nature, the proper way to deal with it, are formed under these conditions.As a pathologist specialising in forensic pathology, for 50 years I have been at the other end of the spectrum of experience. In my daily work I have been privileged to examine the cadaver in all its stages after death from the immediate postmortem moments through all the stages of decomposition to bare bones. Working in a relatively small community, I have sometimes been charged with examining the body of someone I …. (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)

Graham Haydon; Collective Moral Philosophy and Education for Pluralism, Journal of Philosophy of Education, Volume 20, Issue 1, 30 May 2006, Pages 97–106, https.

Behaviorism is consistent with the assumptions of perfect competition, with the homo economicus model, and with a form of ethics that enshrines market-based notions of utility, justice, and rights and encourages rational maximizing. Economics and business courses foster this deficient form of ethics, assuming an overriding desire for money, which, according to MacIntyre and Aristotle, crowds out the associative virtues. These beliefs, often associated with Taylor and Friedman, lead to such practices as incentive compensation, which would be effective only if (...) employees were homines economici and thus rational in the sense of knowing how to satisfy whatever desires they have. Against Davidson’s view that psychology cannot be a natural science, Aristotle believes that there can be a teleological, if not exact, science of behavior. Aristotle believes that emotions and objectives may be rational or irrational. But rationality—phronesis, practical wisdom—is not a matter of applying algorithms. Doris questions whether character generates the first premises of an agent’s practical syllogisms, while Haidt has argued that we often act on emotions rather than on the basis of the reasons that we claim motivate us. Aristotle agrees that many people are not virtuous and that weakness of the will is a common occurrence, and he agrees that emotion drives actions. But if you are virtuous, your emotions and desires support your rationality. Aristotle gives us reason to reject the notion that people are homines economici and to treat them as rational deliberators, in part by creating an appropriate culture. The claim that it is in the nature of human beings to deliberate rationally is in part aspirational, but also in part scientific—in Aristotle’s modest sense. (shrink)

This paper argues that the Quality Adjusted Life Year or QALY is fatally flawed as a way of priority setting in health care and of dealing with the problem of scarce resources. In addition to showing why this is so the paper sets out a view of the moral constraints that govern the allocation of health resources and suggests reasons for a new attitude to the health budget.

This paper discusses the attempt in this issue of the journal by Peter Singer, John McKie, Helga Kuhse and Jeff Richardson, to defend QALYs against the argument from double jeopardy which I first outlined in 1987. In showing how the QALY and other similar measures which combine life expectancy and quality of life and use these to justify particular allocations of health care resource, remain vulnerable to the charge of double jeopardy I am able to clarify some of the central (...) issues concerning the value of life. In particular, the idea that the value of a life varies with its life expectancy and with its quality, understood in terms of its richness, variety, success etc, is subjected to special examination. It is shown how defenders of QALYs are committed to the view that so far from all lives being of equal value, all lives are necessarily of subtly different value. The paper then analyses the use to which the notorious 'veil of ignorance' has been put both by Singer et al and by others and shows how this device of John Rawls's cannot do the work so often assigned to it. The paper then considers the issue of hypothetical consent and the role that it can play in justifying disposing of the lives of people who have not in fact consented to their lives being disposed of in particular ways. Finally, the paper makes some points about the comprehensive nature of the data collection and storage which would be required by QALY advocates and points out the independent problems attaching to licensing such comprehensive collection and use of personal data. (shrink)

The article raises the issue of ‘the right to be ill’, formulated by Tadeusz Kielanowski, a Polish physician and humanist. According to him, the right to health should be supplemented by the principle which would serve the protection of people with diseases or disabilities. One-sided interpretation of ‘the right to health’ may result in various forms of intolerance and discrimination. This paper presents what dangers Kielanowski recognized and explains why his approach was considered to be a novelty; what the idea (...) of ‘the right to be ill’ is, how the need for it is substantiated. This idea is considered in the context of human rights and it constitutes a starting point for the reflection on social phenomena connected with medicine. Taking into account the changes in medical ethics and culture which have taken place in the recent decades the question has been asked—is it worth talking about the right to be ill these days? Giving positive answers to this question, the spheres and issues that have been presented can be analyzed and assessed from the perspective of the right to be ill. (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)

