bluuebunny/crossref_metadata_2025_split huggingface dataset:
9 Justifications and Excuses in International Criminal Law: An Assessment of the Case-law of the ICTY
Authors: Wilt Harmen van der 
Published: October 2011

Abstract
This chapter explores the question of how defences, purporting to deny criminal responsibility, work out in international criminal law. Taking the case law of the ICTY as frame of reference, it demonstrates that international criminal tribunals have shown at least some sensitivity to the fact that soldiers are exposed to extremely tense situations. A parameter that also tends to influence the assessment of defences is the fact that in armed conflicts individuals cannot completely be separated from the collective they are part of. In view of the high stakes involved, the chapter concludes that justifications will hardly ever be accepted. Given the incommensurateness between frail human beings and extreme conditions of war fare, excuses are more likely to persuade the courts.
11 Proportional Sentences at the ICTY
Authors: Ohlin Jens David 
Published: October 2011

Abstract
Sentences handed down at the ICTY have generally been lower than sentences handed down by the ICTR or by many domestic penal systems punishing individuals for domestic crimes. This chapter diagnoses this situation and concludes that the situation stems from a conflict between two different ideas of proportionality: defendant-relative proportionality and offence gravity proportionality. Although bearing some similarity to the categories first used by A. V. Hirsch, the categories are used to different effect in this chapter. Defendant-relative proportionality insists that defendants with a greater degree of culpability should receive a longer prison sentence compared with defendants with lower culpability, while offence gravity proportionality insists that each defendant should receive punishment that adequate accords with the gravity of the offence. These two senses of proportionality come into conflict at the ICTY when the only way to preserve defendant-relative proportionality is to scale down the punishment of those who are less culpable — a result which conflicts with offence gravity proportionality. The ICTY sentencing jurisprudence has fallen victim to this dilemma. Offence gravity proportionality is normatively prior and that a tribunal — like the ICTY — faced with sacrificing one over the other ought to prioritize offence gravity proportionality. The warrant for this conclusion is that the harsh treatment associated with offence gravity proportionality vindicates the Rule of Law by providing a hypothetical war criminal with a maxim for action (in the Kantian sense) that makes compliance with the law rational.
Subjective Probability and Statistical Physics
Authors: Uffink Jos 
Published: October 2011

AbstractThis chapter examines subjectivist interpretations of probabilities in statistical physics. It provides an introduction to subjectivism about probabilities and its main tenets by tracing its history, ranging from Bernoulli up to Ramsey and de Finetti. The chapter also analyzes foundational work in statistical physics by Maxwell and Boltzmann and finds that, at a surface level, subjective probabilities were often rejected. However, some assumptions in statistical physics are better understood if the probabilities are taken as subjective. From a systematic point of view, the chapter argues that subjectivism provides a viable interpretation of probabilities in statistical mechanics. However, claims to the effect that subjectivism can overcome problems with more objectivist interpretations are rejected. In particular, Jaynes' argument for the Second Law of Thermodynamics is found wanting.
Aspects of Probability in Quantum Theory
Authors: Dickson Michael 
Published: October 2011

AbstractThis chapter elucidates quantum probabilities in the formal apparatus of quantum mechanics, while not taking sides about interpretive issues. A central contention is that the notion of a probability measure should not be captured in the usual classical framework, but instead in the more general framework of effect algebras. Two formulations of quantum mechanics in this framework are provided: one using projection-valued measures, another using positive-operator-valued measures. The chapter presents several versions of the Born Rule and critically examines justifications that have been proposed for the Born Rule. The chapter concludes with laying down the perennial puzzles about probability in quantum mechanics such as quantum correlations.
Three Roads to Objective Probability
Authors: Maudlin Tim 
Published: October 2011

