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By connecting “free” and “dutiful” action, Kant seemed to his contemporaries to have a problem with the imputability of immoral actions. K. L. Reinhold tried to avoid this with a distinction between freedom of choice (Willkür) and practical reason (as expressed through Wille), such that any free action must involve a choice between “selfish” and “unselfish” drives. After Kant rejected Reinhold’s proposed distinction, Fichte defended it by introducing a new distinction between the original, purely “formal” freedom of every spontaneously self-positing I and the “material” freedom that every I strives to achieve. Whereas formal freedom concerns the choice of means to predetermined ends, material freedom determines the ends as well as the means of acting. Fichte shows how a formally free individual might gain material freedom through “reflections” upon formal freedom; freedom of choice is then meant to coincide with the categorical demands of the moral law – and Willkür with Wille. Fichte’s distinction between kinds and degrees of freedom was introduced to resolve the conflict between Kant and Reinhold, but it raises questions as to how one might “freely” acquire material freedom.
My aim in this chapter is to address what looks like a tension in Fichte’s derivation of ethical content for the moral law in his System of Ethics. In the first place, Fichte seeks to derive the content of our duties from our “natural drive [Naturtrieb],” which he defines in terms of our striving for enjoyment. But later in the book we find a second argument that derives the content of our duties from what Fichte calls the conditions of our “I-hood [Ichheit],” namely, our embodiment, intelligence, and sociality. I argue that a careful rereading of Fichte’s notion of a natural drive is consistent with this second derivation. The key to this reading lies in Fichte’s effort to reframe the natural drive through the category of “reciprocal interaction [Wechselwirkung],” which allows us to view the natural drive as a “formative drive [Bildungstrieb]” that is both active and passive. For Fichte, the formative drive amounts to a striving for self-organization, and this striving, I argue, prefigures what becomes the ethical drive to engage in reciprocal interaction with other members of the rational community.
When people in a relationship disagree about their obligations to each other, they need to rely on a method of reasoning that allows the relationship to flourish while advancing each person's private projects. This book presents a method of reasoning that reflects how people reason through disagreements and how courts create doctrine by reasoning about the obligations arising from the relationship. Built on the ideal of the other-regarding person, Contract Law and Social Morality displays a method of reasoning that allows one person to integrate their personal interests with the interests of another, determining how divergent interests can be balanced against each other. Called values-balancing reasoning, this methodology makes transparent the values at stake in a disagreement, and provides a neutral and objective way to identify and evaluate the trade-offs that are required if the relationship is to be sustained or terminated justly.
Using Brian Simpson’s Invitation to Law as an opening, Part I explores that basic idea that law is for lawyers. Law requires study, training, and reflection. Its development cannot rest on intuition alone. The paradigmatic double-sided question for professional growth is, “what is (the) law?” Taking this question as law’s leading query, this part explores the beginnings of Holmes’s jurisprudence and his early efforts to map the common law. It looks closely at Holmes’s understanding of a legal duty and a legal penalty and how he reshaped the Austinian heritage to develop his own notion of a jurisprudential boundary.
Montesquieu assesses Roman politics, philosophy, and religion. He explains in his Dissertation on Roman Politics in Religion (1716) that the Roman republic was designed by Romulus and the early kings of Rome as a theocracy. The goal of Roman paganism was “to inspire fear of the gods in a people who feared nothing, and to make use of that fear to lead them in any way they wished.” In his Discourse on Cicero (1717) Montesquieu expresses unstinting admiration for Cicero both as a statesman and a philosopher, asserting that Cicero’s De Officiis teaches us “what is honorable and beneficial, what we owe to society, what we owe to ourselves, and what we should do as heads of families or as citizens.” In his Dialogue between Sulla and Eucrates (1724) he assesses the conduct of the Roman general and dictator Lucius Cornelius Sulla, observing that he had shown how deadly heroism can be, even when based on sound principle, such as Sulla’s desire to restore the powers of the Roman senate. “For one man to be above humanity,” Montesquieu concludes, all the others pay too dear a price.” Sulla marked out a path toward tyranny that Caesar would surely follow.
The texts in Part Three of the volume reveal Montesquieu’s moral idealism and life-long concern with ethics. He was clearly a moral theorist as well as a political philosopher. In his In Praise of Sincerity (1717) he stresses the importance of providing moral guidance to one’s friends by speaking to them honestly regarding their shortcomings. In his Treatise on Duties (1725) Montesquieu stresses the need, recognized by the Stoics and by Cicero, to observe human duties and attacks Thomas Hobbes by asserting contra Hobbes that there are absolutes of justice traceable to nature and attacks Baruch Spinoza by proclaiming that the world was created by design, not “blind fate.” In his Consideration and Reputation (1725) he observes that we crave the esteem of our friends even more than we desire birth, wealth, positions, and honors, and yet we neglect “probity, good faith, and modesty,” because these traits are undervalued by our friends. In his Discourse on the Equity that Must Determine Judgments and the Execution of Laws (1725) Montesquieu asserts that the “essential virtue” for a judicial magistrate is “justice, a quality without which he is but a monster in society.”
