Journal of Political Philosophy, Volume 30, Issue 2, Page 209-229, June 2022.

In this paper, we discuss the notion of inevitable ignorance that the Italian Constitutional Court has introduced in justifying a restriction of the legal maxim Ignorantia legis non excusat. In particular, we argue that the epistemic flavor of the notion extends to the notion of inevitability beside that of ignorance, and we offer an epistemic analysis of the notion. This analysis is based both on the legal-theoretical framework defined by the justification of the restriction of the maxim, and on a (...) discussion of some paradigmatic Italian cases where the standard of excusability involving inevitable ignorance is applied. The analysis reveals that the notion of inevitable ignorance is closely connected to a number of notions also used in formal epistemology, such as belief, evidence, rationality, and trust. (shrink)

This article explores the claim that representative legislatures should create general legal norms. After distinguishing the requirement that statutes be general from the broader rule‐of‐law idea that law be general, I concentrate on the French constitutional tradition to argue that the plausibility of the claim turns on the elucidation of a set of social norms and understandings about the proper role of representative legislatures mediating between abstract ideals of the common good and local practices. I call these norms grammars. The (...) article then briefly compares the French “Sieyèsian” with the US “Madisonian” grammar of political representation regarding the issue of the generality of statutes and concludes with a plea for an in‐depth comparative investigation into different such grammars. (shrink)

On 24th March 2020, the first nationwide complete lockdown was announced by the Prime Minister of India for 21 days which was later extended to 31st May 2020. Consequently, thousands of migrant workers placed in big cities had no other option but to go back to their native villages. Their journeys back to villages- thousands of kilometres on bicycles or foot due to the non-availability of public transport amidst the travel ban- were driven by the compulsions of food and shelter. (...) In one of many heart-wrenching incidents, sixteen laborers were run over by a freight train while they were resting on the railway tracks. The images of the Roti on the railway track strewn across were beamed on the national news channels, as a telling commentary of the unimaginable hardships of these workers. Ironically, in the eyes of law, they were trespassers under the Indian Railways Act, 1989. The Indian Railway did not pay any compensation to the victims. Their act also violated the Indian Disaster Management Act, 2005 and Indian Penal Code, 1860- the law for the breach of lockdown guidelines and the law for disobedience of order by public servants respectively- for having decided to travel amidst a travel ban. The semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability’ are seldom questioned on their supposed amoral foundations. Pandemic exhibited that social fissures not only condition the individual or community actions but also the actions of the State. Minorities especially Muslims were at the receiving end of State’s selective enforcement of lockdown laws in India. The various instances in the wake of the COVID-19 pandemic expose the hollow claims of equality before the law and the equal protection of laws as a constitutional promise to every citizen. This article aims to unravel the ostensible and the actual moral exhibition of such Indian laws through the lens of several incidents during the nationwide lockdown in India. This paper would argue that this constructed positivist amorality needs to be deconstructed to unearth the power imbalance that it seeks to hide. (shrink)

Courts are increasingly obliged to adjudicate upon challenges to allocative decisions in healthcare, but their involvement continues to be regarded with unease, imperilling the legitimacy of the judicial role in this context. A central reason for this is that judges are perceived to lack sufficient expertise to determine allocative questions. This article critically appraises the claim of lack of judicial expertise through an examination of the various components of a limit-setting decision. It is argued that the inexpertise argument is weak (...) when compared with other rationales for judicial restraint, such as the procedural unsuitability and lack of constitutional competence of courts. (shrink)

While Risse and Wollner make an important contribution to theorising global justice and trade, I identify certain concerns with their approach and suggest an alternative that addresses these. First, I query their emphasis on subjection to the trade regime as a morally salient feature, suggesting their argument trades on an ambiguity, and fails to connect the trade regime, as a trigger, with their preferred account of trade-justice-as-non-exploitation. Second, I examine their treatment of the WTO, how they understand international organisations as (...) inheritors of states’ obligations, and how far an organisation like the WTO can or should be self-consciously reoriented towards justice-as-non-exploitation. Third, I ask how their account is distinct from existing approaches, and whether it makes sense to apply the same conception of justice across diverse agents and institutions. I conclude by sketching an alternative approach, which makes the justification of states’ policies to outsiders the central problem of trade justice. (shrink)

The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**.