AbstractThis chapter considers three ways in which probabilities may be derived from a physical theory without adverting to subjective considerations. The first derives from a fundamentally stochastic dynamics that implies transition chances at the level of natural law. The second is a Humean approach, in which probabilities are deployed as part of a compact system for conveying information about the structure of the Humean mosaic, i.e. the distribution of local physical quantities in space-time. The last employs either deterministic or stochastic dynamics together with a measure of typicality, i.e. a measure of sets of initial conditions that count as extremely large. Probabilities emerge in this setting as typical frequencies, that is, frequencies exhibited by most initial conditions.
Probability out of Determinism
Authors: Strevens Michael 
Published: October 2011

AbstractThis chapter offers an account of objective physical probability in deterministic systems. The account is based on an approach to the explanation of probabilistic patterns in deterministic systems called the method of arbitrary functions. This method is appealing, as it promises to provide an account of physical probability on which probability assignments have the ability to support counterfactuals about frequencies. It is argued that the eponymous arbitrary functions are of little philosophical use, but that they can be substituted for facts about frequencies without losing the ability to provide counterfactual support. The result is an account of probability that has a ‘propensity-like’ look and feel. Yet it requires no supplement to the standard modern empiricist toolkit of particular matters of fact and principles of physical dynamics.
Reason in Action
Authors: Finnis John 
Published: October 2011

AbstractThis book collects nineteen published and unpublished works presented here as chapters on practical reason. The first nine date from 1970 through to 2008. They include extended critiques of Hume's thesis that reason, being the slave of the passions, concerns means, not ultimate or intrinsically desirable and intelligible ends; of Christine Korsgaard's Kantian development of her successful critique of Hume; of Jürgen Habermas's theory of discourse ethics; of Bernard Williams's semi-Nietzschean theory of truth and its value; of Matthew Kramer's attempted refutation of the chapter showing the self-refutation of scepticism about the value of truth; and of the theories of value or ethics proposed by Philippa Foot, Jacques Maritain, Bernard Lonergan, and others. Part Two groups together critiques of standard accounts of Aristotle's theory of action's ultimate point; of Terence Irwin's puzzlement about whether prudentia (practical reasonableness) extends to the identification and acknowledgement of ends; of Leo Strauss's denial of exceptionless moral norms; and of the accounts of legal reasoning offered by Economic Analysis of Law, by Critical Legal Studies, and by Ronald Dworkin. Part Three begins with a wide-ranging study of commensurability and incommensurability in practical reasoning. Then, after a critique of John Rawls's theory of public reason, the book ends with three early chapters on freedom of speech, with particular but by no means exclusive focus on issues related to pornography and literary-aesthetic distance.
The Priority of Persons
Authors: Finnis John 
Published: October 2011

Abstract
This chapter gives general accounts of law's need to reintroduce the rather forgotten topic of what it is to be a person, why it matters that we thus are all each other's equal in that fundamental respect, and how being a person is related to meaning and intending. Roman law's concern with persons and equality is recalled, and Dworkin's replacement of ‘person’ with ‘citizen’ in many contexts is noted. Rules, especially of law, are to be understood as relationships between persons in the past (as rule-makers), the present (as rule-subjects and interpreters), and the future as participants in the common good for the sake of which law is made and maintained. Kelsen's turning aside from the reality of persons is shown to have bad effects in adjudication, analogous to the failure of interpretative method in Dred Scott v Sandford (1857). Hart's analysis of corporations, recent judicial explanations of the meaning of parties to transactions and makers of documents, the reality of soul or spirit, and the metaphysics of discourse are all considered.
Anscombe on Spirit and Intention
Authors: Finnis John 
Published: October 2011

Abstract
This chapter presents a 2009 essay which reviews posthumously published papers of Elizabeth Anscombe. It draws attention to her energetic affirmation and explanatory illustration of the reality of human soul and the spiritual (as well as bodily) nature of human life. It extends and is extended by the remarks on her treatment (and Wittgenstein's) of this volume's Introduction. It also critiques Simon Blackburn's understanding of Anscombe's ‘Modern Moral Philosophy’, and her own treatment of intention in her works on morality (as distinct from her great book Intention).
Persons and Their Associations
Authors: Finnis John 
Published: October 2011