Work on analogy has been done from a number of disciplinary perspectives throughout the history of Western thought. This work is a multidisciplinary guide to theorizing about analogy. It contains 1,406 references, primarily to journal articles and monographs, and primarily to English language material. classical through to contemporary sources are included. The work is classified into eight different sections (with a number of subsections). A brief introduction to each section is provided. Keywords and key expressions of importance to research on (...) analogy are discussed in the introductory material. Electronic resources for conducting research on analogy are listed as well. (shrink)

This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the “ultimate” rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. (...) Some of these possibilities pose genuine difficulty for Hart's basic theory and help illuminate the relation of conventional and normative elements in an adequate account of law, a subject addressed in the final section of the essay. (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)

David Gordon; Rules and the Effectiveness of the Hidden Curriculum, Journal of Philosophy of Education, Volume 17, Issue 2, 30 May 2006, Pages 207–218, https://.

The government itself, which is the only mode which the people have chosen to execute their will, is equally liable [with the standing army] to be abused and perverted before the people can act through it. Witness the present Mexican war, the work of comparatively a few individuals using the standing government as their tool; for, in the outset, the people would not have consented to this measure. Henry Thoreau, in “Civil Disobedience” It is easy to say — and often (...) is said — that we cannot have tolerable relations with new revolutionary regimes. The problem is that our anticommunist paranoia has made it impossible to find out. We do not know whether Mao's declared interest in a relationship with the Americans in the 1940s or Ho Chi Minh's were sincere. And the reason we don't know is that we never tried to find out. Those who reported it was a possibility were hounded out of the foreign service because of our suspicion and fear of communism. The legacy of that era brings to mind Ivan the Terrible's practice of murdering the bearer of bad news. We are more civilized than that; we have been content simply to ruin people's careers. J. William Fulbright, in The Price of Empire This poisonous thing I'm trying to describe is [a] characteristic way of dealing with criticism. It used to be enough to brand a critic as a radical or a leftist to make people turn away. Now we need only to call him a liberal. Soon “moderate” will be the M word, “conservative” will be the C word and only fascists will be in the mainstream. E. L. Doctorow, Brandeis Commencement, May 21, 1989 We have lived with violence for seven years It was not worth one single life But the patriot's fist is at her throat Her voice is in mortal danger... Adrienne Rich, “Natural Resources,” in Dream of a Common Language. (shrink)

Much of the most influential free speech scholarship emphasises that ‘political speech’ warrants the very highest standards of protection because of its centrality to self-governance. This central idea mitigates against efforts to justify the regulation of political speech and renders some egregiously offensive or harmful speech worthy of protection from a theoretical perspective. Yet paradoxically, in practice, in many liberal democracies such speech is routinely restricted. In this paper, I develop an argument that is compatible with both the argument from (...) democracy and the notion of political speech, and that can justify the regulation of hate speech, by joining an understanding of the constitutive role of speech in individuals’ lives derived from Nussbaum's capabilities theory with ideas of democratic deliberation and legitimation drawn from a Habermasian framework. This approach attends to the conditions required at an individual level for democratic legitimation to occur at a social level. It permits the development of a robust theoretical justification for the protection of a broad range of speech. It simultaneously provides a guiding framework for regulatory policy designed to ameliorate the effects of, and inhibit the expression of, that speech, which could imperil the conditions required for individuals to develop their own capabilities and which instantiates anti-democratic practice, and thus discourse, preventing the very communications required to perform democracy from being uttered. Thus, my argument also strengthens and transforms the argument from democracy as a justification for free speech protection more generally. (shrink)

