Following Kelsen’s influential theory of law, the concept of validity has been used in the literature to refer to different properties of law (such as existence, membership, bindingness, and more), and so it is inherently ambiguous. More importantly, Kelsen’s equivalence between the existence and the validity of law prevents us from accounting satisfactorily for relevant aspects of our current legal practices, such as the phenomenon of “unlawful law.” This chapter addresses this ambiguity to argue that the most (...) important function of the concept of validity is constituting the complex ontological paradigm of modern law as an institutional-normative practice. In this sense, validity is an artificial ontological status that supervenes on that of the existence of legal norms, thus allowing law to regulate its own creation and creating the logical space for the occurrence of “unlawful law.” This function, I argue in the last part, is crucial to understanding the relationship between the ontological and epistemic dimensions of the objectivity of law. Given the necessary practice-independence of legal norms it is the epistemic accessibility of their creation that enables the law to fulfill its general action-guiding (and thus coordinating) function. (shrink)

The following four theses all have some intuitive appeal: (I) There are valid norms. (II) A norm is valid only if justified by a valid norm. (III) Justification, on the class of norms, has an irreflexive proper ancestral. (IV) There is no infinite sequence of valid norms each of which is justified by its successor. However, at least one must be false, for (I)--(III) together entail the denial of (IV). There is thus a conflict between intuition and logical possibility. This (...) paper, after distinguishing various conceptions of a norm, of validity and of justification, argues for the following position. (I) is true. (II) is false for legislative justification and true for epistemic justification. (III) is true for legislative and false for epistemic justification. (IV) is true for legislative justification; for epistemic justification (IV) is true or false depending on the conception taken of a norm. Our intuition in favour of (II) must therefore be abandoned where justification is conceived legislatively. Our intuition in favour of (III) must be abandoned, and our intuition in favour of (IV) qualified, where justification is conceived epistemically. (shrink)

This study aimed to assess the effectiveness of remedial instruction in improving the numeracy skills of Grade 7 students at Malbug National High School during the school year 2023-2024. Adopting a quasi-experimental research design, the research focused on Grade 7 students at Malbug National High School, Cawayan East District, Masbate Province Division, Philippines, identified as non-numerates, employing pre-tests and post-tests as essential research tools. The independent variable was the remedial instruction in numeracy, while the dependent variable was students' numeracy performance (...) measured through pre-tests and post-tests. Before the intervention, the pre-test numeracy performance exhibited a varied distribution of students across different score ranges. A majority fell into the "Needs Major Support" category, emphasizing the necessity for targeted interventions. The post-test results, however, revealed a remarkable improvement, with 87.88% of initially non-numerate students achieving scores in the "Transforming" range. A thorough statistical examination validated a notable disparity in the scores obtained before and after the instructional intervention, substantiating the favorable influence of remedial instruction. The calculated t-value of 19.594, exceeding the critical t-value, led to rejecting the null hypothesis. In conclusion, the study emphasizes the need for tailored interventions based on the initial deficiency in numeracy skills. The post-test results underscored the success of remedial instruction in fostering substantial growth. The study recommends sustaining the remedial program, implementing periodic assessments, providing teacher training, involving parents in students' development, allocating adequate resources, and further research in other schools to strengthen findings. (shrink)

This capstone project aimed to enhance the operational efficiency of school transactions at Mary Perpetua E. Brioso National High School (MPEBNHS) in response to challenges posed by the COVID-19 pandemic. This goal was achieved by developing and implementing the Mobile-Based Selected School Services Application, "iSkulSerb." The development of iSkulSerb followed the systematic approach of Borg and Gall's (1983) Research and Development (R&D) methodology for creating and validating educational products. To ensure the validity and reliability of the application, it underwent (...) rigorous examination by both IT and education experts. Additionally, survey questionnaires were administered during the project's implementation to assess the impact of iSkulSerb's features on school stakeholders. The research findings highlighted positive perceptions and outcomes related to iSkulSerb. Stakeholders demonstrated a favorable acceptance of the application, as evidenced by an overall weighted mean of 4.34. The accessibility of school services saw a substantial improvement, reflected in the weighted mean of 4.37. User-friendliness also received positive feedback, with an overall weighted mean of 4.27. These findings suggest that iSkulSerb effectively addresses the challenges faced by the school, contributing to enhanced operational efficiency and improved stakeholder experiences. Given the demonstrated reliability and efficacy of iSkulSerb, there is a compelling case for its widespread adoption across other public schools within the Schools Division of Masbate Province. The positive reception and success metrics indicate that iSkulSerb can serve as a benchmark for other regional schools. (shrink)

Wil Waluchow has advanced perhaps the most convincing argument in favour of what he eloquently termed ‘inclusive legal positivism’, the view that a given legal system could make legal validity depend on moral truths. This chapter refocuses the case for the opposing view of exclusive positivism on the metaphysical tension in seeing law as an institutional social fact and yet for its validity to depend on something that is not a social fact, developing an understanding (...) of official mistake as a way of highlighting that tension. If legal validity itself is understood as a socially constructed status (something with which any legal positivist would agree), key officials (as a group) cannot be wrong about the criteria sufficient for institutional membership having been met. While the officials cannot be wrong about the sufficient conditions, they can be wrong about the necessary (gatekeeping) ones and the moral criteria that inclusive positivists say could be included among the criteria of validity are invariably understood to be necessary conditions. That might look like a point in favour of inclusive positivism, but it is only the sufficient conditions that are constitutive of legal validity. Two facets of legal decisions are then marshalled to buttress the case for exclusive positivism: that almost every legal decision is also a determination of validity, and that all such decisions are systemically treated as correct until reviewed by a court of superior jurisdiction (which is itself a sufficient condition for membership). The implication of this is that moral criteria, understood as gatekeepers for legal validity, cannot be constitutive of legal validity. (shrink)

Legal positivism emerged in response to natural law, as an indictment on the latter’s metaphysical predilections. Natural law dominance created a yearning for empiricism, or even a ‘hard scientism’ in approach to understanding socially constructed phenomenon, including legal praxis. From its Benthamite origins, it has since been developed, with recent, spirited debate still undertaken among towering legal scholars. Although its validity is contested to some, it remains as an analytic point of view of the law. Yet, (...) within its design, there is quite a bit of subject matter put out of view of the positivist, even though it is observable phenomenon within the sphere of legal praxis. This creates a void in which certain problems are unsolvable by the theory of law embodied in positivism. Rather than adjust the theory, the positivists either designate the void as the province for legal decision-making based on an internal morality in hard cases; or it criticises systems that do not strictly adhere to the positivist account as crude in the case of the international legal system. What follows is an account of HLA Hart’s brand of positivism, as it has remained dominant and perhaps the easiest to understand. I then identify subject-matter put out of view of positivism, with reference to Kelsen’s account of ‘authority’. I conclude that the positivist project is incomplete given its limited account of decision-making in hard cases and the international legal system. (shrink)

