Hamish Stewart

A Critique of Instrumental Reason in Economics

There are, broadly speaking, two ways to think about rationality, as defined in the following passage: ‘Reason’ for a long time meant the activity of understanding and assimilating the eternal ideas which were to function as goals for men. Today, on the contrary, it is not only the business but the essential work of reason to find means for the goals one adopts at any given time. (Horkheimer, 1974, p. vii) To use what Horkheimer called objective reason, and what others have called expressive or non–instrumental reason, is to reflect on ones goals, to attempt to determine what preferences one ought to hold. On the other hand, to use what Horkheimer called subjective reason is to ‘be concerned with means and ends, with the adequacy of procedures for purposes more or less taken for granted’ (1947, p. 3), that is, to be instrumentally rational. This contrast between non-instrumental and instrumental reason is at the heart of many contemporary social and philosophical disputes.1

Rationality and the market for human blood

Abstract This paper presents a theoretical model of blood supply illustrating an argument advanced by Titmuss, that it is better to rely on voluntary donation than on the market to obtain whole human blood for transfusion The model incorporates a social custom in the manner of Akerlof, which causes different equilibria to occur depending on whether the custom of giving blood prevails or not Since preferences differ across equilibria, the Pareto criteria cannot be used to compare them Several other possible criteria are proposed, but these criteria imply that some preferences are more rational or are preferable to other preferences.

The Role of Reasonableness in Self-Defence

In this paper, I consider John Gardners and George Fletchers arguments that reasonably mistaken defensive force is not justified but excused. I suggest that, when seen through the lens of cases involving the defence of third parties, these arguments can be shown to lead to counter-intuitive results. I suggest further that the source of these results is Gardners and Fletchers efforts to characterize reasonably mistaken self-defence by arguing from certain ideas about the conceptual nature of justification, indeed in a fairly abstract way, rather than by arguing from a normative or moral view about the purpose of self-defence. For Gardner, the argument that reasonably mistaken self-defence is merely excused flows directly from the structure of the concept of justification, while for Fletcher, the argument derives from his view that claims of justification can be generalized in a way that excuses cannot. Neither of these arguments depends on establishing the normative underpinnings of self-defence itself; both depend rather on claims about the concept or nature of justification in general. I argue instead that the role of reasonableness in self-defence depends on the normative claim that is being made on behalf of the legal defence; so that the question of whether reasonably mistaken self-defence is an excuse or a justification depends on how the normative theory of self-defence connects with the concept of a justification, and does not depend on the nature of that concept simpliciter. The results generated by Gardners and Fletchers approaches might, of course, be correct despite their counter-intuitive feel if they are supported by a persuasive moral theory. I therefore conclude with some thoughts supporting the claim that any plausible approach to criminal liability should treat reasonably mistaken self-defence as justified rather than excused.

The Limits of Consent and the Law of Assault

In this paper, I show that a Kantian account can explain both the rule that consent is normally a defence to assault and the exceptions to that rule. Kant himself does not discuss the offence of assault, but the body – the manifestation of the person in space and time – is central to Kant’s account of each person’s innate right of humanity. Since Kant’s legal philosophy is oriented around the idea that each limit on freedom of action can be justified only for the sake of freedom itself, it is plausible to think that this might do all the work; but that is not the case. The law may rightly refuse to recognize consent to a physical interaction that is inconsistent with treating the participants as persons and may, in such cases, create an exception to the usual rule that lack of consent is an element of assault. But this Kantian account needs to be supplemented in two ways. First, the account provides a structure but no criteria for determining whether an interaction is inconsistent with personhood. Second, the law does sometimes recognize consent as a defence in activities that expose the participants to the intentional application of force that creates a risk of permanent and serious damage, even though that damage itself could not be consented to. The distinction turns out to run parallel to Kant’s solution to the problem (as he sees it) of sexuality: how is it possible for two persons to engage in an activity that necessarily requires each to treat the other as an object, and yet to retain their humanity? With these supplements, the limits on consent in the positive law of assault can be justified in Kantian terms.

The constitution and the right of self-defence

This paper explores the implications of the idea of a constitution appropriate to a liberal-democratic state for the law of self-defence. The law governing self-defence, like other laws, must also a test of substantive legality appropriate to the constitution: it must be one that could not reasonably be rejected by a person who is a member of a civil condition created with the purpose of curing the insecurities of the state of nature. While this test of substantive legality is insufficiently powerful to determine all the details of the law of self-defence, it does have several important implications. First, the positive law must recognize a right of self-defence in the core case where the defender responds with necessary and proportionate force to a wrongful threat; second, the positive law must also provide at least an excuse leading to acquittal where the defender is reasonably mistaken about one of the conditions in the core case. Furthermore, the positive law must acquit a person who uses necessary and proportionate force to repel an innocent threat because the civil condition can provide no reason for punishing such a person.

The privilege against self-incrimination Reconsidering Redmayne’s rethinking

In ‘Rethinking the Privilege Against Self-Incrimination’, Mike Redmayne offered an ingenious proposal that both motivated the privilege and explained the difference between statements and other forms of assistance. He connected the privilege with the idea that individual citizens should have space to disassociate themselves from a prosecution, particularly where it would be very costly for them and not particularly helpful to the prosecution, to assist. The many situations where the law did require the citizen to assist, on the other hand, were those where it was worth imposing the costs of assistance on individuals. In what follows, I offer a critical reading of this account of self-incrimination. I will suggest that Redmayne himself recognized the danger of relying too heavily on a certain kind of cost-benefit analysis. I suggest that the account could be strengthened by attending more closely to the relationship between the privilege against self-incrimination and the rights of the participants in the legal process, notably the presumption of innocence.

