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Added by: Simon Fokt
Abstract: In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, "On Philosophy in American Law." The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by "philosophy" Llewellyn only meant "atmosphere". His concerns were the "general approaches" taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s "law" included anything that reflects the "ways of the law guild at large" - judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit "philosophies" to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act.Purdy, Laura. Are Pregnant Women Fetal Containers?1990, Bioethics 4(4): 273–291.-
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Added by: Carl Fox
Content: Purdy offers a strong argument against overriding the decisions of pregnant women and tries to reconcile the significance of the dependence of the fetus on the mother with the mother's right to control her own body.Comment: Very useful as introductory or further reading on reproductive rights and/or abortion.
Gilbert, Margaret. A Theory of Political Obligation: Membership, Commitment and the Bonds of Society2008, Oxford: Oxford University Press.-
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Added by: Carl FoxPublisher’s Note:
Publisher: Does one have special obligations to support the political institutions of one’s own country precisely because it is one’s own? In short, does one have political obligations? This book argues for an affirmative answer, construing one’s country as a political society of which one is a member, and a political society as a special type of social group. The obligations in question are not moral requirements derived from general moral principles. They come, rather, from one’s participation in a special kind of commitment: a joint commitment. This theory is referred to as the plural subject theory of political obligation since, by the author’s definition, those who are party to any joint commitment constitute a plural subject of some action in a broad sense of the term. Several alternative theories are compared and contrasted with plural subject theory, with a particular focus on the most famous — actual contract theory — according to which membership in a political society is a matter of participation in an agreement. The book offers plural subject accounts of both social rules and everyday agreements, and includes discussion of political authority and punishment.Comment: Some chapters in Part 1 would work very nicely as introductory reading to the problem of political obligation. As the book progresses it homes in on the theory of social groups and Gilbert's theory of political obligation as joint commitment. As such, the later chapters are more suited to specialised readings.
Young, Iris Marion. Five faces of oppression2009, In George L. Henderson & Marvin Waterstone (eds.), Philosophical Forum. Routledge. 270-
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Diversifying Syllabi: The concept of ‘oppression’ cannot be captured by traditional, distributive conceptions of justice. Oppression is also not a unified phenomenon with an underlying, fundamental essence. To make sense of oppression, we need to revise our accounts of social ontology to recognize the existence of “groups.” Social groups can experience oppression in any of the following, crucially distinct five ways: exploitation, marginalization, powerlessness, cultural imperialism, and violence. Individuals within these groups can experience all, multiple, or just one of these forms of oppression and can also find themselves, simultaneously, in dominant groups/positions in other contexts. A revised social ontology that accounts for the existence of such groups shows that redistribution of material goods will not eliminate these forms of oppression.Comment: This text is most useful in teaching on the nature of justice, as it offers a valuable alternative to the theories typically discussed in undergraduate classes. It offers a great introduction to the notion of systemic injustice and issues in gender and racial discrimination. Since the text is written in a fairly approachable way, it can offer a good introductory text in some junior courses, stimulating reflection on issues typically taken for granted.
Nussbaum, Martha. Frontiers of Justice: Disability, Nationality, Species Membership2006, Cambridge, MA: Harvard University Press.-
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Added by: Simon FoktPublisher’s Note:
Publisher: Theories of social justice are necessarily abstract, reaching beyond the particular and the immediate to the general and the timeless. Yet such theories, addressing the world and its problems, must respond to the real and changing dilemmas of the day. A brilliant work of practical philosophy, Frontiers of Justice is dedicated to this proposition. Taking up three urgent problems of social justice neglected by current theories and thus harder to tackle in practical terms and everyday life, Martha Nussbaum seeks a theory of social justice that can guide us to a richer, more responsive approach to social cooperation. The idea of the social contract--especially as developed in the work of John Rawls--is one of the most powerful approaches to social justice in the Western tradition. But as Nussbaum demonstrates, even Rawls's theory, suggesting a contract for mutual advantage among approximate equals, cannot address questions of social justice posed by unequal parties. How, for instance, can we extend the equal rights of citizenship--education, health care, political rights and liberties--to those with physical and mental disabilities? How can we extend justice and dignified life conditions to all citizens of the world? And how, finally, can we bring our treatment of nonhuman animals into our notions of social justice? Exploring the limitations of the social contract in these three areas, Nussbaum devises an alternative theory based on the idea of capabilities. She helps us to think more clearly about the purposes of political cooperation and the nature of political principles--and to look to a future of greater justice for all.Comment: This excellent book is valuable in teaching for two main reasons: (1) it extends and expands on the application of the capability approach to non-human animals, the disabled and the global poor; and (2) it offers a valuable critique of Rawls' theory of justice.