The proposed reflection intends to present the problem of judicial adjudication as a substantially-axiologically founded autonomous moment on the practical realization of law, and to explore this understanding in confrontation with external exigencies, mostly teleologically determined—hence, beyond strict deductive application, as a syllogistic reference of facts to norms, and finalistically determined decision, as an option among possible alternatives to achieve specific aims. The main objective is to enter into a discussion on the methodological meaning of “integrity”, “hard cases” and “right (...) answer”, as presented by Ronald Dworkin, and a critical reflection on the criticism of that approach levelled by Neil MacCormick, so as to confront the relevance of principle and policy arguments, in order to bring about a different methodological approach, an alternative jurisprudentialist conception of adjudication, incorporating a practical-normative constitutive dialectics between legal controversy and legal system, such as that presented by Castanheira Neves. The focus will, then, be the legitimacy of the connection of arguments of principle and consequentialist arguments in adjudication, its selection and its justification, stating, therefore, a specifically assumed judicium, a judicative decision, having the legal system as its horizon of normative reference and of substantial and institutional autonomy. (shrink)

Cranston argued that scarcity makes universal welfare rights impossible. After showing that this argument cannot be avoided by denying scarcity, I consider four challenges to the argument which accept the possibility of conflicts between the duties implied by rights. The first denies the agglomeration principle; the second embraces conflicts of duties; the third affirms the violability of all rights-based duties; and the fourth denies that duties to compensate are overriding. I argue that all four challenges to the scarcity argument are (...) unsuccessful. I then discuss Eddy’s recent challenge, which makes welfare rights context dependent, but I argue that this also fails because it makes rights unknowable. I conclude that the scarcity argument, restated in the light of the discussion, shows that universal welfare rights, as ordinarily understood, are impossible and I explain the philosophical and practical significance of this conclusion. (shrink)

British accounts of medical ethics concentrate on confidentiality to the exclusion of wider questions of privacy. This paper argues for consideration of privacy within medical ethics, and illustrates through the television series `Hospital', what may go awry when this wider concept is forgotten.

Developments in fields as diverse as biotechnology, animal cognition, and computer science have cast serious doubt on the common belief that human beings are unique and that only they should have dignity and basic rights. A movement referred to as ‘new dignitarianism’ has recently reclaimed human dignity to fend off the threats to human uniqueness that it perceives to arise from these developments. This ‘new’ dignitarianism, however, is not new at all. Drawing on a debate between two Enlightenment philosophers, this (...) article shows that dignitarianism has already surfaced in the eighteenth century as the negative image of another movement: naturalism. Building on this historical account, I propose to understand dignitarianism and naturalism as opposing ideal-types on a normative spectrum. Doing so allows us to see a thus-far neglected problem, which I call the Zero-Sum Problem: any gains a concrete theory makes by approximating one ideal-type, it loses by moving away from the other. I end by showing how accepting this fact is a first step to more practically viable theories that attempt to find a middle ground between the two ideal-types. (shrink)

Th e a r ticl e e xplore s h o w globalizatio n i s assumin g a pr o g ress i v e emptyin g o f the s o v ereignt y o f natio n state s i n economic , political , institutional , social , cultura l an d l e gal aspects . Th e traditiona l l e ga l institution s ar e increasing ly g i vin g ris e (...) t o n ew non-stat e re- gulato r y source s (supranational , pr iv ate , technica l an d communitarian) . Th e resul t o f this po l ycentri c r e gulato r y compl e x i s th e co e xistenc e o f a d i v ersit y o f no r mat i v e order s and jurisdiction s i n v olvin g th e e xhaustio n o f th e l e ga l paradig m aroun d w hic h th e Stat e has st r ucture d it s institutions. (shrink)

As Confucian political thought is adapted to modern circumstances, the question of free expression merits more attention. Most contemporary Confucian political theorists accept a right to political...

This paper investigates how a performative understanding of a woman’s right to care can become part of a feminist politics which is able to transcend the well-worn dichotomies we find both within and without feminist literature, such as difference versus equality, difference versus repronormativity, and rights as freedom versus rights as domination. Drawing on my own research, I argue that claiming the right to care does not simply push women more deeply into motherhood resulting in even more control and regulation (...) of their lives, but that claiming care rights enables women to speak for themselves. Following the work of Linda Zerilli this paper argues that claiming women’s rights should, above all, be viewed as performative activities which contribute to democratic practices. (shrink)

The hypothesis of this paper is that legal positivism depends on the non plausibility of strong moral cognitivism because of the non necessary connection thesis between law and morality that legal positivism is supposed to acknowledge. The paper concludes that only when based on strong moral cognitivism is it consistent to sustain the typical non-positivistic thesis of the necessary connection between law and morality. Habermas’s Philosophy of law is confronted with both positions.