Prawo zróżnicowane dla grup: wyzwanie dla prawa karnego

The liberal project of tolerating and accommodating the beliefs and practices of minority cultures and religions poses a serious challenge to the usual liberal understanding of penal law. Whatever accommodations may be available in other areas of the law, it is often thought that the penal law should be the same for everyone. This view has been challenged by advocates of “cultural defences”, who argue that truly equal treatment requires evidence concerning the cultural reasons for a person’s actions to be considered rather than ignored. Most advocates of some form of cultural defence have treated it as relevant to existing criminal law defences, or as a distinct excuse, rather than as a reason to vary the demands of the penal law or to exempt members of minority cultures from it. But the strongest and most persuasive liberal arguments for accommodating minority cultures imply that members of minority cultures may indeed be entitled to exemptions from penal law.Liberal arguments in favour of group-differentiated rights apply as much to the demands of penal law as to the demands of any other kind of law. So the argument for group- -differentiated rights appears to be inconsistent with the claim that there should be one penal law for all. There are (at least) three possible ways of resolving this inconsistency. First, one might give up the ideal of one penal law for all; second, one might seek an argument for exempting penal law from the demands of group-differentiated rights. In this paper, I explore a third possible resolution: the distinction between a core of penal law-call it “criminal law” strictly speaking – that does indeed apply to all and is not open to group-based differentiation and a periphery of penal law-call it “regulatory penal law” – that need not apply to all and can therefore be differentiated to accommodate group rights. Whether this resolution succeeds or not, the need to consider it shows that the problem of accommodating cultural diversity goes to the heart of what we mean by criminal law.

The Definition of a Right

It is tempting to begin a discussion of a concept with a definition. So, before discussing what rights people do have in positive law, or ought to have as a normative matter, it might be thought wise to offer a definition of right; for how can we talk intelligibly about what rights people have and whether they should have them without knowing what rights are? This temptation has led to a substantial literature in which a definition of a right is stipulated and then defended against a variety of criticisms and counter-examples. This literature is often organised around a contrast between ‘will theories’ and ‘interest theories’ of rights. The central feature of will theories is that the holder of a right has a choice of some kind about enforcing the duty associated with the right; the central feature of the interest theory is that a right protects or advances the interests of the holder of the right. Some authors define and defend a relatively pure form of one theory, while others offer hybrid accounts of rights that draw on both the will and the interest theory. In one branch of this literature, a theory of rights is defined and defended with reference to, or as part of, a political theory or normative account of why people have legal rights and what those legal rights should be.1 I will be more concerned with another branch of the literature, in which a theorist defines a right with respect to will or interest and uses DOI: 10.5235/Jurisprudence.3.2.319 (2012) 3(2) Jurisprudence 319–339

Alan Brudner and the Contemporary Significance of Hegel's Philosophy of Law

Drawing on the philosophy of Hegel, Alan Brudner’s book is an attempt to develop a comprehensive, unified theory of penal law for ‘liberal’ societies. At first sight the legal systems of these societies appear to lack any coherence or underlying unity. However, a closer analysis, undertaken from the standpoint of Hegel’s philosophical system, indicates that this is not the case. Underneath this surface diversity there is an underlying unity. Nevertheless, the unity that underpins the systems of penal law in such societies is of a particular kind. It is not homogeneous, but differentiated; not monolithic, but pluralistic. It is a higher level ‘unity of unities’, or (2012) 3(1) Jurisprudence 211–218

The Politics of the Charter: The Illusive Promise of Constitutional Rights (review)

Andrew Petter describes himself as a ‘progressive Charter sceptic’ (171), a scholar and policy maker who believes that ‘the Charter is a regressive political instrument more likely to hinder than to advance the interests of disadvantaged Canadians’ (7). His engaging essays on the Charter fall into two groups, the first written before 1990, the second after 2005. In between, Petter served as an MLA in the British Columbia legislature and was responsible for several cabinet portfolios in the NDP governments of Mike Harcourt and Ujjal Dosanj. The first group of essays constitutes a vigorous left-wing critique of the Supreme Court of Canada’s early decisions interpreting and applying the rights guaranteed by the Charter. The second group of essays restates Petter’s critique of rights and responds to the claim that judicial review can be justified as part of a dialogue between the various branches of government. But near the end of the book, there is a surprising hint that Petter’s experiences in government may have softened his sceptical views about the possibility and desirability of constitutional rights. Petter’s critique of Charter rights and their interpretation by the Supreme Court of Canada is expressed in at least three distinct and potentially incompatible arguments. First, in two papers co-authored with Allan Hutchinson, Petter argues that constitutional rights are impossible in principle. The Charter’s liberal legalism is ‘a failure’ (92): it promises neutral, formal, and objective criteria for determining conflicts about rights and social values, but since the abstract liberal values embodied in the Charter provide no such criteria, judicial decision making under the Charter is arbitrary, subjective, and personal (83, 121). In the second group of papers, Petter restates this basic critique: ‘none but a few true believers,’ he says, can maintain that the early Charter cases ‘did not require judges to make subjective judgments based on their personal moral values’ (152; compare 174–6). Second, Petter sometimes seems to claim that, even if right-based review is possible in principle, individuals ought not to have constitutional rights. This argument underpins his critique of one of the most significant early Charter cases. In the Motor Vehicle Reference, the Supreme Court of Canada held the principles of fundamental justice under s 7 of the Charter enabled courts to review statutes on grounds of both procedural fairness and substantive justice. The Court went on to recognize its first substantive principle of fundamental justice, holding that absolute liability in penal law offended the principles of fundamental justice. The Court thus