Sale of Sperm, Health Records, Minimally Conscious States, and Duties of Candour Content Type Journal Article Category Recent Developments Pages 7-14 DOI 10.1007/s11673-011-9347-6 Authors Cameron Stewart, Centre for Health Governance, Law and Ethics, Sydney Law School, University of Sydney, Sydney, NSW, Australia 2006 Bernadette Richards, Law School, University of Adelaide, Adelaide, SA, Australia 5005 Richard Huxtable, Centre for Ethics in Medicine, University of Bristol, Bristol, BS8 1TH UK Bill Madden, School of Law, University of Western Sydney, Sydney, NSW, Australia Tina (...) Cockburn, School of Law, Queensland University of Technology, Brisbane, QLD, Australia Journal Journal of Bioethical Inquiry Online ISSN 1872-4353 Print ISSN 1176-7529 Journal Volume Volume 9 Journal Issue Volume 9, Number 1. (shrink)

The passage of time influences the content of the law and therefore also the validity of legal arguments. This is true even for charter-arguments, despite the widely held view that constitutional law is made to last. In this paper, I investigate the reason why the sanctity-of life argument against physician assisted suicide lost its validity between the Supreme Court decision in Rodriguez v. British Columbia in 1993 and Carter v. Canada in 2015. I suggest that a rhetorical approach to argument (...) evaluation is the best basis for a satisfying explanation. (shrink)

This essay is a critique of LarryLessig's book, Code and other Laws ofCyberspace (Basic Books, 1999). Itsummarizes Lessig's theory of the fourmodalities of regulation in cyberspace: code,law, markets, and norms. It applies thistheory to the topics of privacy and speech,illustrating how code can undermine basicrights or liberties. The review raisesquestions about the role of ethics in thismodel, and it argues that ethical principlesmust be given a privileged position in anytheory that purports to deal with the shapingof behavior in cyberspace. Finally, (...) itproposes a philosophy of ethicalself-regulation instead of an over-reliance ongovernment policy to deal with certainimproprieties and negative externalities thattend to disrupt the Net. (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.

I argue in this article (i) that Karl Olivecrona's legal philosophy, especially the critique of the view that law has binding force, the analysis of the concept and function of a legal rule, and the idea that law is a matter of organized force, is a significant contribution to twentieth century legal philosophy. I also argue (ii) that Olivecrona fails to substantiate some of his most important empirical claims, and (iii) that the distinction espoused by Olivecrona between the truth and (...) the correctness of legal statements is problematic but not needed in Olivecrona's legal philosophy. (shrink)

According to Immanuel Kant, legality means the quality of an action being merely and simply in conformity with a law. The article defends the significance of this notion and explains how it indicates the existence of a legal relation. The legal relation, in turn, is the result of resolving an antinomy between the social and the substantive dimension of moral judgment.

For an academic, there is no greater reward than having one's scholarship taken seriously. The five distinguished scholars who have contributed to this symposium on The Force of Law have done just that, with varying degrees of agreement and disagreement, praise and criticism. But even critical commentary, and perhaps especially critical commentary, is evidence of serious engagement. More importantly, the commentaries contained here have advanced our understanding of law in valuable ways. I respond to each in this reply, but with (...) full acknowledgment that my responses cannot do justice to the full breadth of their contributions and challenges. My hope is not that I will persuade readers that I am correct and my critics mistaken, but rather that the reader who absorbs both the challenges and my response will come away with a greater understanding of the issues that The Force of Law seeks to place on the agenda of contemporary jurisprudence. (shrink)

What does the law demand when it requirescitizens to conform to standards ofreasonableness? I propose and defend theview that the law should demand thatcitizens conform their behavior to someactual conduct in society. I contrast thisidea against what might be called the``empty vessel'' view of reasonableness,where the standard is understood tofunction like an empty vessel in the law,allowing courts to use various norms andmoral judgments to determine what seemsreasonable in the circumstances. Theempty vessel account is the more commonapproach for understanding reasonableness,but (...) it leaves obscure whether and howassessments about appropriate conductconnect with facts about citizens' actualconduct. I argue for a ``binocular'' viewthat focuses our attention on actualpractices and thereby establishes howthese standards provide a stable guide toconduct and support the rule of law. (shrink)