We are concerned in this paper to establish the rationality of American legal realism by adopting a theory of reconstruction. American realism is plagued with dichotomies in relating theory and practice; and the need to broach these dichotomies involves transcendence of experience and transference of consciousness. In doing this, we have both to excavate and to justify its philosophy, logic and science. American legal realism has its root in the philosophy of pragmatism and a logic that sets out (...) the essential elements associated with the making and determination of the law through instrumentality of the court. The validity of this category of legal theory tends to lie on the extent of immediate use to which law can be put or the benefits it can afford the American society. Believing in the possibility of a realistic theory of law that is purely American precludes belief in universal understanding of human legal experience distinct from the understanding gained through the cultural lenses of the American people. Although American realists differ remarkably even within a single paradigm, nevertheless three areas of logical unity among them are that: They bear a cross relevance, a complementing and interlocking of results, and a similar faith in attacking legal problems. A completely empirical understanding of American legal realism seems nebulous, because causality presupposes the interaction of American liberal and legalistic political attitudes. Legalism is the life wire of American culture and this makes distribution of rights and legal predictability possible: incidentally language is an important instrument for making this happens. Countries seeking to adopt the American model of legal order or something similar to it should be capable of an equivalent orientation in terms of formulating their philosophy, logic and science of adjudication. (shrink)

This paper argues that juridification has become the enemy of legality. By 'juridification' is meant the proliferation of legal norms and legally recognized norms. By legality is meant conformity with the ideal of the rule of law. The paper begins with the most obvious ways in which juridification threatens legality. Too much law makes the law on any subject hard to discover, hard to remember, and hard to follow. It also makes us too dependent on the discretion of petty (...) officials, who are therefore not sufficiently constrained by law. But the paper looks beyond the discretion of petty officials and argues that, in a way, the biggest threat to legality of our age comes from the proliferation of contractual norms, and the increasing diversion of contractual dispute-resolution into arbitration (and other ADR processes). The paper argues that those who rely on the law to recognise contracts should be subjected to an non-excludable jurisdiction of the courts in respect of all questions of law arising under those contracts, including their proper legal meaning. A compulsory arbitration clause, in other words, should be valid only subject to extensive judicial review of the arbitrator’s decisions. It is argued that contractual arbitration (and other ADR) that does not meet this condition is free-riding on the work of courts and professional lawyers, and should be regarded as antisocial – and that this is true even when it does more perfect justice between the parties. (shrink)

Photomechanical reprint of papers from 1970 to 1992 mostly in English, some in German or French: Foreword 1–4; LAW AS PRACTICE ‘La formation des concepts en sciences juridiques’ 7–33, ‘Geltung des Rechts – Wirksamkeit des Rechts’ 35–42, ‘Macrosociological Theories of Law’ 43–76, ‘Law & its Inner Morality’ 77–89, ‘The Law & its Limits’ 91–96; LAW AS TECHNIQUE ‘Domaine »externe« & domaine »interne« en droit’ 99–117, ‘Die ministerielle Begründung’ 119–139, ‘The Preamble’ 141–167, ‘Presumption & Fiction’ 169–185, ‘Legal Technique’187–198; LAW AS (...) LOGIC ‘Moderne Staatlichkeit und modernes formales Recht’ 201–207, ‘Heterogeneity & Validity of Law’ 209–218, ‘Leibniz & die Frage der rechtlichen Systembildung’ 219–232, ‘Law & its Approach as a System’ 233–255, ‘Logic of Law & Judicial Activity’ 258–288, ‘Kelsen’s Pure Theory of Law’ 289–293, ‘The Nature of the Judicial Application of Norms’ 295–314; LAW AS EXPERIENCE ‘The Socially Determined Nature of Legal Reasoning’317–374, ‘The Ontological Foundation of Law’ 375–390, ‘Is Law a System of Enactments?’ 391–398, ‘The Uniqueness of National Legal Cultures’ 399–411, ‘Institutions as Systems’ 413–424; LAW AS HISTORY ‘From Legal Customs to Legal Folkways’ 427–436, ‘Anthropological Jurisprudence?’ 437–457, ‘Law as a Social Issue’ 459–475, ‘Law as History?’477–484, ‘Rechtskultur – Denkkultur’ 485–489; w/ Curriculum Vitae & Bibliography, as well as Index & Indexes of normative materials & of names. (shrink)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and (...) conversation. Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

Risk communication has been generally categorized as a warning act, which is performed in order to prevent or minimize risk. On the other side, risk analysis has also underscored the role played by information in reducing uncertainty about risk. In both approaches the safety aspects related to the protection of the right to health are on focus. However, it seems that there are cases where a risk cannot possibly be avoided or uncertainty reduced, this is for instance valid for the (...) declaration of side effects associated with pharmaceutical products or when a decision about drug approval or retirement must be delivered on the available evidence. In these cases, risk communication seems to accomplish other tasks than preventing risk or reducing uncertainty. The present paper analyzes the legal instruments which have been developed in order to control and manage the risks related to drugs – such as the notion of “development risk” or “residual risk” – and relates them to different kinds of uncertainty. These are conceptualized as epistemic, ecological, metric, ethical, and stochastic, depending on their nature. By referring to this taxonomy, different functions of pharmaceutical risk communication are identified and connected with the legal tools of uncertainty management. The purpose is to distinguish the different functions of risk communication and make explicit their different legal nature and implications. (shrink)

This chapter provides an explanation of precedent as a kind of artefact, in keeping with broader accounts of law that do so, specifically the author’s account of law as a genre of institutionalized abstract artefact. The chapter develops its explanation by responding to an argument by Dan Priel against seeing the common law as an artefact when understood to be a form of custom. The chapter shows that customs can themselves be artefacts but also that the precedential elements of common (...) law are not necessarily quite as customary as sometimes considered, showing that the common law built from precedents fits within a distributed design model of artefacts and that stare decisis has a wider systemic function of upholding certain rule of law principles. It ends with some considerations about the institutional nature of precedents, specifically that judicial decisions are most often both applications and developments of legal norms, but also determinations of legal validity. (shrink)

When we say that we interpret customary international law, what is this thing that we actually interpret? Depending on how we answer this question, our view on interpretative methodology will change. It seems that the most promising approach is to say that interpretation of customary international law is an interpretation of certain legal practices. However, here we also encounter some problems. The dominant doctrine of customary international law requiring state practice and opinio juris assumes that only by adding a (...) psychological element to a regularity of behaviour can we speak of customary international law. That is, opinio juris performs a function of generating both legality and normativity of practices. -/- The article challenges this view by drawing on jurisprudential ideas that define practices as inherently normative. State practices are normative regardless of opinio juris, otherwise they are not practices at all. This view allows to differentiate between two instances of interpretation of customary international law. One is focused on clarification of the normative content of state practices, another is focusing on identification of these practices as legal ones. -/- Interpretation as clarification involves assessing structures of practical reasoning inherent in given practices. Drawing on Joseph Raz's theory of normativity, the article suggests that interpretation of customary rules implies establishing connections between first- and second-order reasons that form the practice and give it meaning. This entails that interpretation of customary international law focuses on dynamics of reasons, their inclusion and exclusion within an existing normative framework. That is, evolutive interpretation of customary international law is not only possible, it is inevitable. -/- Interpretation as identification does not focus on the normative content of practices, but rather involves showing that existing second-order reasons meet a threshold of legal validity. This threshold may take shape of opinio juris, but may as well be treated functionally, when legality of a practice is linked to its relevance in a broader set of legal practices. (shrink)

