Justification,excuse, and proof beyond reasonable doubt

The law requires criminal guilt to be proved beyond a reasonable doubt. There are two different approaches to construing this legal rule. On an epistemic approach, the rule is construed in terms of justified belief or knowledge; on a probabilistic approach, the rule is construed in terms of satisfying a probabilistic threshold. An epistemic construction of the rule has this advantage over a probabilistic construction: the former can while the latter cannot excuse the state from blame for a false conviction. This claim rests on an understanding of legal rules, legal justification for a finding of guilt and the central purpose of a criminal trial.     

Certainty,reasonableness and argumentation in law

This paper defends a position that parts ways with the positivist view of legal certainty and reasonableness. I start out with a reconstruction of this view and move on to argue that an adequate analysis of certainty and reasonableness calls for an alternative approach, one based on the acknowledgement that argumentation is key to determining the contents, structure, and boundaries of a legal system. Here I claim that by endorsing a dialectical notion of rationality this alternative account espouses an ambitious approach to reasoning in law and conceives of the theory of legal argumentation as the vantage point from which to analyze legal systems and tackle the main problems connected with their existence. Next, I look at what this alternative approach does for the way we should go about treating certainty and reasonableness, considered singularly as well as in their reciprocal relationship. I conclude on this basis that when argumentation receives its due emphasis in law we have to redefine certainty and reasonableness and recast their connection as non-conflictive.     

SETTING CUTOFF SCORES: LEGAL, PSYCHOMETRIC, AND PROFESSIONAL ISSUES AND GUIDELINES

Cutoff scores are used in a variety of settings to help managers make personnel decisions. Although cutoff scores are used widely, information about their derivation and appropriate use is scattered in the legal, psychometric, and professional literatures. The purpose of this paper is to analyze critically and to integrate these diverse literatures, to summarize what is known and what is unknown about the use and misuse of cutoff scores. Alternative methods are examined in relation to legal precedents set by the courts, to psychometric principles, and to the various sets of professional guidelines. Directions for future research are suggested, and we conclude with a set of recommendations regarding acceptable professional practice in this area.     

Linguistic Integration—Valuable but Voluntary

Over the last decade, states have increasingly emphasised the importance of integration, and translated it into legal regulations that demand integration from immigrants. This paper criticises a specific aspect to this development, namely the tendency to make permanent residency dependent on language skills and, as such, seeks to raise doubts as to the moral acceptability of the requirement of linguistic integration. The paper starts by arguing that immigrants after a relatively short period of time acquire a moral claim to permanent residency in their host country. Accordingly, states may not limit residency at their discretion. Nevertheless, three arguments may seem promising for defending the requirement of linguistic integration: (a) that the immigrants’ moral claim conflicts with a stronger moral claim on the part of the larger society, and this makes an infringement of the immigrants’ claim proportionate; (b) that language requirements may be legally demanded as a precondition for permanent residency for the immigrants’ own sake; and (c) that language requirements are defensible, as far as immigrants may be understood to have consented to such regulation upon entry to the country. This paper argues that all three must be rejected.

     

Legal responsibilities for educational psychologists

This paper considers the legal responsibilities of educational psychologists which fall mainly in relation to pupils with special educational needs. The first section introduces the work of educational psychologists, with some discussion of the professional and ethical difficulties posed by many aspects of their practice. An outline of the legal framework for their work in the England and Wales is provided, as an example of the application of those professional and ethical issues in practice, followed by and outline of potential areas of legal challenge and their implications. Reference is finally made to problems being experienced in policy, principle and practice arising from the tensions and dilemmas inherent in the legislation.     