Labeling of food consumption is related to food safety, food quality, environmental, safety, and social concerns. Future politics of food will be based on a redefinition of commodity food consumption as an expression of citizenship. “Citizen-consumers” realize that they could use their buying power in order to develop a new terrain of social agency and political action. It takes for granted kinds of moral selfhood in which human responsibility is bound into human agency based on knowledge and recognition. This requires (...) new kinds of food labeling practices. Existing research on consumer’s preferences often fails to recognize the full complexity of the motivations and intentions through which the identity of the moral self is built up in relation to food consumption practices. For citizens, not only food production practices matter but also the impact of what we eat on who we are and the ecological foot print of our food stuff. Two major drivers for this are the idea that we ourselves have to take care of our own bodies (“We are what we eat”) and that we are responsible for Planet Earth. Since both obesity and climate change have become major public concerns, also governments develop an increasing interest in defining how citizens ought to behave as consumers and how retailers and producers should facilitate such responsible behavior. Since they are supposed to defend the “bonum commune,” e.g., the public health of their citizens and a sound common future for all, a new consensus on “appropriate” consumption choices has to be found, balancing beneficence and autonomy. (shrink)

The distinctly contemporary proliferation of pornography and hate speech poses a challenge to liberalism's traditional ideal of a 'marketplace of ideas' facilitated by state neutrality about the content of speech. This new study argues that the liberal state ought to depart from neutrality to meet this challenge.

From a pre-publication review by the late Austrian economist, Don Lavoie, of George Mason University: -/- "The book's radical re-interpretation of property and contract is, I think, among the most powerful critiques of mainstream economics ever developed. It undermines the neoclassical way of thinking about property by articulating a theory of inalienable rights, and constructs out of this perspective a "labor theory of property" which is as different from Marx's labor theory of value as it is from neoclassicism. It traces (...) roots of such ideas in some fascinating and largely forgotten strands of the history of economics. It draws attention to the question of "responsibility" which neoclassicism has utterly lost sight of. It is startlingly fresh in its overall approach, and unusually well written in its presentation. ... It constitutes a better case for its economic democracy viewpoint than anything else in the literature." . (shrink)

Dramatic changes or revolutions in a field of science are often made by outsiders or 'trespassers,' who are not limited by the established, 'expert' approaches. Each essay in this diverse collection shows the fruits of intellectual trespassing and poaching among fields such as economics, Kantian ethics, Platonic philosophy, category theory, double-entry accounting, arbitrage, algebraic logic, series-parallel duality, and financial arithmetic.

There has frequently been taken to be a tension, if not an incompatibility, between "externalist" theories of content (which allow the make-up of one's physical environment and the linguistic usage of one's community to contribute to the contents of one's thoughts and utterances) and the "methodologically individualist" intuition that whatever contributes to the content of one's thoughts and utterances must ultimately be grounded in facts about one's own attitudes and behavior. In this dissertation I argue that one can underwrite such (...) externalist theories within a methodologically individualistic framework by understanding semantic norms in terms of the need to reach, for each of one's terms, a type of "equilibrium." Each speaker's commitment to making her _own_ beliefs and applications consistent allows one to incorporate these 'external' factors into the contents of their thoughts and utterances in a way that remains methodologically individualistic. Methodologically individualistic accounts are typically taken to be unable to incorporate 'external' factors such as the world's physical make-up or communal usage because of arguments suggesting that the individual's own beliefs and usage underdetermine or even misidentify what, according to externalist accounts, they mean by their terms. These arguments, however, only seem plausible if one presupposes a comparatively impoverished conception of the individual's beliefs. The beliefs a speaker associates with a given term extend far beyond the handful of sentences they would produce if asked to list such beliefs. In particular, speakers have an implicit, but rich, understanding of their language, their world, and the relation between them. Speakers typically understand languages as shared temporally extended practices about which they can be, both individually and collectively, mistaken. Once this conception of language is taken into account, the ascriptions which purportedly forced 'non-individualistic' conceptions of content upon us (particularly ascriptions which seemed to tie what we meant to social use rather than our own beliefs) turn out to be ultimately grounded in the individual's own beliefs. Indeed, our self-conception does much more than merely underwrite 'non-individualistic' ascriptions.. (shrink)