South African law currently forbids those seeking to arrange a surrogate motherhood agreement from creating a child that will not be genetically related to at least one of them. For a surrogacy contract to be legally valid, there must be a ‘genetic link’ between the child created through a surrogate and the parents who will raise it. Currently, this law is being challenged in the High Court of South Africa, and in this article I critically explore salient ethical facets of (...) the dispute. I argue that the law is unjust and should be revised. (shrink)

In Eichmann in Jerusalem , Hannah Arendt struggled to defend the possibility of judgment against the obvious problems encountered in attempts to offer legally valid and morally meaningful judgments of those who had committed crimes in morally bankrupt communities. Following Norrie, this article argues that Arendt’s conclusions in Eichmann are equivocal and incoherent. Exploring her perspectival theory of judgment, the article suggests that Arendt remains trapped within certain Kantian assumptions in her philosophy of history, and as such sees the question (...) of freedom in a binary way. The article argues that Adorno’s philosophy of freedom provides the resources to diagnose and overcome Arendt’s shortcomings. Adorno’s position provides a way of embracing the antinomical character of judgment, by emphasising the need for elements of reason and nature in the phenomenon of freedom. In Adorno’s lights, judgment becomes an attempt to express a ‘spirit of solidarity’ with the tragic status of the potentially free but actually unfree subject of modernity. (shrink)

This article examines the operation of “reasonable steps” as a statutory standard for analysis of the availability of the defence of belief in consent in sexual assault cases and concludes that application of section 273.2(b) of the Criminal Code, as presently worded, often undermines the legal validity and correctness of decisions about whether the accused acted with mens rea, a guilty, blameworthy state of mind. When the conduct of an accused who is alleged to have made a mistake (...) about whether a complainant communicated consent is assessed by the hybrid subjective-objective reasonableness standard prescribed by s. 273.2, many decision-makers rely on extra-legal criteria and assumptions grounded on their personal experience and opinion about what is reasonable. In the midst of debate over what the accused knew and what steps were “reasonable” given what the accused knew, the legal definition of consent in section 273.1 is easily over-looked and decision-makers focus on facts that are legally irrelevant and prejudice rational deliberation. -/- That is precisely what we see here; the result is often failure to enforce the law. The author proposes: -/- (a) that section 273.2 be amended to reflect the significant developments achieved in sexual consent jurisprudence since enactment of the provision in 1992; and -/- (b) that, in the interim, the judiciary act with resolve to make full and proper use of the statutory and common law tools that are presently available to determine whether the accused acted with mens rea in relation to the absence of sexual consent. (shrink)

Human rights have a legal and a moral side. In the context of this contribution and from the legal‐philosophical aspect, two characteristics are particularly important in the distinction between law and morals. Law is enacted and set forth in a formalised manner, while morals take effect in an informal way; and law is backed by an institutional system that guarantees sufficient dependability of enforcement (while morals are enforced by means of spontaneous social processes). As regards the classification of (...) human rights, we must differentiate between their domestic, European and global spheres of application: in western constitutional states, human rights are fully juridified as fundamental rights; they are thus both juridical and moral rights. They have likewise assumed a juridical character in the European framework, in particular through the ECHR system, while at the same time remaining moral rights. At a global level, in contrast, there are still substantial deficits in their enforcement. In a long and continuing process, however, the enforcement mechanisms are being progressively strengthened. Human rights are thus at global level now moral rights that are increasingly attaining juridical validity. (shrink)

In this clearly written, impressively researched, and engaging book, Alan Wertheimer makes a distinctive and important contribution to the contemporary literature on the nature and value of consent to sexual relations. Wertheimer’s effort is two-fold. First, and as an informative yet logically distinct backdrop, he provides a specific theory of sexual desire and behavior, viz., evolutionary psychology. Second, he identifies and defends moral and legal principles of valid consent to sex. In chapter-length discussions, Wertheimer shows why matters of consent (...) are significantly more complex than many, including influential feminist scholars, recognize, and in so doing lays the groundwork for the theoretical core of his book: a rights-based theory of sexual coercion. This theory provides powerful grounds for determining when conduct constitutes coercion of the sort that nullifies consent and, when combined with numerous and often-ingenious hypothetical cases, teases out principles of moral and legal consent that are both coherent and reasonable. As a result of this combination of considerations, Wertheimer’s book is unique among recent efforts in this area and the analyses and arguments presented should be of great interest to social psychologists as well as those working in normative ethics and jurisprudence. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (...) (3) we can see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H.L.A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo- American counterparts, is the claim that there is (...) no necessary connection between law and morality. Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness, which is derived from analytical arguments. Furthermore, if this claim to substantial correctness necessarily requires the incorporation of moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim. As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’. One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument. (shrink)

Summary Background Self-binding directives instruct clinicians to overrule treatment refusal during future severe episodes of illness. These directives are promoted as having potential to increase autonomy for individuals with severe episodic mental illness. Although lived experience is central to their creation, service users’ views on self-binding directives have not been investigated substantially. This study aimed to explore whether reasons for endorsement, ambivalence, or rejection given by service users with bipolar disorder can address concerns regarding self-binding directives, decision-making capacity, and human (...) rights. Methods This study used qualitative data from an internet-based survey distributed to the mailing list of the UK charity Bipolar UK, which contained multiple closed and open questions on advance decision-making in bipolar disorder. Quantitative analysis of a closed question about self-binding directives had already demonstrated endorsement amongst a very high proportion of participants with bipolar disorder who completed the survey. We conducted thematic analysis of responses from those participants who answered a subsequent open question about reasons for their view. Research was co-produced within a multi-disciplinary team, with clinical, legal, and ethical expertise, and lived experience of bipolar disorder. Ideas and methodologies associated with all these areas of expertise were used in the analysis of these reasons and to gain insight into the thoughts of individuals with bipolar disorder about self-binding directives and associated issues. Findings Between Oct 23 and Dec 5, 2017, 932 individuals with a self-reported clinical diagnosis of bipolar disorder completed the internet survey, with 565 (154 men; 400 women; 11 transgender or other) providing free text answers to the open question. A large majority of respondents endorsed self-binding directives, nearly all describing a determinate shift to types of distorted thinking and decision-making when unwell as their key justification. Responses indicating ambivalence were dominated by logistical concerns about the drafting and implementation of self-binding directives, while those who rejected self-binding directives also cited logistical concerns, validity of their thinking when unwell, and potential contravention of human rights. Interpretation This study is, to our knowledge, the first large study of reasons why mental health service users might endorse or reject the use of self-binding directives. The findings provide empirical support for introducing self-binding directives into mental health advance decision-making practice and policy and may help to address enduring ethical concerns surrounding possible implementation of the directive while a person retains decision-making capacity. The opinions expressed here in responses given by multiple service users with bipolar disorder challenge a prominent view within international disability rights debates that involuntary treatment and recognition of impaired mental capacity constitute inherent human rights violations. Funding The Wellcome Trust . (shrink)

The article is concerned with the general characteristics of Aristotle’s theory of a genus-differentia definition. The authors examine the validity of the definitions in the framework of legal language and present some objections against the definitions of per genus proximum et differentia specificam as they are considered by Aristotle. At the same time, through the objections to the position of genus-differentia definition critics, it is proved that in a number of cases Aristotle’s theory is more preferable than the (...) approach offered by Herbert Hart, the proponent of analytical legal philosophy. The argument of Peter Hacker is used to reinstate Aristotle’s genus-differentia definitions. (shrink)