Responsibilities of Criminal Justice Officials

In recent years, political philosophers have hotly debated whether ordinary citizens have a general pro tanto moral obligation to follow the law. Contemporary philosophers have had less to say about the same question when applied to public officials. In this paper, I consider the latter question in the morally complex context of criminal justice. I argue that criminal justice officials have no general pro tanto moral obligation to adhere to the legal dictates and lawful rules of their offices. My claim diverges not only from the commonsense view about such officials, but also from the positions standardly taken in legal theory and political science debates, which presume there is some general obligation that must arise from legal norms and be reconciled with political realities. I defend my claim by highlighting the conceptual gap between the rigid, generalised, codified rules that define a criminal justice office and the special moral responsibilities of the various moral roles that may underpin that office (such as guard, guardian, healer, educator, mediator, counsellor, advocate, and carer). After addressing four objections to my view, I consider specific contexts in which criminal justice officials are obligated not to adhere to the demands of their offices. Amongst other things, the arguments advanced in this paper raise questions about both the distribution of formal discretion in the criminal justice system and the normative validity of some of the offices that presently exist in criminal justice systems.     

Intrinsic Natures: A Critique of Langton on Kant

This paper argues that there is an important respect in which Rae Langton's recent interpretation of Kant is correct: Kant's claim that we cannot know things in themselves should be understood as the claim that we cannot know the intrinsic nature of things. However, I dispute Langton's account of intrinsic properties, and therefore her version of what this claim amounts to. Langton's distinction between intrinsic, causally inert properties and causal powers is problematic, both as an interpretation of Kant, and as an independent metaphysical position. I propose a different reading of the claim that we cannot know things intrinsically. I distinguish between two ways of knowing things: in terms of their effects on other things, and as they are apart from these. 1 argue that knowing things' powers is knowing things in terms of effects on other things, and therefore is not knowing them as they are in themselves, and that there are textual grounds for attributing this position to Kant.     

Therapist responses to requests for disclosure of therapeutic records: An introductory study

This paper describes a questionnaire survey of therapists in the UK who have been subject to requests for disclosure of client records as part of a legal process. Therapist responses are outlined in terms of the perceived effect of such disclosure on the client, therapist and the therapeutic relationship. Negative effects included the experience of exposure of sensitive client material in an adversarial legal system, of powerful emotional responses by therapists, and a sense of feeling professionally de‐skilled in an unfamiliar and often challenging legal environment. Positive effects for the client included the achievement of valued outcomes such as compensation, and, for the therapist, the facilitation of support for the client in this process. These findings are discussed in terms of a contrast between therapist perceptions of consensual and contested disclosure. In the former, therapist and client are in agreement about the restorative value and outcome of disclosure. In contested disclosure, the process is experienced as disrupting therapeutic privacy, undermining professional self‐confidence and introducing an unwelcome element of critical re‐evaluation of client motives for undertaking therapy.     

Assessment sensitivity in legal discourse

We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse.     

HIV and the obligation to treat

The paper is an attempt to review the basis for the claim that physicians have a professional obligation to treat AIDS patients. Considered are the historical record, two professional codes of ethics, and several recent articles. The paper concludes that the arguments considered, which attempt to support the claim that physicians have an obligation to treat, fail. It is suggested, rather, that common humanity, which physicians share with those who suffer from AIDS, ought to be the basis for engaging in the care of AIDS patients.     

Rights and claims

Conclusion By way of conclusion, I have tried to show that rights do not come from nowhere, that is, rights are not sui generis. They come from claims. Rights do not make claims possible; rather claims make rights possible. For out of claims come claims to rights and from the welter of such claims to rights a legal system is established which, after sifting and refining, accepts some claims to rights and dignifies these as deeds, titles, rights and rejects others; and provides rules enabling persons to exercise their rights. A system of rights and rules thus generated gives one the right to make strong claims. Although having a right is not a condition for making a claim, having a right is necessary to sustain and appraise a claim. Appealing to rights enables us to distinguish weak from strong claims. For rights may sustain or rebut claims though they are not themselves claims.How can we appraise claims? A claim to implies a claim that, the latter being an outcome of the former. If the resulting claim is open to appraisal of the sustain/reject or true/false kind, then it is a claim in a sense other than a primitive cry in the wild. If one can go on to say of a claim that is open to appraisal that one has a right to make such a claim or that one has a strong claim, this is to give favorable, initial appraisal to a claim thus made; and is a claim not in a primitive but in a secondary and ultimately more significant sense.A slightly revised version of a paper read at the Long Island Philosophical Society, May 15, 1971. I wish to thank Lowell Kleinman, Alex Orenstein, Peter Manicas and Karsten Struhl for their helpful criticisms.     

