H. L. A. Hart in his Law, Liberty, and Morality (1963) defended the view that legal paternalism and legal moralism can be clearly distinguished from each other. Hart also stated that while legal moralism is always unacceptable, paternalistic laws are often justifiable. In this paper it is argued that Hart held the right view for the wrong reasons. Hart defended legal paternalism by claiming, against J. S. Mill, that for various psychological reasons individuals do not know their own interests best. (...) It will be shown in the paper that if this view is taken, it is impossible to reject legal moralism. The fact that paternalism is sometimes justifiable while moralism is not can be more firmly founded on a distinction made by C. L. Ten (1971). Ten's point is that in matters which concern only the individuals themselves, their actions cannot be legitimately restricted by appeals to the consequences of their action alone. Paternalistic control can be justified only if the decision-making abilities of the controlled individual are temporarily diminished. (shrink)

In this paper, I make an attempt to look for a thin and general concept of law that, as far as possible, should be neutral to the more substantial views of legal moralism and legal positivism, so that it is acceptable from both points of view. With this aim in view, I shall begin with a few remarks on concept formation and name a list of necessary requirements on an appropriate concept of law. On this basis, I intend to discuss (...) a number of contemporary legal theories in view to their respective interpretations of the concept of law. Finally, I want to propose a definition of law that not only satisfies the requirements of the concept of law, but is also general enough to be compatible with both camps of legal thinking. (shrink)

This paper analyzes the inconsistency of Mill’s utilitarianism in moral philosophy and his liberalism in political philosophy, the efforts of Ten and Dworkin for their consistency and the distinction that Leob and Driver use for reconciling them‌. The distinction is between decision-procedure and criterion of evaluation or the metaphysics and epistemology of right‌. In the next step, it shows a new inconsistency between Mill’s moral and political philosophy‌. It seems that Mill cannot accept the non-consequentialist ‘doing/allowing harm’ distinction in moral (...) philosophy because he himself is a consequentialist‌. The rejection of this distinction makes it inconsistent with his harm principle and his main distinction in political philosophy: the distinction between ‘self-regarding’ and ‘other-regarding’ actions‌. These criticisms show the difficulty of reconciling Mill’s utilitarianism with his liberalism and his moral philosophy with his political philosophy in the framework of the classic triple in normative ethics‌. Therefore, in order to solve this problem, I combined the classic triple with the modern triple in normative ethics. In this way, we can regard Mill as a consistent utilitarian who regards liberty as the essential condition for personal development and maximization of the good, and tries to raise a moderate and sophisticated version of utilitarianism by decreasing its pervasiveness‌‌. (shrink)

Hart argues persuasively that majority disapproval cannot justify the government in prohibiting a form of sexual conduct, but he does not address the possibility that the intrinsic badness of a sex act might justify the government in prohibiting it. This article explains within a contractualist framework why the intrinsic badness of a sex act cannot justify the restriction of any important sexual freedom.

There is an important moral difference between laws that criminalize drugs and prostitution and laws that make them illegal in other ways: criminalization violates our moral rights in a way that nonlegalization does not. Criminalization is defined as follows. Drugs are criminalized when there are criminal penalties for using or possessing small quantities of drugs. Prostitution is criminalized when there are criminal penalties for selling sex. Legalization is defined as follows. Drugs are legalized when there are no criminal penalties for (...) manufacturing, selling and possessing large quantities of drugs. Prostitution is legalized when there are no criminal penalties for owning or operating a brothel or escort service, no criminal penalties for working as a paid agent for sex work, and no criminal penalties for paying someone for sex who is above the age of legal employment and sexual consent. The criminalization of drugs and prostitution violate the right of self-sovereignty in depriving individuals of important forms of control over their own minds and bodies, but nonlegalization does not violate this right. It is therefore consistent, as a matter of principle, to advocate decriminalization but to oppose legalization. (shrink)

A companion to ‘Punishment: Consequentialism’, and also ‘Punishment: The Future’, this paper examines various nonconsequentialist attempts to justify punishment, that is, attempts that appeal to claims concerning the innate worth or intrinsic character of punishment, quite apart from any consequential good or benefit punishment may be thought to produce. The paper starts with retributive theories, and turns then to the denunciation and expressive theories, before considering combined communicative–retributive theories.