It’s widely accepted that normativity is not subject to truth values. The underlying reasoning is that truth values can only be predicated of descriptive statements; normative statements are prescriptive, not descriptive; thus truth value predicates cannot be assigned to normative statements. Hence, deonticity lacks logical semantics. This semantic monism has been challenged over the last decades from a series of perspectives that open the way for legal logics with imperative semantics. In the present paper I will go back to (...) Kant and review his understanding of practical judgments, presenting it as supported by a pluralistic semantics. From this perspective a norm of Law is a logical expression that includes as content a generic description of a possible behavior by a generality of juridical agents, and assigns to that content the assertion of its obligatory character, accompanied by a disincentive for non-compliance. From this perspective legal norms can be syntactically formalized and assigned appropriate semantic values in such terms that they can be incorporated into valid inferential schemes. The consequence is that we can put together legal logics that handle both the phenomenal and the deontic dimensions of legality. (shrink)

This Article draws attention to a conceptual point that has been overlooked in recent discussions about the theoretical foundations of contract law. I argue that, rather than enforcing the obligations of promises, contract law concerns complaints against promissory wrongs. This conceptual distinction is easy to miss. If one assumes that complaints arise whenever an obligation has been violated, then the distinction does not seem meaningful. I show, however, that an obligation can be breached without giving rise to a valid complaint. (...) This Article illustrates the importance of this conceptual distinction by focusing first on the doctrine of substantive unconscionability. I claim that the doctrine can be best explained by the way in which a party who engages in exploitative behavior may lose her moral standing to complain. It is because such a party has lost her moral standing to complain that the law, through unconscionability doctrine, bars her from bringing a legal complaint. This explanation avoids the oft-issued charge of paternalism and it also offers benefits over an alternative state-oriented account developed recently by Seana Shiffrin. Using the conceptual distinction behind this account of unconscionability, this Article further argues that recent theoretical debates about the relationship between contract law and morality have been largely misconceived. Those debates have focused on whether contract law and morality impose parallel obligations. Once one appreciates the difference between imposing obligations and recognizing complaints, the comparison looks quite different. Contract law recognizes valid complaints against broken promises, much as morality recognizes moral complaints. (shrink)

Rules are meant to apply equally to all within their jurisdiction. However, some rules are frequently broken without consequence for most. These rules are only occasionally enforced, often at the discretion of a third-party observer. We propose that these rules—whose violations are frequent, and enforcement is rare—constitute a unique subclass of explicitly codified rules, which we call ‘phantom rules’ (e.g., proscribing jaywalking). Their apparent punishability is ambiguous and particularly susceptible to third-party motives. Across six experiments, (N = 1440) we validated (...) the existence of phantom rules and found evidence for their motivated enforcement. First, people played a modified Dictator Game with a novel frequently broken and rarely enforced rule (i.e., a phantom rule). People enforced this rule more often when the “dictator” was selfish (vs. fair) even though the rule only proscribed fractional offers (not selfishness). Then we turned to third person judgments of the U.S. legal system. We found these violations are recognizable to participants as both illegal and commonplace (Experiment 2), differentiable from violations of prototypical laws (Experiments 3) and enforced in a motivated way (Experiments 4a and 4b). Phantom rule violations (but not prototypical legal violations) are seen as more justifiably punished when the rule violator has also violated a social norm (vs. rule violation alone)—unless the motivation to punish has been satiated (Experiment 5). Phantom rules are frequently broken, codified rules. Consequently, their apparent punishability is ambiguous, and their enforcement is particularly susceptible to third party motives. (shrink)

Relying on euthanasia’s definitionally derived set of propositions to provide its purpose, claims, and benefit, we obtain the core concept. Nonetheless, given its core concept, euthanasia is demonstrated to provide no benefit to the animal to justify its use. Euthanasia 1) cannot possibly, and therefore does not, end unbearable suffering, 2) it fails to hasten death, and 3) it, therefore, provides no perceptible relief to the patient. These findings are significant because the argument’s validity does not permit euthanasia to (...) satisfy its definitionally derived purpose, claims, or benefit on logical grounds. In other words, the argument is that as a form of legalized assisted suicide, euthanasia is wrong but not in the way principled arguments would suggest. Additionally, irrespective of euthanasia actually doing what it claims, if it is allowed to be provisioned, then euthanasia will affect vulnerable populations exactly like nonprincipled arguments claim. Therefore, despite sharing aspects with each type of argument in the extant literature, my argument against euthanasia can be categorized as neither principled nor nonprincipled, which makes it significant because it may be the first of a new category of argument against the concept and practice to enter the discourse on euthanasia. As a corollary, since we prove that unbearable suffering logically entails death, when it is authentic signifying that death is imminent, because euthanasia’s only purpose is to end unbearable suffering by inducing death, euthanasia is completely obviated. (shrink)

A dilemma exists when a doctor is faced with a child or young person who refuses medically indicated treatment. The Gillick case has been interpreted by many to mean that a child of sufficient age and intelligence could validly consent or refuse consent to treatment. Recent decisions of the Court of Appeal on a child's refusal of medical treatment have clouded the issue and undermined the spirit of the Gillick decision and the Children Act 1989. It is now the case (...) that a child patient whose competence is in doubt will be found rational if he or she accepts the proposal to treat but may be found incompetent if he or she disagrees. Practitioners are alerted to the anomalies now exhibited by the law on the issue of children's consent and refusal. The impact of the decisions from the perspectives of medicine, ethics, and the law are examined. Practitioners should review each case of child care carefully and in cases of doubt seek legal advice. (shrink)

This interview explores the extent to which Kant’s philosophy, which postulates certain moral principles categorically, has influenced the contemporary theory of justice. Many academics believe such principles to be relative and emphasise that justice lies beyond the remit of science. Otfried Höffe is convinced that categorical legal principles remain a valid subject for an academic discussion. In his works, he often appeals to Kantian philosophy. In the interview, Prof. Dr. О. Höffe refers to such famous German Neo-Kantian philosophers of (...) law as R. Stammler and G. Radbruch. He also mentions J. Rawls and J. Habermas — self-confessed adherents of the Kantian tradition in moral philosophy. Prof. Dr. Höffe expounds his views on the problems discussed by these authors. He dismisses G. W. F. Hegel’s criticism of Kant and denies the dependence of the fundamental principles of justice on the Zeitgeist and the opinions of the masses. The interviewee calls freedom the supreme human value, advocates the idea of a democratic constitutional state (he considers the principles of a social state as a mission of the state rather than a subjective right of citizens), and argues that dictatorship and tyranny deserve resistance. Prof. Dr. Höffe gives detailed definitions of the notions of transcendental exchange, categorical legal principles, enlightened liberal democracy, and a world republic. This interview will supplement the body of Prof. Dr. Höffe’s works that have already been translated into Russian. (shrink)