When the United States Supreme Court used the expression “with all deliberate speed” in the case Brown v. Board of Education, it did so presumably because of its vagueness. Many jurists, economists, linguists, and philosophers accordingly assume that vagueness can be strategically used to one’s advantage. Roy Sorensen has cast doubt on this assumption by strictly differentiating between vagueness and generality. Indeed, most arguments for the value of vagueness go through only when vagueness is confused with generality. Sorensen claims that (...) vagueness – correctly understood – has no function in law inter alia because judges lie systematically when confronted with borderline cases. I argue that both claims are wrong. First, judges do not need to resort to lying when adjudicating borderline cases, and even if they had to, this would not render vagueness useless. Secondly, vagueness has several important functions in law such as the reduction of decision costs and the delegation of power. Although many functions commonly attributed to the vagueness of legal expressions are in fact due to their generality or other semantic properties, vagueness has at least these two functions in law. (shrink)

I argue that law is not best considered an essentially contested concept. After first explaining the notion of essential contestability and disaggregating the concept of law into several related concepts, I show that the most basic and general concept of law does not fit within the criteria generally offered for essential contestation. I then buttress this claim with the additional explanation that essential contestation is itself a framework for understanding complex concepts and therefore should only be applied when it is (...) useful to gain a greater understanding of uses of the concept to which it is applied (adducing criteria for making such judgments of usefulness). With that in mind, I then show that applying the appellation of essential contestation to the concept of law does not helpfully illuminate the most general concept of law (usually of most interest to legal philosophers) and therefore it should not be used, while allowing that it might be more useful for the related concept of the rule of law. (shrink)

Many of us have experienced a peculiar feeling of freedom, of the world being open before us. This is the feeling that is captured by phrases like “the freedom of the open road” and “free spirits,” and, to quote Phillip Larkin, “free bloody birds” going “down the long slide / To happiness, endlessly.” This feeling is associated with the ideas that my life could go in many different directions and that there is a vast range of things that I could (...) become. It arises in concert with a wide range of human experiences, including experiences of artistic creation, play, fun, and resistance to authority. This freedom of openness and spontaneity, which I call spontaneous freedom, is central to our ordinary talk about freedom. Yet it is a phenomenon largely ignored in discussions of freedom in contemporary moral philosophy. This is because moral philosophers are primarily concerned to identify the sort of freedom that is a prerequisite for moral responsibility, and so focus on deliberate, voluntary action rooted in rational choice. When moral philosophers do discuss spontaneous freedom, it is often to disparage it as, in the words of Harry Frankfurt, the freedom of “the wanton” whose liberty is merely that of “anarchic impulsive behavior.” My dissertation develops a theory of spontaneous freedom and of the role it does and should play in our lives, including our moral and political lives. I argue that, to do full justice to the human aspiration for freedom, moral and political theory must recognize the value of spontaneity. Through a study of characters from stories and films by Virginia Woolf, Saki, Akira Kurosawa, and Aman Sethi, I develop a phenomenological account of the nature of spontaneous freedom. I argue that we experience spontaneous freedom when we experience our actions as arising out of ourselves but not fixed in advance either by the decisions of other agents or by our own preexisting commitments or plans. I further argue that spontaneous freedom is valuable because it allows for the distinctive pleasure of feeling that one’s life is unforetold and that one is among the sources of novelty in the world, a feeling that is central to artistic creativity. It also affords solace from the anxiety associated with the inevitability of death. As with many experiences, like falling in love or seeing an alpine lake, experiences of spontaneous freedom are most valuable when they are veridical. But even the subjective experience of spontaneous freedom, I suggest, activates our awareness of and openness to possibility. Achieving this awareness, at least on occasion, is valuable because it provides us with a sense of our own psychological potential and sharpens a skill that contributes to practical deliberation. My claim that spontaneous freedom is valuable conflicts with a popular account of the self. According to that account—endorsed by a number of moral philosophers but most famously associated with Christine Korsgaard—the ideal self is one that is well-ordered, actively constituted through rational deliberation. Such integrity theories of the self are attractive because they provide an account of agency according to which ideal moral agents invariably endorse their own actions and beliefs. Integrity theories view freedom as involving rational, deliberative control of one’s actions. But I argue that integrity theories forbid well-constituted moral agents to seek out experiences of spontaneous freedom: such agents must act in a manner that they antecedently and reflectively endorse, while spontaneous freedom requires acting in a manner not antecedently fixed by one’s own decisions. Insofar as spontaneous freedom is a kind of freedom that we do and should value, my account exerts pressure on this standard view of agency and the self. My account of spontaneous freedom also has important political implications. One version of liberal theory holds that the only sort of political freedom worth having is the freedom of each individual to effectively exercise choice compatibly with every other individual doing likewise. On this picture, I have all of the freedom that I could want if I am able to choose autonomously and act in accordance with my choices. But I argue that a community that secures this liberal variety of freedom does not yet provide its members with all the freedom for which people rightly yearn. When public and private institutions arrange our circumstances in ways that make the courses of our lives predictable, our own choices about how to act may be largely settled by the plans and decisions of other agents. This in turn makes it difficult for us to regard our futures as open in the way that is characteristic of experiences of spontaneous freedom. States should promote spontaneous freedom by providing the material and social preconditions for us to feel that our lives could head in radically different and unanticipated directions. (shrink)