Liberalism, legal moralism and moral disagreement

According to "legal moralism" it is part of law's proper role to "enforce morality as such". I explore the idea that legal moralism runs afoul of morality itself: there are good moral reasons not to require by law all that there is nevertheless good moral reason to do. I suggest that many such reasons have broad common-sense appeal and could be appreciated even in a society in which everyone completely agreed about what morality requires. But I also critique legal moralism from the special perspective of liberal political justice. Liberalism requires that citizens who disagree with one another on a number of morally significant matters nevertheless coexist and cooperate within a political framework of basic rights protections. When it comes to working out the most basic terms of their political association, citizens are expected to address one another within the limits of what Rawls has called "public reason". Critics of liberalism claim that this is an essentially a-moral (or expedient) attempt to evade substantive moral issues--such as the moral status of the fetus. I argue, on the contrary, that liberalism's emphasis on public reason is itself grounded in very deep--though (suitably) "non-comprehensive"--moral considerations.     

A Coherentist Theory of Normative Authority

What makes an ``ought'' claim authoritative? What makes aparticular norm genuinely reason-giving for an agent? This paper arguesthat normative authority can best be accounted for in terms of thejustification of norms. The main obstacle to such a theory, however, isa regress problem. The worry is that every attempt to offer ajustification for an ``ought'' claim must appeal to another ``ought''claim, ad infinitum. The paper argues that vicious regress canbe avoided in practical reasoning in the same way coherentists avoid theproblem in epistemology. Norms are justified by their coherence withother norms.     

Les préjudices professionnels des jeunes victimes de dommages corporels. Partie 3 : Les difficultés liées à l’évaluation de l’incidence professionnelle

Though professional damages in respect of young personal injury victims are recognized in principle by the Dintilhac group, and confirmed by the Court of Cassation in terms of full compensation for damages suffered, the assessment of such professional damages remains difficult, and the source of myriad legal disputes. The recognition and assessment of professional incidence raises the question of the risk of double compensation: The cumulative award of lifetime compensation for lost future earnings and of compensation for professional incidence not recognized at first by the 2nd chamber of the Court of Cassation is a source of debate in terms of both doctrine and jurisprudence. Though a source of discussion, the cumulative award of compensation for professional incidence and for educational, academic or training damages (PSUF) is more consensual.     

Responsabilités de l’expert judiciaire médical : des exigences déontologiques renforcées pour une activité accessoire

Medical doctor, forensic expert. Behind the duality of this role lie several professional obligations and responsibilities that must always be borne in mind by those who make a contribution to justice in providing their skills and professional knowledge. In reality, taking a moment to reflect on the ethical duties of the Forensic Medical Expert involves realizing that today, regulations and jurisprudence are seldom a requirement in a profession that performs an activity which may be ancillary but which is nonetheless essential in revealing the truth and therefore working towards Justice. Said person passes protean responsibilities on to health professionals for those who, paradoxically and statutorily, only occasionally work with the justice system. As such, from a civil, criminal and disciplinary perspective, a person skilled in the art is responsible for faults committed under the control of both the justice system and their peers in terms of their medical and expert activities. Given that the ancillary activity adds a great deal to the main role, this study raises the question of the ambiguity of a status that would benefit from official recognition as a regulated legal profession.     

Aboriginal Right: A Conciliatory Concept

The confusion that persists over Aboriginal claim in North America calls for close examination. The paper begins by sorting out various versions of 'Aboriginal right'and some of the main factors that govern its use. Confusion is analysed as the result of conflating different frames of reference which determine different sets of expectations by Aboriginal and government representatives.
To appreciate the significance of this conflation, it is helpful if not necessary to view the move to use the concept 'Aboriginal right'as a strategic rather than a legally substantive one. Understanding the move in this way helps to explain why it is that definitions remain elusive. The effect of using the concept has indeed been to enable Aboriginals finally and effectively to table their claim. However, the strategy has its cost. Using the language of the courts places Aboriginal negotiators at a disadvantage, since that language is ineluctably tied to European social and legal sensibilities that militate against understanding Aboriginal claim.
If, in the end, we understand that the move to use the language of the courts has been conciliatory, we can better recognise the nature of Aboriginal claim. We can begin to understand that it involves a complex web of responsibilities and commitments, most of which have either been forgotten or perverted to suit government agendas. We can begin to see that it has to do with restoring a relationship of mutual respect and protection.     