Abstract
This chapter contains the text of a 1989 response to Roger Scruton's philosophical paper ‘Corporate Persons’ (summarized in the endnote) emphasizes that the paradigm of personhood is the persisting and organic unity, identity and wholeness of human individuals. This is epistemologically prior to corporate personality or group identity, which is well accounted for by Aquinas in terms of group action, which in turn is to be understood by reference to proposals for action that are held out to members of the group as a plan for coordinating their acts as participation in the group's act(s). The impossibility of setting up a nuclear deterrent as a group bluff (even if the President who would activate it is bluffing) is again underlined.
Intention in Tort Law
Authors: Finnis John 
Published: October 2011

Abstract
What is intention? Why is it morally significant? Why and how is intent to harm a per se wrong-making factor in any conduct? The answers depend on distinguishing intent from desire, behaviour from action, and intended upshot from (even welcome) side effect. Intention is the adopting of a proposal shaped in deliberation and preferred to any available alternative proposal (option), and includes (only) everything included, whether as end or as means, in the proposal. All this is traced through examination of leading doctrines and cases in the Anglo-American law of torts. Special attention is given to the mantrap cases, and to Richard Posner's, in his Economic Analysis of Law, mishandling of them. Also to the famous English cases of Bradford v Pickles (1895) and Allen v Flood (1898), and to the different course taken in American law (e.g., Tuttle v Buck (1909)). An endnote updates the examination of the doctrine that intent to harm (malice) does not render otherwise lawful conduct tortuous, by reference to OBG v Allan (2007).
Human Rights and Common Good
Authors: Finnis John 
Published: October 2011

AbstractThis volume collects twenty-two published and unpublished chapters on a variety of topics related directly to human rights, justice, and the common good. The first nine date from 1970 through to 2007. They begin with a study — in dialectic with Dworkin's earlier lecture on the same themes — of the bearing of contemporary legal and political theory on the incorporation of a declaration of rights and freedoms in British law. There follow chapters on place of rights, and of duties to oneself, in Kant's moral and legal theory and some contemporary interpreters of Kant; on the application classical conceptions of distributive justice to modern problems; on the emergence of the ideal of government limited by, inter alia, respect for human rights, and contemporary distortions of the ideal that are proposed by Rawls, Dworkin, and followers of theirs (not least in relation to marriage); on the place of civic virtues and respect for diverse persons in constitutional order; and two chapters on the great question of migration rights and the legitimacy of national boundaries preventing free and equal migration. Part Two groups three chapters on the justice of punishment, concluding with the mature statement of retribution's place as punishment's formative justifying aim, in engagement especially with Nietzsche's ‘genealogy of morals’. Part Three surveys just way theory in its historic development and current shape. Parts Four, Five, and Six each group three chapters: on autonomy, justice, and euthanasia; on autonomy, justice, and human reproduction; and on marriage in its relation to justice and the common good.
Migration Rights
Authors: Finnis John 
Published: October 2011

Abstract
This chapter offers a response to papers by Ann Dummett and Paul Weithman, considering migration rights ‘from a natural law perspective’. The chapter offers answers to the questions: Is eviction of squatters from one's house, in the interests of one's children, ‘promoting one's children's interests at the expense of the squatters' interests? Is it wrong to attribute rights to citizens which aliens do not have, or to admit foreigners for work provided they leave after two years and be visited by no family members? Does everyone have the human, natural law right to enter any territory he chooses with a view to living and working peacefully under the laws applicable to citizens? Do our obligations to alleviate the severest disadvantage mean that Rawls's ‘Difference Principle’ is sound? Or does it apply as if the world were one political community? The analogies between property and territory are important, and emigration and immigration are profoundly asymmetrical.
Euthanasia and the Law
Authors: Finnis John 
Published: October 2011