This essay strikes new paths for investigating the politics of translation and the (non-) universality of the concept of “human rights” by engaging them in a critical dialogue. Part I of my essay argues that a truly universal concept would have available linguistic equivalents in all languages. On this basis, I develop translation into a tool for disproving the claim that the concept human rights is universal. An inaccurate claim to universality could be made to look valid, however, if one (...) culture dominates over others, and manages to impose its own concepts and exclude competitors. Part II explores how human rights, initially a modern Western concept, became more and more universalized as a result of the global reach of Western political and economic power. I attempt to shed new light on the subject by investigating the role of translation in bringing about the global hegemony of Western legal and political languages and concepts. Since translation always involves a choice of foregrounding one of the two languages and cultures involved, the translator is a power broker who can promote one voice at the expense of the other. My examples for conducting this investigation are the key contributions made by China and the West to the drafting of the UDHR: with ren and rights representing respectively the West and China’s proposed solutions to crimes against humanity in the immediate aftermath of World War II. While the concept rights became increasingly assimilated into the Chinese language along with her repeated defeats by colonial powers (and was already firmly established in the Chinese vocabulary by the time of the drafting of the UDHR), ren by contrast has never been included by any Western language and culture. (shrink)

Conscientious objection in health care is a form of compromise whereby health care practitioners can refuse to take part in safe, legal, and beneficial medical procedures to which they have a moral opposition (for instance abortion). Arguments in defense of conscientious objection in medicine are usually based on the value of respect for the moral integrity of practitioners. I will show that philosophical arguments in defense of conscientious objection based on respect for such moral integrity are extremely weak and, (...) if taken seriously, lead to consequences that we would not (and should not) accept. I then propose that the best philosophical argument that defenders of conscientious objection in medicine can consistently deploy is one that appeals to (some form of) either moral relativism or subjectivism. I suggest that, unless either moral relativism or subjectivism is a valid theory—which is exactly what many defenders of conscientious objection (as well as many others) do not think—the role of moral integrity and conscientious objection in health care should be significantly downplayed and left out of the range of ethically relevant considerations. (shrink)

The aim of this study is to proof the argument – i.e. ‘there are significant linkages amongst tolerance, hybrid identities and migration.’ These linkages can be comprehended by means of conceptualising extensions of hybrid identities in aggregate trans/inter-migration processes. It can be put forward that arising hybrid identities are embedded in a blurring structure of thoughts, beliefs, states of affairs, facts, belongings and so forth. From multiculturalism and cosmopolitanism viewpoints, it is argued that tolerance and migration ought to be analysed (...) in frame of sociology of law, human rights, international migration law, and of course the European Union law. So far, normative arguments and soft law approaches are very much well integrated with social aspects of migration, tolerance, identity and culture. In this context, the study examines to what extent cultural and human components are protected by law in multiple levels from an interdisciplinary perspective. In this framework, it is crucial to raise the research enquiries: What are possible criteria for the limits of tolerance? To what extent tolerance is related to human rights and morality? What ought to be the limit of tolerance towards hybrid identities in multicultural and cosmopolitan societies? In a consistent manner, the criteria and standards developed by some leading scholars were reconstructed and discussed throughout this paper. These criteria and standards are both moral (part of a universal system of morality) and legal (international, supranational, or national – i.e. constitutional). In order to apply such standards their validity was discussed (i.e. the respective normative power has the norms at the various levels). In the case of morals, their difference to particular ethnic systems was established (i.e. criteria by which the two can be distinguished). Then the research argument was elaborated on whether and how the legal standards comply with the moral standards, how national standards comply with supranational or international standards. Likewise, the study highlights the crucial contributions of “World Society and World System Paradigms” that are associated with social space, global civil society, cosmopolitanism, ethnic diversity, cultural hybridity, human rights activism and public sphere. Recent debates in Refugee Studies (e.g. Syrian Refugee Crisis, Dual and Multiple Citizenship Issues and so forth) highlight the fact that the European Union needs to consider new aspects of tolerance for hybrid identities and tolerate cultural rights of hybrid identities, create cohesion in communities and establish intercultural dialogue amongst home-states and host-states. Sanguinely, the efforts of hybrid identities are strengthening the relations between home-host states and these ought to attract some considerable attention. The authors of this study hope that their endeavours may contribute somewhat towards that. (shrink)