The paper argues for viewing legal validity as a doxastic obligation, i.e. as the obligation to accept a rule in legal reasoning. This notion of legal validity is shown to be both sufficient for the laywers' needs and neutral in regard to various theories of the grounds of validity, i.e. theories intended to identify what rules are legally valid, by proposing different grounds for attributing validity. All of these theories, rather then being alternative definitions of validity, presuppose the notion here (...) provided.This notion is purely normative, but it allows for the construction of theories of the grounds of validity which give due importance to social expectations and institutions. As an example of how this may happen, one such theory is also provided. This theory, which is presented through a detailed example of a judicial debate, is based upon the recognition of the (instrumental) value of co-ordination, as the necessary way to achieve the most valuable purposes of the law. (shrink)

I will argue that the concept of (valid) law is a normative notion, irreducible to any factual description. Its conceptual function is that of relating certain (alternative sets of) properties a norm may possess to the conclusion that the norm is legally binding, namely, that it deserves to be endorsed and applied in legal reasoning. Legal validity has to be distinguished from other, more demanding, normative ideas, such as moral bindingness or legal optimality.

This essay argues that legal efficacy understood as existent binding force and as dominance of a system of coercion vis-à-vis competing systems is not strictly a matter of fact, but involves what can be termed justified normativity in a factual context. The argument is divided into four sections. The first three sections describe different dimensions of a normative concept of legal efficacy applied to legal systems: efficacy as persuasiveness, as indirect communication, and as constitutive obedience. The final section focuses on (...) the efficacy of individual norms and adds a new criterion – membership – which establishes a multi-layered test of efficacy. (shrink)

During the last half of the twentieth century, legal philosophy (or legal theory or jurisprudence) has grown significantly. It is no longer the domain of a few isolated scholars in law and philosophy. Hundreds of scholars from diverse fields attend international meetings on the subject. In some universities, large lecture courses of five hundred students or more study it. The primary aim of the Law and Philosophy Library is to present some of the best original work on legal philosophy from (...) both the Anglo-American and European traditions. Not only does it help make some of the best work avail able to an international audience, but it also encourages increased awareness of, and interaction between, the two major traditions. The primary focus is on full-length scholarly monographs, although some edited volumes of original papers are also included. The Library editors are assisted by an Editorial Advisory Board of internationally renowed scholars. Legal philosophy should not be considered a narrowly circumscribed field. (shrink)

In this article we aim to open a new line of debate about religion in public schools by focusing on religious ideals. We begin with an elucidation of the concept ‘religious ideals’ and an explanation of the notion of reasonable pluralism, in order to be able to explore the dangers and positive contributions of religious ideals and their pursuit on a liberal democratic society. We draw our examples of religious ideals from Christianity and Islam, because these religions have most adherents (...) in Western liberal democracies that are the focus of this article. The fifth and most important section ‘‘Reasonable pluralism and the inclusion of religious ideals in public secondary schools’’ provides three arguments for our claim that public schools should include religious ideals, namely that they are important to religious people, that they are conducive for the development of pupils into citizens of a liberal democracy, and that the flourishing of pupils as adults is advanced by encountering religious ideals. We also offer a more practical reason: religious ideals can more easily be included within public education than religious dogmas and rules. (shrink)

Teased out through a playful tale about a king who failed in eight ways to make law, Lon L. Fuller's eight principles of the ‘internal morality of law’ became an important contribution to legal philosophy and rule of law theory alike. Moreover, it was Fuller's claim that his principles were not just internal to the enterprise of law, but also ‘moral’ in character, that precipitated a particular kind of ‘natural law versus legal positivism’ contest that continues among legal philosophers today. (...) But as a recent revival of interest in Fuller's thought indicates, his scholarly agenda around the idea of ‘the internal morality of law’ was wider still and deserves revisiting for the range of avenues of inquiry it opens up. (shrink)

Going beyond the debate between positivists and proponents of natural law, there is a controversy over whether there can or ought to be “philosophy in law” (i.e., whether anything within the subject‐matter of philosophy can also become part of the subject‐matter of law). According to Luhmann's autopoietic theory, law is a normatively closed system and accordingly remains completely independent from philosophy. Dworkin, on the other hand, asserts that constitutional law depends for its coherence and integrity on being encompassed within a (...) particular political philosophy. This essay approaches “philosophy in law” from a functional rather than a legitimating perspective, and concludes against both Luhmann and Dworkin that the integration of philosophy in law is interstitial and limited. The consequence of this for law's validity and legitimacy is a likely increase in contestation and contestability. The essay concludes that by embracing pluralism as a philosophy, one can reduce and better manage contestability without ever becoming able to eliminate it. (shrink)