AbstractComposed for live debate with Dworkin, the chapter considers not the morality of euthanasia but the sound moral and political arguments that have persuaded almost all commissions of enquiry (e.g. the Walton Committee, New York State Task Force) that it should not be legalized. These arguments draw on facts, e.g., official but poorly understood statistics relating to the consequences of legalizing it in Holland. The very different definitions of euthanasia used by Dworkin, the Dutch, the Ninth Circuit in Compassion in Dying v Washington, and common speech are identified. Other topics discussed in this chapter include intention, autonomy, professional ethics and character, Dworkin's Life's Dominion, will to power, Nietzschean aesthetic conceptions of life, and the substantial irrelevance of pain in modern conditions.
Law as Coordination
Authors: Finnis John 
Published: October 2011

AbstractThis chapter responds to Joseph Raz's response to the discussion of law's moral authority, particularly to his claim that it begged the question (argued in a vicious circle). But it does so by surveying the structure of coordination problems in the broad sense employed also by Raz and others, in which the game-theoretical, narrow concept of Coordination Problems is only one variant among many others (such as, at the opposite extreme, Prisoners' Dilemma Problems). The differentiation draws, as in Natural Law and Natural Rights, on Edna Ullmann-Margalit. It allows the retention of the game-theoretical concept of salience, and shows that the ‘procedural’ features of the Rule of Law are integral to law's salience as a scheme for cooperation for common good.
Weber, Objectivity, and Legal-Rational Authority
Authors: Finnis John 
Published: October 2011

AbstractThis chapter makes a fundamental examination of Weber's method and results in their bearing on the understanding of law and legal authority. It takes off from a critique of Anthony Kronman's 1983 book on Weber as a sociologist of law (and economy, authority, and religion), but shows with textual detail why Weber concluded that the ideal-type or central form of social authority is legal-rational authority, and the central form of that, in turn, is the value-rationality encapsulated in natural law theory. Weber's arguments for denying the rationality or objectivity of value judgments are critiqued, as well as Kronman's attempted supplementation of them.
Religion and Public Life in Pluralist Society
Authors: Finnis John 
Published: October 2011

AbstractThis chapter presents a 2004 Princeton address which concerns the rational status of public revelation in public reason. The issue is introduced with some reflections on Newman's thesis that it can be right to be economical with one's public statements of one's reasons for belief or action, and on the method by which Aquinas's teachings are presented in the author's book Aquinas (1998). Rawls's idea of public reason is shown to be radically ambiguous and, when disambiguated, empty. The chapter's thesis is that there is a reciprocity and a certain kind of epistemic interdependence (heading towards reflective equilibrium) of natural reason and divine public revelation. Christian teaching on religious liberty is used as an example of this development of a reflective equilibrium in principle (juxtaposed with development of potentially severe disequilibrium in modern European cultures penetrated by a certain kind of immigration).
Religion and State
Authors: Finnis John 
Published: October 2011

AbstractThis chapter reflects philosophically and historically, not theologically, on the problem of religion and state, including a substantial discussion of the natural law elements in the decree Dignitatis Humanae of the Second Vatican Council on the human right to freedom from coercion in religious matters. The chapter begins with a brief statement of two arguments for the existence of God, and a sketch of the reasons not to accept Hume's arguments against miracles (and revelation), or Leiter's assertion that religion is contrasted with reason, or Dworkin's claim that the constitutional right to religious freedom is based on the good of self-determination or self-respect, or the assumption that Gospel prophecies of the fall of Jerusalem should be presumed to have been made up after the event. The chapter's political-philosophical half focuses on what laws and policies would be appropriate in a state controlled by adherents of sound philosophy and religion; the implications for more deeply divided societies emerge along the way. The discussion engages with Pope Benedict's Regensburg address, European courts' rulings on Muslim dress, and Joseph Boyle discussion of Dignitatis Humanae.
Morality and the Second Vatican Council
Authors: Finnis John 
Published: October 2011