The Illegal Way In and The Moral Way Out

At the heart of the current debate about immigration we find a conflict of convictions. Many people seem to believe that a country has a right to decide who to let in and who to keep out, but quite often they appear equally committed to the view that it is morally wrong to expel someone from within the borders of their country if that would seriously jeopardise the person in question. While the first conviction leads to stricter border controls in an attempt to prevent would-be immigrants from entering the country illegally, the latter conviction ensures that aliens with a legitimate claim on protection will not be removed forcibly. It is not strange, therefore, that the task of pinning down a morally sound immigration policy is such an elusive enterprise.
In this paper I take it for granted that no electorate would be prepared to accept the kind of policy they ought to, and that we in consequence will continue to let in as few immigrants as is currently the case. Given this constraint I argue against two common assumptions concerning a viable immigration policy. First, granted that certain conditions are satisfied, professional smugglers should not face legal sanctions for bringing asylum seekers to a potential host country. Second, countries that limit immigration should not treat people seeking family reunion preferentially or on a par with other immigrants, but rather act so as to maximise the number of refugees allowed to enter.     

Bias and error rates for premorbid IQ estimators: comment on Veiel and Koopman (2001)

H. O. F. Veiel and R. F. Koopman (2001) advance statistical and legal theses. They correctly point out that the usual regression formula for estimating a pre-event IQ underestimates high IQs and overestimates low IQs (due to regression to the mean). They call this a conditional bias and show it can be sizeable. The author takes issue with their claim that a new estimator they propose should be used in place of the usual formulas, because it negates this statistical bias. Their argument against the usual estimator conflates statistical bias and legal bias. Their discussion in favor of their new estimator mentions, but does not derive a general formula for, a gross loss of precision entailed by use of the new estimator. The author quantifies this loss of precision and, using Veiel and Koopman's numerical example, shows that their estimator quadruples error.     

So We Need Something Else for Reason to Mean

In this paper I give considerable attention to Richard Rorty's attempt to make plausible a conception of non-rational semantic and cultural change - change which Rorty insists on describing as identical with progress - in order to show the extent to which this attempt is compromised from the start by an unjustifiably narrow and inconsistent view of reason. The point of this immanent critique is not just to make Rorty's view of non-rational change look bad. It is meant to do more justice to his claim that intellectual and moral progress is inseparable from speaking and acting differently by incorporating this claim into a philosophically enlarged picture of reason. So the value of taking Rorty's claims about change seriously lies less in showing the shortcomings of his conception of reason than it does in bringing a sense of urgency to the need to renew the project begun by Kant, Hegel, and German Idealism - the project of conceiving reason as an agency of change by reinterpreting reason in terms of self-determining freedom.     

Genetic Information,Non-Discrimination,and Privacy Protections in Genetic Counseling Practice

The passage of the Genetic Information Non Discrimination Act (GINA) was hailed as a pivotal achievement that was expected to calm the fears of both patients and research participants about the potential misuse of genetic information. However, 6 years later, patient and provider awareness of legal protections at both the federal and state level remains discouragingly low, thereby, limiting their potential effectiveness. The increasing demand for genetic testing will expand the number of individuals and families who could benefit from obtaining accurate information about the privacy and anti-discriminatory protections that GINA and other laws extend. In this paper we describe legal protections that are applicable to individuals seeking genetic counseling, review the literature on patient and provider fears of genetic discrimination and examine their awareness and understandings of existing laws, and summarize how genetic counselors currently discuss genetic discrimination. We then present three genetic counseling cases to illustrate issues of genetic discrimination and provide relevant information on applicable legal protections. Genetic counselors have an unprecedented opportunity, as well as the professional responsibility, to disseminate accurate knowledge about existing legal protections to their patients. They can strengthen their effectiveness in this role by achieving a greater knowledge of current protections including being able to identify specific steps that can help protect genetic information.