Oshana, Marina. Personal Autonomy and Society1998, Journal of Social Philosophy 29(1): 81–102.-
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Added by: Simon Fokt
Content: Oshana argues against 'internalist' theories of autonomy that focus exclusively on psychological conditions internal to the agent - what goes on inside her head - and suggests instead that certain social relations must obtain between the agent and those around her for genuine autonomy to be possible.Comment: Oshana argues that personal autonomy is a socio-relational phenomenon partially constructed by external, social relations. She also offers an interesting and detailed critique of internalist accounts, which makes the text very useful in teaching on autonomy and free will in general. The text is best used as a further reading in undergraduate and a more central required reading in postgraduate teaching. It offers a good synopsis of Gerald Dworkin's influential conception of autonomy.
Foot, Philippa. Euthanasia1977, Philosophy and Public Affairs 6 (2):85-112. Reprinted in her Virtues and vices. Oxford: Blackwell.-
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Added by: Simon FoktAbstract:
Comment: This text is of central interest in teaching about moral issues related to euthanasia. The text introduces the vital distinctions between active and passive, voluntary and nonvoluntary euthanasia, and argues in favour of moral permissibility of all but the active nonvoluntary type.
Foot, Philippa. The Problem of Abortion and the Doctrine of the Double Effect1967, Oxford Review 5:5-15, reprinted in Virtues and vices. Oxford: Blackwell.-
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Added by: Simon Fokt
Introduction: One of the reasons why most of us feel puzzled about the problem of abortion is that we want, and do not want, to allow to the unborn child the rights that belong to adults and children. When we think of a baby about to be born it seems absurd to think that the next few minutes or even hours could make so radical a difference to its status; yet as we go back in the life of the foetus we are more and more reluctant to say that this is a human being and must be treated as such. No doubt this is the deepest source of our dilemma, but it is not the only one. For we are also confused about the general question of what we may and may not do where the interests of human beings conflict. We have strong intuitions about certain cases; saying, for instance, that it is all right to raise the level of education in our country, though statistics allow us to predict that a rise in the suicide rate will follow, while it is not all right to kill the feeble-minded to aid cancer research. It is not easy, however, to see the principles involved, and one way of throwing light on the abortion issue will be by setting up parallels involving adults or children once born. So we will be able to isolate the ‘equal rights’ issue and should be able to make some advance.Comment: The text introduces some crucial distinctions, discussing the difference between 'doing' and 'allowing to happen' and the related negative and positive duties. Foot argues that what matters in the Doctrine is not the directness of the actor's intention, but whether they intend to follow a negative or positive duty. This paper is most useful in teaching on the ethics of abortion and euthanasia, as well as the doctrine of double effect in general.
Kittay, Eva. At the Margins of Moral Personhood2005, Ethics 116 (1):100-131.-
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Added by: Carl Fox, Chris Howard
Summary: Considers the particular case of CSMR individuals in detail and makes a strong case for incorporating relational elements into an account of moral personhood.Comment: Best used as a specialised or further reading addressing the topics of moral personhood and justice. This paper is sure to generate and discussion and debate, particularly when paired Jeff McMahan's work on the topic, to which the paper is responsive (see in particular McMahan, "Cognitive Disability, Misfortune, and Justice"). Some of Kittay's arguments rely on somewhat fine metaphysical distinctions, so some background in philosophy would be useful, but the distinctions aren't so fine that any additional reading would be required -- in-class discussion of the nature of the relevant distinctions should suffice.
Friedman, Marilyn. Autonomy, Social Disruption, and Women2000, in Mackenzie, C. and Stoljar, N. (Eds.) Relational Autonomy: Feminst Perspectives on Autonomy, Agency, and the Social Self. Oxford: Oxford University Press. 35-51.-
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Added by: Carl Fox
Abstract: This chapter develops a point made in preceding chapters that autonomy, although socially grounded, has an individualizing dimension — a dimension that is defend against the worries of critics. The main thesis is that: at the same time that we embrace relational accounts of autonomy, we should also be cautious about them. Autonomy increases the risk of disruption in interpersonal relationships. While this is an empirical and not a conceptual claim about autonomy, nevertheless, the risk is significant and its bearing on the value of autonomy is therefore empirically significant. It makes a difference in particular to whether the ideal of autonomy is genuinely hospitable to women.Comment: This chapter presents an account of autonomy that sits between highly relational and highly individual accounts of autonomy.
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Allen, Anita. 22 Atmospherics: Abortion Law and Philosophy
2004, In Francis J. Mootz (ed.), On Philosophy in American Law. Cambridge University Press 184
Comment: This article offers a good way to relate practical legal problems with philosophical issues, giving the students a very direct way to see the relevance of ethics. It can inspire discussions on paternalism and its relations with global justice. Note that the article does not define the following terms which are important to understand the material: Natural law, Positivism, Realism, Atmosphere/atmospherics, Paternalism, Maternalism. Due to its focus on legal issues, the text can be better suited as further reading, or as a core reading in classes focused on applied ethics and law (following Diversifying Syllabi).