Equal Justice explores the role of the idea of equality in liberal theories of justice. The title indicates the book’s two-part thesis: first, I claim that justice is the central moral category in the socio-political domain; second, I argue for a specific conceptual and normative connection between the ideas of justice and equality. This pertains to the age-old question concerning the normative significance of equality in a theory of justice. The book develops an independent, systematic, and comprehensive theory of equality (...) and egalitarianism. The principal question is about the importance of equality in a theory of justice. More precisely, we should pose questions in four contracting circles: 1. Is justice the supreme value guiding our setup of the basic structure of society, or are there other, equally important values, such as recognition, care, communal belonging? 2. If justice is the highest guiding principle, which competing ideals—especially equality and freedom—ought to have precedence in a policy oriented toward justice? What status does the ideal of equality have in that framework? 3. If equality is a basic ideal of just policy, how should it be practically realized? What sort of equality (equal opportunity, equality of welfare, resource equality) should be demanded? 4. What patterned distribution of which specific goods does the ideal of equality demand? Which principles of distribution can be justified according to our justice ideal? To conclude and summarize: 5. What is the essential core of an egalitarian theory of justice, as opposed to an inegalitarian theory? These five questions structure the work’s order of argumentation. Part A elaborates the conceptual foundations and basic moral principles of justice and equality. Chapter I sets out to install justice as the central moral category in the socio-political domain. At the beginning of the first chapter, the conceptual foundations of justice are clarified. While not eliminating the classical distinctions between different forms of justice, I argue that the distributive paradigm is of primary importance. The primacy of justice in the socio-political domain is developed out of a confrontation with alternative positions, those which maintain either that justice generally, or distributive justice in particular, are subsidiary virtues. At the end of Chapter I, the first of the questions mentioned above is answered in a way that establishes justice as the guiding normative concept for the foundation and evaluation of any social order. To clarify the role of equality in a theory of justice, Chapter II separates the idea of equality into four different principles. They are organized in a way that begins with the most general and uncontroversial principle of equality, and progresses towards increasingly detailed and contested principles. There are two theses that articulate and defend the significance of equality for justice: First there is a conceptual connection between justice and equality, in that principles of formal and proportional equality are necessary in order to explicate the concept of justice. These two principles establish an unbreakable bond between justice and equality. Justice can only be explained—or so I argue—by reference to these and other (normative) principles of equality. The second thesis posits a normative relationship between justice and equality, which is disclosed by three substantive principles of equality: moral equality, the presumption of equality, and the principle of responsibility. I argue that the normative core of an egalitarian theory of justice is expressed by the latter two principles, which are themselves based on the first principle, that of moral equality. When we view one another as persons, what form of equality or equal treatment is normatively demanded? I argue that the answer to this question is given by the procedural principle of the presumption of equality: regardless of their apparent differences, all persons deserve strictly equal treatment, unless certain kinds of differences have whatever particular relevance would justify, on generally acceptable grounds, unequal treatment or unequal distribution. The justification of the presumption of equality is central to this work and has considerable importance. If the presumption principle’s validity can be justified by enlisting the principle of general justification, then the primacy of equality, and the essential argument for an egalitarian theory of justice, is established. This would likewise provide a procedure for the construction of a material theory of justice. The second question is answered thereby at the end of Chapter II: Equality should have primacy over competing ideals within a justice-oriented policy. The presumption of equality establishes this primacy and, at the same time, offers an appropriate metric and guideline for the construction of a material theory of distributive justice. The presumption of equality in Part B offers an elegant procedure for the development of a theory of distributive justice. Chapter III clearly sets out the necessary prerequisites that a theory of distribution must satisfy in order to determine a liberal-egalitarian distributional framework. We need to specify in which situation the distribution takes place; which goods are and are not to be distributed; in which respect the presumptive equality is to be produced; and by and to whom, and for what period, the relevant goods are to be distributed. The distribution is based on resources understood as general-purpose means. It is necessary to divide goods into different categories, since the justification for unequal treatment in one domain will not carry over into another. This makes presumptive equality necessarily complex. To that end, four spheres of justice are distinguished: (1) the political sphere, which involves allocating rights through the distribution of civil liberties; (2) the democratic sphere, in which political power and the rights of political participation are regulated; (3) the economic sphere, in which income and property are distributed; (4) the social sphere, in which social positions and opportunities are distributed. This framework of distributive justice answers the third of our guiding questions, about the nature of equality, in terms of equality of resources. Chapters IV and V set out the egalitarian distributive criteria for each sphere. I argue that the generally accepted, fundamental rights of classical liberalism are more effectively reconstructed by reference to the equal resource distribution presumptively required in those spheres. Chapter IV shows that when it comes to the first two spheres, those involving basic rights and freedoms and entitlement political participation, there can be no justified exceptions to the equal distribution of the relevant goods. That section argues, contrary to what we commonly find in theories of freedom or popular sovereignty, that the value of freedom and self-determination as the political basis of autonomy is best realized through the presumption of equal distribution. Chapter V deals with the other two spheres, those of economic goods and social positions, and argues for justified exceptions to equal distribution. In the economic sphere we find one principal reason favouring unequal distribution of resources, and three restrictions and compensations limiting that inequality. The basic exception to equal economic distribution arises from the unequal consequences of personal responsibility. From a suitably egalitarian standpoint, the principle of responsibility is the normative principle that determines which reasons justify economic inequality. Here the basic idea is that unequal shares of social goods are fair if they result from the choices and deliberate actions of the relevant parties. That individuals have to bear the costs of their own choices is a condition of autonomy. However, benefits or disadvantages arising from arbitrary and unmerited differences in social circumstances or natural endowments is unfair. The unequal consequences of independent decision-making and action must therefore be limited by compensating first for preferences, secondly for disadvantages, and thirdly by redistributing wealth in aid of the worse-off. I situations of emergency, compensating for disadvantages has priority over all other claims, owing to the urgency of the situation. Social inequalities go beyond the permissible limit if it is possible to improve the long-term social or economic situation of the worse-off by redistributing wealth to them. These exceptions lead to a complex system of free economic action within a framework of compensatory tax and transfer mechanisms. Finally, in the social sphere, the distribution of social positions, offices and opportunities must be structured to ensure that equally talented and motivated citizens have roughly equal chances of obtaining those offices or positions, irrespective of their economic or social class backgrounds. This compromise is permissible for reasons of freedom and prudence, and it makes a certain measure of inequality acceptable. The fourth of our guiding questions is answered accordingly. There are five principles of justice for the basic structure of society, and five legal principles that govern the special distribution of goods in the respective spheres—all are ranked according to their most defensible grounds of priority, ensuring that everyone is accorded equal justice. Chapter VI recapitulates the initial question of equality’s value. The conception of equal justice developed in this work postulates five principles of equality and five principles of law; these constitute an egalitarian framework because they support and promote social justice. Equality has value with respect to them, but is not given any independent, intrinsic value. That is why I call the account developed here a form of constitutive egalitarianism: justice is realized through the realization of equality, itself accomplished by applying the five postulates of equality and five distributive principles of law. This is an egalitarianism on two levels. The first level is involves the claim that morality or justice is conceptually connected with equality. The second level gives equality a substantial weight in what is conceptually validated at the first level, namely the presumption of equality, and constructs an appropriate interpretation and conception of distributive justice through principles of distribution for the individual spheres. The weight and importance of equality is shown by the distributive criteria applied to those spheres. This answers our final guiding question about the nature of an egalitarian theory. (shrink)

In the past months, there has been a lively debate about so-called COVID-19 apps developed to deal with the pandemic (Morley et al. 2020b). Some of the best solutions use the Bluetooth connection of mobile phones to determine contacts between people and therefore the probability of contagion, and then suggested related measures. In theory, it may seem simple. In practice, there are several ethical problems (Morley et al. 2020a), not only legal and technical ones. To understand them, it is (...) useful to distinguish between the validation and the verification of a system, remembering that these words are used here only in the design/engineering sense, and certainly not philosophically. The validation of a system answers the following question:“are we building the right system?”. (shrink)

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structure and function of justification defenses. The reason for this failure, I suggest, is a widely shared misconception about their place within the criminal law’s institutional structure. Contrary to what is generally believed, it is not up to trial courts to decide ex post (...) facto what conduct is justified and what is not. This determination is made ex ante by other institutional actors such as private fiduciaries, public officials, and sometimes, ordinary citizens caught in extraordinary circumstances. The court’s role is simply to review the validity of that prior exercise of decision-making discretion. More broadly, my study is intended to serve as a reminder of the importance of institutional structure in criminal law. It is almost always misleading to address issues in criminal law by way of abstract moral theorizing, as is often done, because this leaves out the crucial question of institutional division of labor. Before addressing the substantive aspect of particular questions—what conduct should be prohibited, justified, or excused—we must first address ourselves to the institutional questions that I have called the problems of authority, discretion, and legality. These institutional questions receive their most thorough treatment in two other areas of law: the private law of fiduciaries and public administrative law. If we wish to make progress in understanding justification defenses—and the institutional structure of criminal law more generally—I argue that it is to these areas of law that we should attend. (shrink)

Ethical extensionism is a common argument pattern in environmental and animal ethics, which takes a morally valuable trait already recognized in us and argues that we should recognize that value in other entities such as nonhuman animals. I exposit ethical extensionism’s core argument, argue for its validity and soundness, and trace its history to 18th century progressivist calls to expand the moral community and legal franchise. However, ethical extensionism has its critics. The bulk of the paper responds to (...) recent criticisms, including (1) environmental ethicists’ objection against its austere conception of moral value (2), feminist ethicists’ claim that extensionism fails to account for the moral significance of difference, (3) disability theorists’ concern that ethical extensionist arguments are offensive, and (4) animal rights theorists’ lament that extensionism is a practical failure. While something is to be gained from each criticism, I argue that they ultimately fail and that extensionism remains compelling. (shrink)

From the end of the twelfth century until the middle of the eighteenth century, the concept of a right of necessity –i.e. the moral prerogative of an agent, given certain conditions, to use or take someone else’s property in order to get out of his plight– was common among moral and political philosophers, who took it to be a valid exception to the standard moral and legal rules. In this essay, I analyze Samuel Pufendorf’s account of such a right, (...) founded on the basic instinct of self-preservation and on the notion that, in civil society, we have certain minimal duties of humanity towards each other. I review Pufendorf’s secularized account of natural law, his conception of the civil state, and the function of private property. I then turn to his criticism of Grotius’s understanding of the right of necessity as a retreat to the pre-civil right of common use, and defend his account against some recent criticisms. Finally, I examine the conditions deemed necessary and jointly sufficient for this right to be claimable, and conclude by pointing to the main strengths of this account. Keywords: Samuel Pufendorf, Hugo Grotius, right of necessity, duty of humanity, private property. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, (...) rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