From the standpoint of the universe, all grounds are on a par. However, we must ask not only what duties they generate for agents, but also how agents should prioritize principles of justice that apply to them. The multiplicity of grounds might be problematic at the level of assignments of duties. With a focus on the state as duty bearer, I introduce a general approach to conceptualizing duties of justice within the grounds-of-justice approach. A theory of global justice that recognizes multiple grounds requires a complex view of duty bearers. It takes a differentiated vocabulary to outline duties of diverse agents. Key themes are “refraining” from injustices and “respecting” and “supporting” justice. For agents, not all principles are on a par. For institutions, their own concerns of justice get top priority by default. Adjudication principles help us to consider how the remaining principles apply to the agent.
This introductory chapter provides a brief introduction to the theme of the textbook: transformative classroom management. It outlines the rest of the chapters’ main themes and discussions, and establishes connection as the principal modern precept for managing the class and behaviour in educational environments.
Chapter 1 provides an overview of different theories of justice and how they can inform the development of a civil dimension of international criminal law. This chapter also traces the evolution of different dichotomies of the legal duty to provide reparations and the right to reparation: from perspectives of state versus state, to state versus individual, to individual versus individual. It also outlines the development of a duty to repair for individual perpetrators alongside states’ duty to repair. This introductory chapter thus provides the theoretical foundation that supports the analysis in the following chapters and it sets out the main themes that are discussed throughout the book. This chapter also lays out and discusses some challenges and counterarguments to the inclusion of a reparative dimension to international criminal justice from a theoretical perspective. Finally, this chapter draws on the enlightening jurisprudence of the Inter-American Court of Human Rights.
The ethics of whistleblowing are complex and challenging. On the one hand, there are a strong set of moral reasons why someone ought to blow the whistle when he or she learns of wrongdoing. On the other hand, such actions typically come at a significant cost to the whistleblower and may not bring about any significant change. Both aspects prompt us to ask, why would I be a whistleblower? Emanuela Ceva and Michele Bocchiola's Is Whistleblowing a Duty? answers that question by arguing that one has an organizational duty to blow the whistle. Kate Kenny's Whistleblowing: Toward a New Theory reframes the question, showing how hard it has been for members of the international financial industry to blow the whistle and bring about any effective change to that industry. In this review essay, I suggest that analyses of whistleblowing need to take into account evolving technologies, the importance of loyalty, and special contexts such as whistleblowing in the national security sector.
This chapter considers what sort of duties are generated by the right of resistance and how they might attach to affluent persons. This chapter begins by distinguishing duties of resistance from more often discussed non-ideal duties of justice and assistance. There might be significant similarities between these various groups of duties, but distinguishing them puts the agency of resisting agents in the foreground.
It argues that there are three categories of negative duties: non-intervention, one ought not to directly interfere with resisting agents; non-collaboration, one ought not to assist institutions dedicated to crushing resistance; non-obstruction, one ought not to interfere with organisations assisting resistance. The duties are neither too excessive or too permissive.
There are also positive duties to support resistance. These duties appear to be rather demanding, as shown in the example of French citizens prosecuted for assisting illegal immigrants, but they might be acted on in various non-criminal ways, such as supporting ‘sanctuary city’ policies. These duties may require sacrifices, but the alternative is to allow people to live under much more onerous burdens.
The oft-cited privacy paradox is the perceived disconnect between individuals’ stated privacy expectations, as captured in surveys, and consumer market behavior in going online: individuals purport to value privacy yet still disclose information to firms. The goal of this paper is to empirically examine the conceptualization of privacy postdisclosure assumed in the privacy paradox. Contrary to the privacy paradox, the results here suggest consumers retain strong privacy expectations even after disclosing information. Privacy violations are valued akin to security violations in creating distrust in firms and in consumer (un)willingness to engage with firms. This paper broadens the scope of corporate responsibility to suggest firms have a positive obligation to identify reasonable expectations of privacy of consumers. In addition, research perpetuating the privacy paradox, through the mistaken framing of disclosure as proof of anti-privacy behavior, gives license to firms to act contrary to the interests of consumers.
Contemporary Australian Tort Law is an engaging, accessible and student-friendly introduction to the law of torts in Australia. This unique text covers the foundational topics of tort law in a logical structure, covering duty of care, breaches, negligence, damages and defences, and also branching into higher-level topics such as defamation and offences in public office. Each chapter is supported by tools for self-assessment and self-reflection: review questions at the end of each subheading; case boxes that delve into important historical cases; multiple-choice questions and longer, narrative problems that challenge students to apply the principles they've learnt in the chapter to 'real world' scenarios. This print and eBook combination is an indispensable resource for law students taking their first course in tort law.
In this article I argue that understanding the role that the virtues of love play in Kant’s ethical theory requires understanding not only the nature of the virtues themselves, but also the unique nature of wide Kantian duties. I begin by making the case that while the Doctrine of Virtue supports attributing an affective component to the virtues of love, we are right to resist attributing an affective success condition to these virtues. I then distinguish wide duties from negative and narrow (positive) duties in order to make the case that prudential considerations often unavoidably and unproblematically play a role in deliberation about how we fulfil our wide duties. In the final section I combine these findings, arguing that the virtues of love play an important moral role by shaping these prudential considerations.