This paper argues that human dignity is a sui generis status principle whose function lies in unifying our normative orders. More fully, human dignity denotes a basic status to be preserved in any institution or process; it is a principle demanding determination in different contexts; and it has its most characteristic application where the legal, moral, and political place competing obligations on individuals. The implication of this account is that we should not seek to reduce human dignity to either a (...) legal norm or a legal principle. (shrink)

The widely recognized impasse in legal theory, which requires an account of law as “both a social fact and a framework of reasons for action” has been most interestingly addressed in recent years by writers characterizing law as convention in the sense of a solution to a game theoretical “coordination problem.” As critics have neutralized most of these proposals, the author advances an account of conventionalism, drawing on economic and sociological theory, which he claims makes the bridge between positivist and (...) naturalist theories of law without compromising the basic insights of either. The result is a unified theory of law, politics and society. (shrink)

Although the concept of Rule of Law has been revived and developed vigorously by mid‐twentieth century conservative political theorists, contemporary legal positivists have not been impressed. The author reviews this confrontation, outlines the logic for a strong theory of Rule of Law, and surveys the leading attempts to provide compelling grounds for such a theory.

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) to discover the values because of which certain things in the world are classified as law and others as non-law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes. (shrink)

ABSTRACT:Some business ethicists view agency theory as a cautionary tale—a proof that it is impossible to carry out successful economic interactions in the absence of ethical behaviour. The cautionary-tale view presents a nuanced normative characterisation of agency, but itsunilateralfocus betrays a limited understanding of the structure of social interaction. This article moves beyond unilateralism by presenting a descriptive and normative argument for abilateralcautionary-tale view. Specifically, we discuss hat swaps and role dualism in asymmetric-information principal-agent relationships and argue that the norm (...) of reciprocity can function as a moral solution to agency risks in adverse-selection and moral-hazard problems. Our bilateral cautionary-tale formulation extends the normative boundaries of agency theory, while leaving the fundamental economic assumptions of agency theory intact. (shrink)

The essay discusses the import of the separability thesis both for legal positivism and for contemporary legal practice. First, the place of the separability thesis in legal positivism will be explored, distinguishing between “standard positivism” and “post‐Hartian positivism.” Then I will consider various kinds of relations between law and morality that are worthy of jurisprudential interest, and explore, from a positivist point of view, what kind of relations between law and morality must be rejected, what kind of such relations should (...) be taken into account, and what kind of such relations are indeed of no import at all. The upshot of this analysis consists in highlighting the distinction between two different dimensions of legal validity (formal validity and material validity respectively), and in pointing out that the positivist separability thesis can apply to formal validity only. On the other hand, when the ascertainment of material validity is at stake, some form of moral reasoning may well be involved (here and now, it is necessarily involved). The essay concludes with some brief remarks on the persisting importance of the positivist jurisprudential project. (shrink)

This chapter highlights how the encouragement of citizens' participation may in fact masquerade their rulers' attempt to create consensus for their ‘superior’ political project. It illustrates in ethnographic detail how rulers have symbolically used the public space, along with policies of urban regeneration, to win popular consensus and, thus, legitimise their position. The analysis addresses a central problem in the dynamics of democratic government, as it shows that lack of responsibility and superimposition of a political rhetoric on good governance eventually (...) leads to people's distrust of those in power. The case of Naples significantly points to the fact that, while people may be granted formal membership of society, rulers' pedagogic approaches and self-legitimisation do in fact deny fundamental citizenship rights, such as social and economic rights. (shrink)

In this article, the co-editors of the Leadership and Ethics: Quantitative Analysis section of the journal outline some of the key issues about conducting quantitative research at the intersection of business, ethics, and leadership. They offer guidance for authors by explaining the types of papers that are often rejected and how to avoid some common pitfalls that lead to rejection. They also offer some ideas for future research by drawing upon the opinions of four noted experts in the field to (...) consider the types of research questions we should be asking, the types of theory we should be building, the types of models we should be testing, and the types of methods we should be using. (shrink)

Ratio Juris, Volume 34, Issue 2, Page 121-138, June 2021.