In this article we explore the underpinnings of what we view as a recent" backlash" in English law, a judicial reaction against considering children's and young people's expressions of their own feelings about treatment as their" true" wishes. We use this case law as a springboard to conceptual discussion, rooted in (a) empirical psychological work on child development and (b) three key philosophical ideas: rationality, autonomy and identity.

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)

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)

The principle of self-determination, as commonly intended, is based on a formal and individualistic view of liberty rights. This perspective, however, is inconsistent with the needs of a community, and particularly with the necessity to promote a relatively stable social order, and an integration between subjects. I propose a different perspective that takes into account the relationships rather than the individual. In particular, I will try to demonstrate 1) that any community implement a specific social order, that is a complex (...) of practices; 2) that any social practices express specific values; 3) that these values are the result of historical and cultural circumstances; 4) that they are subject to an ongoing public debate, and finally 5) that only if the individual praxis is consistent with these values can it lead to recognition of rights. In that perspective does not exist a general liberty to determine itself, outside of a specific relational situation. It could only be affirmed that one has a practical liberty to do and to act as it wants, but its rights depend on relationships in which the person is engaged. (shrink)

In law, the soundness of pragmatic argumentation in which a decision is defended by pointing to the consequences of the application of a particular legal rule, is often disputed. Some legal authors think that it is more of a rhetorical trick than a se rious attempt to convince in a rational way. Others think that it can be an acceptable way to defend a decision, provided that judges make explicit which value judgments underlie their decisions. I will sketch a pragma-dialectical (...) framework for pragmati c argumentation and describe the criteria for sound pragmatic argumentation in a legal context. (shrink)

Difficult questions regarding the so-called limits of toleration or accommodation are inevitable in today’s diverse, immigration societies. Such questions cannot be satisfactorily answered through simple assertions of the majority’s will or by retreating to a defense of ‘core liberal values.’ Rather, dealing with the challenges of diversity in a manner consistent with liberal-democratic principles requires that decision-making concerning the terms of collective life be informed by sincere and respectful deliberation. But how and where do we go about engaging in such (...) deliberation? This essay suggests that the courts seem to offer an arena that is more conducive than other traditional democratic institutions in terms of enabling the type of dialogue and analysis essential to realizing meaningful deliberation. Paradoxically, then, the judicialization of politics can be understood to be an ally, not an enemy, of meaningful deliberation in diverse democracies. (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)