Abstract: In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the (...) principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802. -/- Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV). -/- My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis. -/- Keywords: Equal protection, double effect, intention, physician-assisted suicide, Constitutional Law, Bioethics. (shrink)

Every person has his/her own unique signature that is used mainly for the purposes of personal identification and verification of important documents or legal transactions. There are two kinds of signature verification: static and dynamic. Static(off-line) verification is the process of verifying an electronic or document signature after it has been made, while dynamic(on-line) verification takes place as a person creates his/her signature on a digital tablet or a similar device. Offline signature verification is not efficient and slow for (...) a large number of documents. To overcome the drawbacks of offline signature verification, we have seen a growth in online biometric personal verification such as fingerprints, eye scan etc. In this paper we created CNN model using python for offline signature and after training and validating, the accuracy of testing was 99.70%. (shrink)

The late scholastics, from the fourteenth to the seventeenth centuries, contributed to many fields of knowledge other than philosophy. They developed a method of conceptual analysis that was very productive in those disciplines in which theory is relatively more important than empirical results. That includes mathematics, where the scholastics developed the analysis of continuous motion, which fed into the calculus, and the theory of risk and probability. The method came to the fore especially in the social sciences. In legal (...) theory they developed, for example, the ethical analyses of the conditions of validity of contracts, and natural rights theory. In political theory, they introduced constitutionalism and the thought experiment of a “state of nature”. Their contributions to economics included concepts still regarded as basic, such as demand, capital, labour, and scarcity. Faculty psychology and semiotics are other areas of significance. In such disciplines, later developments rely crucially on scholastic concepts and vocabulary. (shrink)

This article draws upon the epistemology of testimony to analyse recent English case law on expert evidence. It argues that the courts are implicitly committed to an internalist epistemology and an inferentialist view of testimony, and draws a distinction between testimony which is treated as authoritative (where the fact-finder accepts the inferences drawn by the expert without attempting to assess their validity) and that which is treated as merely persuasive.

The double subjectivity of conscience and the need to test conscientious objections -/- Abstract In spite of the collapse of the traditional objective concept of conscience and the subsequent subjectivation of conscience, conscientious objections are still often considered as a valid ground for exemption from legal and professional obligations. Conscientious objections are seen as more serious than ordinary moral objections. It is not evident why this is so. I argue, with Niklas Luhmann, that the function of conscience is to (...) protect the moral core of a person’s identity. Overruling conscientious objections threatens this core. Claims of conscience are usually founded on the right of freedom of conscience. This right is not absolute. I discuss the view of Richard Arneson who rejects the right of freedom of conscience and defends the right against conscience. I agree with Arneson that, at the one hand, conscientious objectors may constitute a threat to the social and legal order when their objections are not recognised and, at the other hand, too easy giving in to conscientious objections may also threaten the viability of social and legal order. That is why it is needed to determine when conscientious objections cannot be taken at face value, but should be subjected to a series of tests. The aim of these tests is to contain the number of objectors. I discuss 6 criteria for determining whether conscientious objections ground an exemption to legal and professional obligations. At the end of the article I discuss the conscientious objections of medical doctors. (shrink)

The classification of preserved hypothalamic activity in brain death and brainstem death as functional or non-functional has become a subject of debate. While proponents of the neurological criterion claim that these activities lack functional significance (Shemie et al. 2014), Nair-Collins and Joffe (2023) argue for their functional physiological role. However, the interpretation of the term "function" within the medico-legal framework, where death is characterized by the irreversible cessation of all brain functions, remains unclear. -/- My intention here is not (...) to engage in a debate over the validity of different viewpoints regarding the functional significance of preserved activities in the hypothalamus or the heart. Rather, I aim to highlight the critical importance of exploring and defining the concept of function in medicine, which currently lacks clarity. My point is that, whatever our position in the brain death debate, reaching a consensus on this conceptual matter would minimize misunderstandings and establish a robust foundation for further insightful analysis. (shrink)

Domestic courts have attained prominent status in the international human rights system. While adjudicating individual claims and interpreting legal provisions, domestic courts have conveyed meanings that are integral to the working of the international human rights system. The dynamism of domestic courts is an undeniable quality, through which they incorporate diverse perspectives based on principles linked to individual sovereignty, justice, peace, etc. In this paper, the role of the Indian Supreme Court has been discussed in light of three landmark (...) decisions where the court applies international and domestic human rights standards to substantiate its interpretations. In light of the cases of Navtej Singh v. Union of India, Joseph Shine v. Union of India, and KS Puttaswamy v. Union of India, the paper examines the approach of the court under five broad headings: (a) the domestic context, (b) autonomy and determination, (c) constitutional parameters and validity of laws (d) vulnerability, and (e) other courts and other contexts. On the role of domestic courts in general, the paper outlines a list of the contributions that domestic courts are making in the field of human rights.]. (shrink)

This article discusses an anomaly in the English law of reproductive liability: that is, an inconsistency between the law’s approach to wrongful life claims and its approach to cases of negligent selection of gametes or embryos in infertility treatments (the selection cases). The article begins with an account of the legal position, which brings into view the relevant inconsistency: while the law treats wrongful life claims as non- actionable, it recognises a cause of action in the selection cases, although (...) the selection cases bear a relevant resemblance to wrongful life claims. The article then considers arguments that may be invoked in an attempt to reconcile the above two strands of the law. Three of these counterarguments consist in attempts to distinguish the selection cases from wrongful life claims. It is argued that these attempts fail to reveal a valid basis for treating these situations differently. A fourth possible counterargument levels against the present analysis a charge of reductio ad absurdum. It is shown that this argument suffers from a fundamental flaw caused by confusion between different senses of the term “identity”. Finally, the article discusses possible changes to the legal position that could rectify the problem. It argues that one of these changes, which focuses on legal redress for violation of personal autonomy, is particularly apt to resolve the problem at hand, but also highlights the need for further inquiry into the broader implications of introducing this form of redress into the law of torts. (shrink)