The aim of this article is to demonstrate that the theory of changes in perspectives allows a different presentation of the problems which arise from a loss of recognition as an element of punishment, particularly in reference to others, the entire structure of the interaction is changed. Communicative conditions of moral discourses assume that every participant of the argumentation process takes place in all spheres of social life and can assume the perspective common to all other participants. The main task (...) of criminal law is, then, the protection of elementary aspects of one’s role as a participant of interaction without which the chain of mutual recognition and understanding could be freely and at any moment infringed by any given participant of interactions, i.e. the protection of such rights. (shrink)

Hallelujah! God Bless America! No one has these prices—Only Daniela High Fashion Dresses. High class merchandise at low low prices. 649 Lexington Avenue, New York, NY 10022. Business card of a Manhattan dress shop. By associating welfare provisions and other (selected) government interventions with socialism/communism and conversely the free enterprise system with loyalty, patriotism, the American Dream, the American way of life, the propagandists are doing no more than manipulating the appropriate Satanic and Sacred symbols. A. Carey,Taking the Risk Out (...) of Democracy. (shrink)

The Australian Productivity Commission and a Joint Select Committee on Gambling Reform have recommended implementation of a mandatory pre-commitment system for electronic gambling. Organizations associated with the gambling industry have protested that such interventions reduce individual rights, and will cause a reduction in revenue which will cost jobs and reduce gaming venue support for local communities. This article is not concerned with the design details or the evidence base of the proposed scheme, but rather with the fundamental criticism that a (...) mandatory pre-commitment policy is an unacceptable interference with the liberty of the individual, and of organizations. It is argued that the concept of paternalism is a useful lens with which to study the interactions between business and society on this issue. It is contended that the benefits of a pre-commitment system to problem gamblers and society are socially and economically significant, and the cost to recreational gamblers, particularly the cost in terms of interference with the liberty of the individual, is minimal. Pre-commitment also requires gambling businesses to act in a more socially responsible manner. It is concluded that the proposed legislation constitutes a paternalistic intervention by government on the interaction between business and society, and that this is justified. (shrink)

Is it justified to detect minor genetic aberrations before birth and terminate pregnancies based upon such information? We present the case of a woman who wanted Prenatal Diagnosis to detect whether her female fetus was a Haemophilia mutation carrier. Such carriers are usually healthy.She wished to eradicate the Haemophilia mutation from her family to avoid future generations being affected and to protect her children from having to go through PND themselves. We explore existing practice guidelines, public attitudes and possible objections (...) to providing PND for minor abnormalities. We argue that in a society where couples have considerable autonomy relating to decisions about the fetus at least until viability, the routine restriction of PND for minor genetic abnormalities would be an unjust infringement of individual liberty. (shrink)

The recent outbreak of Ebola in West Africa has killed thousands of people, including healthcare workers. African responses have been varied and largely ineffective. The WHO and the international community’s belated responses have yet to quell the epidemic. The crisis is characteristic of a failure to properly comply with the International Health Regulations 2005. More generally, it stems from a failure of international health justice as articulated by a range of legal institutions and instruments, and it should prompt us to (...) question the state and direction of approaches to the governance of global public health. This paper queries what might be done to lift global public health as a policy arena to the place of prominence that it deserves. It argues that there are at least two critical reasons for the past, present and easily anticipated future failings of the global public health regime. After exploring those, it then articulates a new way forward, identifying three courses of action that might be adopted in realising better health outcomes and global health justice, namely value, institutional and legal reform. (shrink)

Despite the emphasis on the state in the history of political philosophy, the twentieth century has been characterized by a remarkable lack of philosophical reflection on the concept. Until recently analytical philosophy had eschewed those evaluative arguments about political obligation and the limits of state authority that were typical of political theory in the past in favour of the explication of the meaning of the concept. However, even here the results have been disappointing. Logical Positivist attempts to locate some unique (...) empirical phenomenon which the word state described proved unsuccessful, and indeed led to the odd conclusion that there was nothing about the state that distinguished it from some other social institutions. For example, its coercive power was said to be not unique: in some circumstances trade unions and Churches exercised similar power over their members. Ordinary language philosophers were far more interested in the complexities that surround words such as law, authority and power than in the state. In all this there was perhaps the fear that to concentrate attention on the state was implicitly to give credence to the discredited doctrine that it stood for some metaphysical entity; propositions about which could not be translated into propositions about the actions of individuals, and which represented higher values than those of ordinary human agents. (shrink)