In the last papers published by Alchourrón, he attacked non-monotonic logics, which he considered philosophically unsound for the representation of defeasible reasoning. Instead of a non-monotonic consequence relation, he proposed a formal representation of defeasibility based on an AGM-like revision of implicit assumptions connected to the premises. Given that this is a procedure to generate non-monotonic logics, it is not clear, from a mathematical standpoint, why he was so suspicious of such logics. In the present paper we try to answer (...) this question based on Alchourrón' s convictions about epistemology, particularly the epistemology of law. We also propose another revision operator on theories called refinement, which provides a faithful representation of the sort of epistemic change considered by Alchourrón as intrinsic to defeasibility. En sus últimos escritos publicados, Alchourrón desarrolló un ataque contra las lógicas no-monotónicas, que consideraba filosóficamente inadecuadas a la representación del razonamiento derrotable. En vez de una relación de consecuencia no-monotónica, él propuso una representación formal de la derrotabilidad basada en un modelo de revisión de las asunciones implícitas ligadas a las premisas. Dado que éste es un procedimiento para generar lógicas no-monotónicas, no está claro -en el nivel matemático- por qué él era tan desconfiado de tales lógicas. En el presente texto intentamos contestar a esta pregunta basados en las convicciones de Alchourrón sobre epistemología, particularmente la epistemología jurídica. También proponemos otro operador de revisión aplicado a las teorías, llamado refinamiento, que proporciona una representación fiel de la especie de cambio epistémico considerado por Alchourrón como intrínseco a la derrotabilidad. (shrink)

How should we act when uncertain about the moral truth, or when trying to remain neutral between competing moral theories? This dissertation argues that some types of actions and policies are relatively likely to be approved by a very wide range of moral theories—even theories which have never yet been formulated, or which appear to cancel out one another's advice. For example, I argue that actions and policies which increase a moral agent's access to primary goods also tend to increase (...) that agent's likelihood of bringing about good consequences, even under varying and mutually incompatible hypotheses about what consequences count as "good". We therefore have a subjective, pro tanto moral reason to perform such actions and enact such policies—one whose justification does not require treating any particular theory as especially probable, but instead merely requires treating at least one at-least-partly consequentialist moral theory as an open hypothesis, and is therefore applicable even under conditions of moral uncertainty or moral neutrality. My discussion begins abstractly, but as it progresses it gradually applies its framework to increasingly concrete issues. I find that the justification of some liberal policies—in the classical sense of "liberal"—can be accomplished with significantly fewer moral assumptions than have traditionally been relied upon. (shrink)

Multiculturalism has become a hot topic in political philosophy. This thesis investigates the philosophical foundations of multicultural theories through examining the key concepts commonly relied upon. A careful examination of each concept and the way in which they are interconnected, reveals an interesting strategy that the multiculturalist employs. It is my contention that the multiculturalist relies on a complex web of nebulous concepts which fools the reader into thinking that their theory rests on strong foundations. However, when we clear away (...) the fog of confusion, we can see that the multiculturalist has presented us with an illusion, and none of the concepts remain strong enough to hold any of the normative weight they need them to. Multiculturalism relies on grandiloquent rhetoric and muddled thinking, and will ultimately fail to achieve the liberal goals it purports to. (shrink)

A number of increasingly sophisticated technologies are now being used to support complex decision-making in a range of contexts. This paper reports on work undertaken to provide decision support in the discretionary domain of sentencing by referring to a recently created Toulmin argument based model that involves the interplay and weighting of relevant rule-based and discretionary factors used in a decisional process. Judicial discretion, particularly in the sentencing phase, is one of the mainstays of justice systems that favour individualised justice. (...) The study discusses the modelling process in Victorian courts in Australia, where the handing down of an appropriate custodial or non-custodial sentence requires the consideration of many factors. Tools and techniques used to capture relevant expert knowledge and display it both as a paper model and as an online prototype application are discussed. (shrink)