A renewed search for legal certainty is a reaction to the preponderance of judge made law, which has been in turn prompted by the democratic deficit of the EU and the impact of Anglo-American law. The problem is that the search is oblivious to both systematic interpretation and the need of re-systematization of law. The paper defines systematic interpretation, relates the definition to standard French and German conceptions, indicates the room for systematic interpretation in Anglo-American laws, and states prima facie (...) reasons for a re-systematization of law as a prerequisite of systematic interpretation. The problem cannot be appreciated outside its proper context. It is a disregard for causation and evaluation. Hence the paper outlines Aristotle’s understanding of causation and evaluation in his presentation of phronesis, reconsiders continental European legal thought in the light of Aristotle’s presentation, and offers policy-oriented jurisprudence as a remedy to the deficit of evaluation and causation in European legal thought. A solution to the problem offers a typology of criteria and clarifies positive and fundamental legal concepts, positive and fundamental criteria of systematization, and the place of criteria in knowledge of law. The usefulness of the criteria is demonstrated by a common approach to the systematization of law and an alternative diagnosis of a defect of systematization diagnosed by an authority in history and philosophy of law rather than legal theory. (shrink)

The author revisits H. L. A. Hart's theory of positive law and argues for a major qualification to the thesis of the separation of law and morality based on a concept of systemic legitimacy derived from the social theory of Jurgen Habermas. He argues that standards for assessing the degree of systemic legitimacy in modern legal systems can develop through reflective exercise of “critical legality,” a concept coined to parallel Hart's “critical morality,” and an expanded understanding of the “external” and (...) “internal” perspectives on legal systems. Following Habermas, he argues that modern positive law must retain systemic legitimacy. After suggesting criteria for measuring systemic legitimacy, the author concludes that the concept provides a useful approach to contemporary problems of “lawless” regimes and “law's imperialism.”. (shrink)

Purpose. The study is aimed at highlighting in the historical-comparative context the influence of anthropological teachings on the development and formation of such a legal phenomenon as "legal certainty", proving that the category of legal certainty appeared as a consequence of anthropocentric philosophical approach in law. Theoretical basis. In the article, using the system approach, the content of the term "legal certainty" was analyzed. The axiological approach allowed generalizing various manifestations of legal certainty within the limits of one va-lue concept (...) and generalizing it by formulating and emphasizing the importance of the anthropophilosophical approach in the study of legal phenomena. The method of comparison, analysis, synthesis, generalization of philosophical concepts was used, in which the principle of legal certainty was expressed in different periods of historical development. Originality. This article supports a wide approach to understanding the principle of legal certainty, and the latter one relates to general theoretical legal principles. It is alleged that legal certainty consists of a number of requirements for lawmaking and law enforcement. In conducting a historical analysis for these requirements of legal certainty, it was established that they were historically originated and developed as a part of anthropological philosophical doctrine and subsequently embodied in law. The connection with anthropological teaching in jurisprudence is transformed into a relationship between the realization of the principle of legal certainty and human rights. Conclusions. Anthropological approaches in the study of legal phenomena allow providing value humanistic orientation to law. Human rights and freedoms as the most important social value require observance of them even when the legislation is imperfect, uncoordinated, contains gaps and uncertainties. The principle of legal certainty enables to overcome these difficulties, due to it the requirements of lawfulness and observance of human rights and freedoms are agreed upon. This principle is generally legal, and its content is revealed through a set of components – requirements. (shrink)

Ratio Juris, Volume 35, Issue 3, Page 258-272, September 2022.