Despite the emphasis on the state in the history of political philosophy, the twentieth century has been characterized by a remarkable lack of philosophical reflection on the concept. Until recently analytical philosophy had eschewed those evaluative arguments about political obligation and the limits of state authority that were typical of political theory in the past in favour of the explication of the meaning of the concept. However, even here the results have been disappointing. Logical Positivist attempts to locate some unique (...) empirical phenomenon which the word state described proved unsuccessful, and indeed led to the odd conclusion that there was nothing about the state that distinguished it from some other social institutions. For example, its coercive power was said to be not unique: in some circumstances trade unions and Churches exercised similar power over their members. Ordinary language philosophers were far more interested in the complexities that surround words such as law, authority and power than in the state. In all this there was perhaps the fear that to concentrate attention on thestatewas implicitly to give credence to the discredited doctrine that it stood for some metaphysical entity; propositions about which could not be translated into propositions about the actions ofindividuals, and which represented higher values than those of ordinary human agents. (shrink)

My discussion in this lecture is structured as follows. In section 1 I consider the nature of philosophical enquiry and its affinity to liberalism. In section 2 I lay out some of the basic components of liberal theory and explore their interrelations. In section 3 I discuss two challenges to liberalism: one concerning the conception of liberty which it involves and one concerning the way in which it introduces the idea of legitimate political authority. In section 4 I suggest that (...) these problems, to do with the values of liberalism, arise on the basis of a prior conception of individuals which is in need of modification. In a brief concluding section 5 I indicate the need for a post-liberal political theory. (shrink)

The philosophical problems of liberty may be classified as those of definition, of justification and of distribution. They are so complex that there is a danger of being unable to see the wood for the trees. It may be helpful, therefore, to provide an aerial photograph of a large part of the wood, namely, the liberty ofindividual persons. But it is, of course, a photograph taken from an individual point of view, as Leibniz would have put it.

Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers New York: Pantheon, 1990, ix + 293 pp.

That's what I reckon morality is all about — how to preach, not how to act. My aim is not to answer this question of how to preach. I want to defend the claim that it is the, or at least a, central problem of ethics: that it is in fact the problem of what moral principles to accept.My argument consists of an account of what is involved in accepting a moral principle. By a moral principle I mean a kind (...) of principle about how people should act. Moral principles are not the only principles you can have about how people should act. There are principles of prudence, or rational self-interest. There are aesthetic principles, such as might be expressed in a remark like “you shouldn't put a magenta cushion on a scarlet sofa”. There are principles of etiquette. And no doubt there are others. I develop my account of morality by asking what distinguishes moral principles from the rest. (shrink)

It has now been more than 50 years since H. L. A Hart and Lord Patrick Devlin first squared off in perhaps the most celebrated jurisprudential debate of the twentieth‐century (1959–1967). The central issue in that dispute—whether the state may criminalize immoral behavior as such—continues to be debated today, but in a vastly changed legal landscape. In this article I take a fresh look at the Hart‐Devlin debate in the light of five decades of social and legal changes.

.The article deals with the difference between some forms of legal positivism. It is argued that, even in continental legal systems which are typically “rule bound,” there is some space left for principles in the legal system. The author tries to explain how this space can be filled and what methods should be used by a judge to do so.

Bioethics as an academic discipline comes into public discourse when real life “hard cases” receive media attention. Since cases of this sort increasingly often become the subject of litigation, the forum for debate can be a court of law, with judges as the final arbiters. Judges (unlike philosophers) are obliged to give final and definitive rulings in a constrained time period. Their training is in a type of discourse very different from moral philosophy, though still concerned with right and wrong. (...) This paper explores the differences between the tools and methods used in public legal debate and private academic discourse, and the different nature of the answers they produce. It attempts to suggest some ways in which bioethicists can better understand lawyers’ reasoning in cases of this sort, and how communication between bioethics and law might be improved. (shrink)