AbstractThis chapter provides a detailed 1980 study of the Council's teachings on conscience, natural law, human dignity, divine revelation and commandments (Decalogue), authority and theological interpretation in moral teaching, consequentialist objections to definitive Catholic moral teachings, and the ‘historicity’ of natural moral law. Theologians critiqued include especially Gerard J. Hughes, Karl Rahner, and Timothy O'Connell.
Introduction
Authors: Clapp Elizabeth J. 
Published: October 2011

AbstractThe Introduction gives an historical overview of the movements to abolish the slave trade and slavery in Britain and the United States and explores the central themes of the book. It considers the nature of English Protestant dissent and the Puritan tradition in America providing a framework for understanding the religious issues covered in the volume and giving a brief indication of the theological orientation of the main dissenting traditions—Baptists, Congregationalists, Presbyterians, and Unitarians. The religious ideas, values, and practices of women from these backgrounds played a crucial part in prompting their abolitionism, helping them to overcome obstacles to their involvement and criticism of their ‘unfeminine’ behaviour. To facilitate an appreciation of women's part in anti-slavery activism, it examines the interactions between women, religion and reform and the complex issues these raise.
5 Immediatism, Dissent, and Gender: Women and the Sentimentalization of Transatlantic Anti-Slavery Appeals
Authors: Lasser Carol 
Published: October 2011

AbstractThis chapter distinguishes between anti-slavery arguments developed by dissenting women in Britain and America between the 1790s and the 1850s. While women on both sides of the Atlantic asserted the propriety of their intervention in anti-slavery discourse, British women working in the tradition of rational dissent began, in the 1790s, by arguing that abstention from the consumption of slave-made goods would have an economic impact that would undermine the profitability of slavery and thus bring about its demise. American women instead emphasized their concerns with moral purification to which their abstention would testify, thereby setting a religious example for the necessary conversion that would speed the ending of slavery. Ultimately, the sentimentalization of women's anti-slavery discourse dominated, leaving behind the economic arguments of the early rational dissenters.
Reservations to Treaties: An Objection to a Reservation is Definitely not an Acceptance
Authors: Pellet Alain , Daniel Müller 
Published: October 2011

Abstract
The differences between the effects and implications of an acceptance of a reservation and of an objection to a reservation are quite easy to overlook, especially if one considers Articles 21(1) and 21(3) of the Vienna Convention in isolation. Nevertheless, in spite of some troubling similarities in specific circumstances, it cannot be denied that these differences do exist: an objection is not an acceptance and the effects of an acceptance or an objection must be distinguished in respect to the entry into force of the treaty, on the one hand, as well as to the relations between the parties if and when the treaty enters into force between them, regardless of whether the reservation is permissible, on the other hand.
Provisional Application of Treaties in International Law: The Energy Charter Treaty Awards
Authors: Arsanjani Mahnoush H. , Reisman W. Michael 
Published: October 2011

Abstract
The tension between the often urgent need for effective legal arrangements in modern international law and the much slower internal procedures for finalization of commitment to treaties has lead to the practice of provisional application of treaties. Many treaties provide for their provisional application pending final ratification by the states parties and the Vienna Convention on the Law of Treaties has codified authoritative practice. But two recent arbitral awards, in applying Article 45 of the Energy Charter Treaty, have created some confusion.
Consistency among Treaty Obligations
Authors: Conforti Benedetto 
Published: October 2011

Abstract
International law regime of conflicts between treaties is obtained by combining the principles of the succession of treaties over time (the later treaty abrogates the earlier one) and the principle concerning the effects of treaties on third-party States (Pacta tertiis neque nocent neque prosunt). In fact, conflicts between treaties are not frequent as states prefer to negotiate in order to avoid them. Most of the time, negotiations lead to the inclusion in a treaty of declarations of ‘compatibility’ or ‘subordination’ with another or a series of other treaties. Some of them are analysed in this chapter.