Scholars have addressed restrictions on individual liberty, or deprivations thereof, that do not entail prison or jail—including area restrictions, revoking driver’s licenses, and GPS bracelets. In all legal domains, the effects of these measures on the lives of targeted individuals can be significant, primarily with respect to their capability to guide their own behavior. Some are applied categorically rather than individually, do not involve a fair trial or hearing, or are applied preventively or after the targeted individual has completed a (...) prison sentence. My aim in this article is to extend our view from prison as the quintessential method of depriving individuals of their liberty to control of individuals without locking them up. I address degrees of individual liberty and inquire into legal protections for individuals who are partially free but deprived of liberty in some areas of life. (shrink)

Law contains many dualities, though most, if not all, of these dualities resolve into one complex puzzle: To what extent is law a matter of pure social facts, or moral value untethered to social facts? I argue that each concept of law reconciles this duality in a different way on the basis of certain beneficial consequences that might result. Instead of pitting concepts against one another universally, we should accept that the balance between law's social fact and moral value dimensions (...) is context-specific in relation to particular legal puzzles. This balance can be achieved only by considering both political theory and empirical data. (shrink)

Institutionalized practices of collective justification are central for theorizing international fairness. Institutions matter because they play a significant part in the construal of fairness claims through the provision of internal standards for moral assessment. Conceptions of international fairness must spell out how collective justification works by addressing the jurisprudential and institutional issues at stake in the specification of the moral grounds for compliance with international institutions on the one hand and international civil disobedience on the other. Theoretical models of institutions (...) that do not pay attention to collective justification are inadequate on fairness grounds. More specifically, mainstream neoliberal institutionalist accounts of international regimes are deeply problematic when used in the normative evaluation of international institutions, as they offer the wrong benchmark for moral assessment, given their roots in a brand of exchange theory that is blind to the distribution of burdens and benefits from cooperation. (shrink)

Transitional justice refers to the process of dealing with widespread wrongdoing characteristically committed during the course of conflict and/or repression. Examples of such processes include criminal trials, truth commissions, reparations, and memorials. Technology is altering the forms that widespread wrongdoing takes. Technology is also altering the form of processes of transitional justice themselves. This essay provides a map of these changes and their normative implications.

Processes of transitional justice deal with large-scale wrongdoing committed during extended periods of conflict or repression. This paper discusses three common moral objections to processes of transitional justice, which I label shaking hands with the devil, selling victims short, and entrenching the status quo. Given the scale of wrongdoing and the context in which transitional justice processes are adopted, compromise is necessary. To respond to these objections, I argue, it is necessary to articulate the conditions that make a compromise principled. (...) I defend three criteria that distinguish principled from unprincipled compromises. (shrink)

The philosophical tradition of liberal political thought has come to see tolerance as a crucial element of a liberal political order. However, while much has been made of the value of toleration, little work has been done on individual-level motivations for tolerant behavior. In this article, we seek to develop an account of the rational motivations for toleration and of where the limits of toleration lie. We first present a very simple model of rational motivations for toleration. Key to this (...) model is an application of David Ricardo’s model of trade to thinking about toleration. This model supports the claim that we always have reasons to be as tolerant as possible. We then explore why we do not always see tolerant attitudes in the actual world, and point to some potential preconditions for toleration that the initial model does not capture. Subsequently, we examine a more detailed model that allows us to investigate more carefully the conditions under which tolerant behavior can be rewarded. We conclude by arguing that a consideration of self-interested motivations for toleration is essential to the success of a robust theory of toleration for a diverse society, but that even this approach has its limitations. (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)

What should authorities establish as the job of ethics committees and review boards? Two answers are: review of proposals for consistency with the duly established and applicable code and review of proposals for ethical acceptability. The present paper argues that these two jobs come apart in principle and in practice. On grounds of practicality, publicity and separation of powers, it argues that the relevant authorities do better to establish code-consistency review and not ethics-consistency review. It also rebuts bad code and (...) independence arguments for the opposite view. It then argues that authorities at present variously specify both code-consistency and ethics-consistency jobs, but most are also unclear on this issue. The paper then argues that they should reform the job of review boards and ethics committees, by clearly establishing code-consistency review and disestablishing ethics-consistency review, and through related reform of the basic orientation, focus, name, and expertise profile of these bodies and their actions. (shrink)

ABSTRACT Some of the most compelling contemporary ethical questions surround 21st Century neuroscientific technologies. Among these, neurocognitive intervention technologies allow an unprecedented ability to alter thought. Concerns exist about their impact on individual freedom, behavior and personhood. They could also distort society, eroding core values of dignity, equality, and diversity. Potent laws are needed to anchor regulation in this rising field. The article explores how the long-neglected human right of Freedom of Thought might protect the integrity of the mind at (...) the legal system’s highest level. Sample cases illustrate how it could be given effect ethically and legally to set boundaries for neurocognitive intervention. (shrink)