Ethics and Political Philosophy Commons^™

Punishment As Contract, Claire Oakes Finkelstein

All Faculty Scholarship

This paper provides a sketch of a contractarian approach to punishment, according to a version of contractarianism one might call “rational contractarianism,” by contrast with the normative contractarianism of John Rawls. Rational contractarianism suggests a model according to which rational agents, with maximal, rather than minimal, knowledge of their life circumstances, would agree to the outlines of a particular social institution or set of social institutions because they view themselves as faring best in such a society governed by such institutions, as compared with a society governed by different institutional schemes available for adoption. Applied to the institution of punishment, …

"Let 'Em Play" A Study In The Jurisprudence Of Sport, Mitchell N. Berman

All Faculty Scholarship

No abstract provided.

Provocation As Partial Justification And Partial Excuse, Mitchell N. Berman

All Faculty Scholarship

The partial defense of provocation provides that a person who kills in the heat of passion brought on by legally adequate provocation is guilty of manslaughter rather than murder. It traces back to the twelfth century, and exists today, in some form, in almost every U.S. state and other common law jurisdictions. But long history and wide application have not produced agreement on the rationale for the doctrine. To the contrary, the search for a coherent and satisfying rationale remains among the main occupations of criminal law theorists. The dominant scholarly view holds that provocation is best explained and defended …

Two Kinds Of Retributivism, Mitchell N. Berman

All Faculty Scholarship

This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).

Whether or not it is ultimately persuasive, consequentialist retributivism …

Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus

All Faculty Scholarship

A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …

Constructing And Disciplining The Working Body: Organisational Discourses, Globalisation And The Mobile Worker, Marian Crowley-Henry, Paul Donnelly

Books/Book Chapters

We consider the ethical treatment of people working in organizations along the relativism/absolutism continuum. Work is a dominant activity in people’s lives and a core part of people’s identities. In it is the managerial realm of Human Resource Management where the focus on the working body primarily resides. The construction and disciplining of the working body is theoretically and empirically explored in this chapter. Do organizations construct and discipline their workforce as a means to their organizational ends (as resources), or do they treat them as means in themselves (as humans)? We trace organizational discourses that emphasize resources rather than …

On A Duty Of Humanitarian Intervention, David Lefkowitz

Philosophy Faculty Publications

Perhaps the most discussed topic amongst just war theorists during the 1990s was the moral (and legal) justifiability of armed humanitarian interventions. Not surprisingly, that changed after the 9/11 terrorists attacks and the invasions of Afghanistan and Iraq, with topics such as the morality of terrorism, torture, and preventive war receiving the lion's share of attention. Nevertheless, for reasons both good, such as the International Commission on Intervention and State Sovereignty's endorsement of a limited duty of intervention in its report, The Responsibility to Protect, and bad, such as the conflict in Darfur, the morality of humanitarian intervention remains …

Liberté, Égalité, Sororité: How Care Ethics Informs Social Justice, Maurice Hamington

Philosophy Faculty Publications and Presentations

Virginia Held has claimed that "there can be care without justice" but "there can be no justice without care." Alternatively, bell hooks has suggested that there can be "no love without justice." What is the relationship between justice and care? Does justice need an emotive, particularist, contextual aspect or is it fundamentally a universal and abstract concept?

Care ethics, as contemporary feminists have defined it, is only a quarter of a century old. When theorists were first struggling to distinguish this new ethical approach, some chose to sharply differentiate it from theories of justice. Now that care ethics has matured …

Replay, Mitchell N. Berman

All Faculty Scholarship

This paper explores a question of superficial triviality: when sports use instant replay technology to review on-field calls, what standard of review should they employ? The conventional view is that on-field calls should be entrenched against reversal such that, if the reviewing official has any doubt about the correctness of the initial call, he must let it stand even if he thinks it very probably wrong. Indeed, in the wake of officiating debacles at last summer‟s FIFA World Cup, commentators proposed not only that soccer employ instant replay, but also that it follow the NFL in directing officials to overturn …

Breaching The Mortgage Contract: The Behavioral Economics Of Strategic Default, Tess Wilkinson-Ryan

All Faculty Scholarship

Underwater homeowners face a quandary: Should they make their monthly payments as promised or walk away and save money? Traditional economic analysis predicts that homeowners will strategically default (voluntarily enter foreclosure) when it is cheaper to do so than to keep paying down the mortgage debt. But this prediction ignores the moral calculus of default, which is arguably much less straightforward. On the one hand, most people have moral qualms about breaching their contracts, even when the financial incentives are clear. On the other hand, the nature of the lender-borrower relationship is changing and mortgage lenders are increasingly perceived as …

On The Study Of Judicial Behaviors: Of Law, Politics, Science And Humility, Stephen B. Burbank

All Faculty Scholarship

In this paper, which was prepared to help set the stage at an interdisciplinary conference held at the University of Indiana (Bloomington) in March, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past – such as indifference, professional self-interest and methodological imperialism -- as well as precedents for cross-fertilization in the future. Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, …