The papers of this special issue are the outcome of a two-­‐day conference entitled “The Second-­‐Person Standpoint in Law and Morality,” that took place at the University of Vienna in March 2013 and was organized by the ERC Advanced Research Grant “Distortions of Normativity.” -/- The aim of the conference was to explore and discuss Stephen Darwall’s innovative and influential second-­‐personal account of foundational moral concepts such as „obligation“, „responsibility“, and „rights“, as developed in his book The Second-­‐Person Standpoint: Morality, (...) Respect, and Accountability (Harvard University Press 2006) and further elaborated in Morality, Authority and Law: Essays in Second-­‐Personal Ethics I and Honor, History, and Relationships: Essays in Second-­‐Personal Ethics II (both Oxford University Press 2013). -/- With the second-­‐person standpoint Darwall refers to the unique conceptual normative space that practical deliberators and agents occupy when they address claims and demands to one another (and to themselves). The very first sentence of Darwall’s examination of the second-­‐personal conceptual paradigm summarizes the gist of the argument succinctly when he claims that “the second-­‐person standpoint [is] the perspective that you and I take up when we make and acknowledge claims on one another’s conduct and will.” (Darwall 2006, 3) The Second-­‐Person Standpoint reminds us that this perspective has been ignored for much too long and that it better take centre stage in any philosophical analysis of moral phenomena, in order to yield a satisfying account of morality as a social institution. The negative part of Darwall’s strategy is to show that neither a purely first-­‐personal approach (represented by Kant and contemporary Kantians), nor a third-­‐personal state-­‐of-­‐affairs-­‐perspective (represented by most varieties of contemporary consequentialism) are capable of accounting for the categorical bindingness characteristic of moral obligation. The latter feat can only be accomplished, and this is the positive part of Darwall’s argument, when those second-­‐ personal normative “felicity conditions” and conceptual presuppositions are acknowledged and spelled out that are already presupposed in every instance of issuing (putatively valid) claims and demands. It is especially second-­‐personal competence and second-­‐personal authority that are the bedrock of these normative conceptual presuppositions, without which engaging in any meaningful address would be impossible. Kantians and utilitarians alike have neglected this critical dimension of the normative landscape. -/- In addition to working out an original conception of moral obligation, the first eight chapters of The Second-­‐Person Standpoint articulate this fundamental insight with respect to a variety of traditional projects in ethical theory such as developing accounts of moral responsibility, rights, dignity, and autonomy. In this context, special emphasis is to be awarded, on the one hand, to Darwall’s refreshing second-­‐personal interpretation of Strawson’s influential account of reactive attitudes and moral responsibility and, on the other, to his historically well-­‐informed reconstruction of Samuel Pufendorf’s often neglected version of an enlightened theistic voluntarism concerning moral authority. Darwall dedicates the second part of The Second-­‐Person Standpoint to the urgent question: how should one respond to the sceptical challenge that expresses utter indifference to the second-­‐person standpoint, including all its multifarious normative presuppositions and implications? What commits us to all this? It is at this point that Darwall, firstly, refines his criticisms of the Kantian, first-­‐personal, paradigm of normativity and emphasizes that only if one already incorporates the second-­‐personal conceptual apparatus into a Kantian analysis of moral obligation is the latter going to yield a convincing account. Secondly, and this certainly is one of the highlights of Darwall’s theory, the Second-­‐Person Standpoint employs themes from Fichte’s philosophy of right in order to strengthen the case for the inescapability of taking up the second-­‐person standpoint of moral obligation. In his contribution for this special issue Darwall further develops his diagnosis that Fichte’s thought offers in many respects a more promising, since more second-­‐personal, foundation of morality than, for example, Kant’s. -/- By now, the impact of Darwall’s second-­‐person standpoint theory has far transcended the confines of contemporary debates on moral obligation. Darwall has put to use the second-­‐personal apparatus to critical engagements with Joseph Raz’s theory of legal authority and Derek Parfit’s convergence arguments for his recent Triple Theory of moral wrongness. The constant theme that unifies all these diverse applications remains the one so impressively presented in The Second-­‐Person Standpoint: without paying attention to the “interdefinable” and “irreducible” circle of (four) foundational second-­‐ personal concepts (valid demand, practical authority, second-­‐personal reason, and accountability), neither superior epistemic status (Raz) nor the identification of optimific states of affairs (Parfit) are potent enough sources to generate anything close to the authority relationships that underlie the idea involved in obligating ourselves and one another. Given all of the above, it comes as no surprise that Darwall reserves his strongest sympathies for a specific ethical theory, namely contractualism. Our commitment to equal basic second-­‐personal authority, that Darwall arrives at through his Fichtean rectification of the Kantian project, leads him to the endorsement of a contractualist paradigm in the spirit of broadly Rawls and Scanlon. -/- . (shrink)

Acting morally comes at a price. The fewer people act morally, the dearer moral acts will be to those who perform them. Even if it could be proven that a certain moral norm were valid, the question might still be open whether, under certain circumstances, the demand to follow it meant asking too much. The validity of a moral norm is independent from actual compliance. In that regard, moral norms differ from legal rules. A law that nobody obeys (...) has eroded and thus lost validity; a moral norm that nobody keeps, however, may still be valid. Yet the latter point does not render the question obsolete whether demanding obedience to a specific moral norm, under certain circumstances, could mean asking too much. The costs incurred might be, on the one hand, individual costs. But there may, on the other hand, also be moral costs of obeying a certain moral norm. For an individual might also have responsibilities towards others near her, e.g., her family or peers; acting in accordance with the strict moral standard, then, could do harm not just to her but also to those who rely, and must rely upon her. Yet to define moral limits to following moral rules appears to be self-defeating. (shrink)

In “Immigration, Jurisdiction and Exclusion”, Michael Blake develops a new line of argument to defend a state’s presumptive right to exclude would-be immigrants. His account grounds this right on the state as a legal community that must protect and fulfill human rights. Although Blake’s present argument is valid and attractive in being less arbitrary than national membership and in distinguishing different types of immigrants’ claims, I dismiss it for being unsound due to a lack of further elaboration. The reason (...) for my rejection is that there is a fundamental problem with the third premise as it stands now. Therefore, I contend that Blake’s argument cannot justify a general exclusion of well-protected would-be immigrants. However, in the final part, I will try to defend a modified version of Blake’s argument from imposed obligations by contending that a state has a presumptive right to exclude if the human rights obligations that are imposed on its residents go beyond a viable threshold. (shrink)

In both popular and scholarly discussions, sexual consent is gaining traction as the central moral consideration in how people should treat one another in sexual encounters. However, while the concept of consent has been indispensable to oppose many forms of sexual violence, consent-based sexual ethics struggle to account for the phenomenological complexity of sexual intimacy and the social and structural pressures that often surround sexual communication and behavior. Feminist structural critique and social research on the prevalence of violation even within (...) consensual sex suggest that consent is insufficient to ground responsibility; a more fundamental orientation toward the value of sexual agency provides a better foundation for sexual ethics. Using feminist critical theory, phenomenology, and black feminist thought, this dissertation develops a socially situated and relational notion of sexual agency and diagnoses how such agency is neglected in prevailing discussions of consent in moral philosophy and legal theory. I argue that the ethical question of responsibility to another in a sexual encounter—apart from juridical considerations—should be reframed around the value of each person’s socially situated practices of agency. Preceding and extending beyond the obligation to gain valid consent for an action, responsibility demands adapting one’s intentions and behaviors in response to the wider range of another’s communicative expressions of agency. However, communicative expressions can be ambiguous or overdetermined by social context and cultural norms; they often offer only provisional traces of agency. To address this inherent uncertainty in intimacy, I propose drawing on insights from Emmanuel Levinas about the dynamic, open-ended nature of relationality, responsibility, and communication. Responsibility toward another does not depend on securing certainty about their “yes” or “no,” but requires responding continuously under conditions of uncertainty and ambiguity, adapting behaviors and intentions to make room for another’s agency despite its opacity. (shrink)

Criminal juries make decisions of great importance. A key criticism of juries is that they are unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstanding their role, to engaging in impropriety such as internet research. Recently, some have even claimed that the use of juries creates injustice on a large-scale, as a cause of low conviction rates for sexual criminality. Unfortunately, empirical research into jury deliberation is undermined by the fact that researchers are unable to (...) study live juries. The indirect sources of evidence used by researchers suffer from various problems, the most important of which is dubious levels of ecological validity. Real jury research—studying live jury deliberation—is controversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral imperative to facilitate real jury research. (shrink)