Mercy, Crime Control, And Moral Credibility, Paul H. Robinson

All Faculty Scholarship

If, in the criminal justice context, "mercy" is defined as forgoing punishment that is deserved, then much of what passes for mercy is not. Giving only minor punishment to a first-time youthful offender, for example, might be seen as an exercise of mercy but in fact may be simply the application of standard blameworthiness principles, under which the offender's lack of maturity may dramatically reduce his blameworthiness for even a serious offense. Desert is a nuanced and rich concept that takes account of a wide variety of factors. The more a writer misperceives desert as wooden and objective, the more …

Theories Of Justice To Health Care, Jacob R. Tobis

CMC Senior Theses

In this thesis, many topics will be discussed and a variety of philosophers will be mentioned. The main goal of this thesis is to determine a health care plan that fits with the theories of Robert Nozick, Arthur Ripstein, Norman Daniels, and Amartya Sen. I conclude that Ezekiel Emanuel’s health care plan, The Guaranteed Healthcare Access Plan, can be used as a compromise between the views of each of these philosophers. In reaching such a conclusion, I take many steps. I begin with the explanation of theories of justice and their focus. I then turn to the important distinction between …

We The Peoples Of The United States Of America: Constituting American Identities Through Pluralism And Narrative, Michael .. Yohai

Honors Theses

W. E. B. DuBois writes in his 1897 essay, “The Conservation of Races,” that every black person living in America must, sooner or later, ask herself the following question: “What , after all, am I? Am I an American or am I a Negro? Can I be both? Or is it my duty to cease to be a Negro as soon as possible and be an American?”1 DuBois’ question, “Can I be both?” still lingers for blacks and other non‐white groups in America. However, the racial demographic reality of the America is changing and with it, the connotations of the …

Delta Woman With Faulkner And Hitchcock, Mi-Jeong Kim

Legacy Theses & Dissertations (2009 - 2024)

Lacan, as a post-structuralist, combined Saussure's linguistics with Freud's psychology and linked Derrida's notion of "the other" to his notion of "objet petit a" as the impossible object of the subject's phallic desire, in order to re-think the modern consciousness of "the self." In the Lacanian account, "the other" does not exist as the 'absolute' transcendental without involvement, but ex-sists as the traumatic and 'extimate' exteriority with-in "the self." The ex-centric other is epitomized by the iconic (inverted) triangular center of Lacan's Borromean Knot. As the immanent exteriority of both the subject and the Symbolic, the feminine (w)hole, resembling vaginal …

Managing Moral Risk: The Case Of Contract, Aditi Bagchi

All Faculty Scholarship

The concept of moral luck describes how the moral character of our actions seems to depend on factors outside our control. Implications of moral luck have been extensively explored in criminal law and tort law, but there is no literature on moral luck in contract law. I show that contract is an especially illuminating domain for the study of moral luck because it highlights that moral luck is not just a dark cloud over morality and the law to bemoan or ignore. We anticipate moral luck, i.e., we manage our moral risk, when we take into account the possibility that …

On The Incompatibility Of Political Virtue And Judicial Review: A Neo-Aristotelean Perspective, Ralph F. Gaebler

Articles by Maurer Faculty

Part I of this essay outlines a neo-Aristotelean theory of political virtue, an instance of virtue generally, that serves as the basis of excellent citizenship in the polis. As such, political virtue contributes its share to the achievement of eudaimonia, or the fulfillment of an individual’s natural, human function. In fact, political virtue is especially important because people are political beings, i.e. they seek the good most comprehensively in the context of association with others. Therefore, Aristotle describes politics as the master science of the supreme good, because politics orders the community of the polis and thereby establishes the norms …

Strategies For Defusing The Demandingness Objection, Justin J. Moss

Department of Philosophy: Dissertations, Theses, and Student Research

Bernard Williams’s formulation of the Demandingness Objection holds that living a moral life, as the consequentialist understands it, is incompatible with living a life that is good for human beings. This is because the demands of consequentialist morality threaten to overwhelm the life of the person who cares about being moral, thus leaving no time for their own projects and interests. Several prominent consequentialists have responded to the Demandingness Objection by seeking a more moderate and indirect form of consequentialism that does not require as strong a duty of beneficence as classical utilitarianism. I review and criticize three prominent moderate …

E Pluribus Plurum, Or, How To Fail To Back Into A State In Spite Of Really Trying, Chandran Kukathas

Research Collection School of Social Sciences

“The framework for utopia,” Robert Nozick tells us at the beginning of the fi nal section of Part iiiof Anarchy, State, and Utopia( ASU), “is equivalent to the minimal state” (p. 333). The rich andcomplex body of argumentation of Parts iand iihad produced theconclusion that the minimal, and no more than a minimal, statewas legitimate or morally justifi ed. What Part iiireveals is that theminimal state “is the one that best realizes the utopian aspirationsof untold dreamers and visionaries” (p. 333). Although this happyconvergence is surely no accident, neither, Nozick insists, is it contrived, for it is the conclusion reached …

Love, Sex Shouldn't Be Free, Andrew Blitman

Andrew Blitman

No abstract provided.