of my notes (updated May,1999; more changes introduced
in June, 05; changes may be introduced as the course progresses) on the
and some related issues, placed here for my students and other
Those not familiar with my idiosyncrasies should be warned that I often
have very brief notes on material covered at length in class, and
Comments, additions, and corrections are welcome.
Please send them to
Le Moyne College Department of Philosophy
Syracuse, NY 13214
Notes for Issues in Ethics:
for M. Kagan's notes on and reconstruction of Ayn Rand's Ethical
and links to other Rand/Objectivism material ]
I. Course Objective: The goal of this course is to:
A. introduce students to philosophical debates on moral problems
of present concern;
B. present criticisms that will aid students in evaluating some
of the relevant arguments;
C. help students better develop and defend their own positions.
II. Overview: We will consider six moral problems and related
philosophical ethical issues as follows:
A. Civil Disobedience, The Nature of Right and Wrong
B. Genetic Engineering The Good
C. Cheating in Academia Moral Value
D. Abortion, The End of the Law
E. Preferential Admissions "A Right"
F. Capital Punishment Moral Knowledge
III. (#1) Introduction to the subject. The usefulness of worrying
ahead. Theory and practice. Civil Disobedience. Read Wellman,
A. Pass out and discuss syllabus.
B. Confronting problems in advance and the relevance of
philosophy. Do a sample argument, e.g., on body-farming or scape-
goating. Elucidate positions and reasons for positions.
C. The importance of clarifying the questions.
D. Dangers of the matter:
1. Challenges to secure areas;
2. Possibility of being wrong;
3. Having to give opponent's credit
4. Need to learn other subject-matters
E. Need to learn about other philosophical problems in areas
2. Metaphysics and Epistemology
a) Issues of ensoulment and personhood
b) How do we know about consequences
c) Problems of determinism and free-will
3. Philosophy of Religion
a) Problems of religious authority
b) Relevance and possibility of religious knowledge
4. philosophical anthropology (what is the human person)
a) Problems of mind and body
b) Psychological egoism
c) Ethical relativism
F. Preliminary terminology
1. Normative Ethics
a) Theory of obligation (deontology)
b) Theory of value (axiology)
a) Analysis of concepts of normative ethics
IV. Our first problem: Civil Disobedience
A. Distinguishing between problems
1. Are acts of CD right or wrong?
2. Are Acts of civil disobedience virtuous or morally
reprehensible? (might be wrong but virtuous)
3. Are Acts of civil disobedience beneficial or harmful?
4. Is the Civil disobedient morally good or evil?
5. Should society punish the civil disobedient?
B. Defining civil disobedience: Non-violent illegal act of
C. The question: Is civil disobedience ever right in a democracy?
D. Arguments against
1. Political Obligation to obey the law
a) Implicit consent and Crito argument--
2. The principle of democracy and majority rule
3. Unnecessary evil
4. Lawlessness and violence
a) Encourages lawlessness like developing a bad habit
b) Violence results
E. Arguments For
1. Preservation of moral integrity
2. The duty to combat immorality--justified by its purpose of
a) discuss importance of saying NO.
3. A means of social progress
4. No Practicable alternative--the necessary evil argument
5. Government may exceed it authority
F. Rebuttals and rejoinders
1. Political obligation again
a) Social contract
b) Relativism to society as highest authority
c) Romans 13:1 God commands us to obey even unjust laws--
the divine right of kings, etc.
d) Conscience is subjective--WHO is the Civil disobedient
to thin s/he has better knowledge than society at large?
2. Contract there to serve purpose of insuring rights etc., of
citizen's--it is a means not an end in itself.
3. CD is sometimes the only practicable means of social
4. CD is done out of respect for the law as witnessed by the
willingness to take penalties.
a) If not trying to work within law, is something else,
G. Conditional civil disobedience
1. Based on prima facie character of obligation to obey the
law--Wellman holds CD permissible when
a) CD is widely publicized and makes people aware of the
object of moral protest.
b) Accompanied by reasons to support moral reform, and
when cd can stir up an apathetic and conservative society
without generating a backlash.
H. Discussion question #17 p. 24. Talk about dilemma argument
I. My position: Civil disobedience is permissible in the cases
Wellman describes. But, an individual may be cornered into it
even if there is no apparent chance of success and s/he does so at
risk, since a person is forced at times to say NO--even if a
conflict remains, and even if success is not beckoning--sometimes
taking a risk at bad or worse odds seems to be the only right
thing to due; and we are stuck acting from our own places. Which
takes us to the issue of The Nature of Right and Wrong.
V. (#2) The Nature of Right and Wrong. Read Wellman, Chapter 2.
A. From moral obligations to ethical theories
1. Again, take a look at the underpinnings of the arguments
B. Theories of Obligation
1. The mores--discuss sophistic relativism
2. The law of God
a) Euthyphro problem
3. One characteristic of the act--e.g., promise-keeping
a) conflicts of obligations, complexity of situations
4. One or more characteristics of the act--Ross's theory of
prima facie obligations and the weighing of obligations (note
Aristotelian sources for this)
a) Explains why we can always ask for reasons to justify a
particular judgment of obligation]
b) why morally relevant considerations have to be
statements about the act itself
c) why there are usually several reasons to be considered
5. Wellman's criticism of Ross--does not go far enough--we can
ask why any kind of act is right or wrong [Ross: This does
not always make sense].
C. Teleological and deontological theories of obligation (Ross's
is moderately or "mixed" deontological since it considers other
aspects besides consequences.
1. Ethical Egoism-
See Rand Notes on Kagan's homepage
2. Utility of the act
3. Utility of the rule
5. Respect for Persons
6. Connectionist/Care theories
(Gilligan, Noddings, Belenky, et al)
7. Wellman goes for act-utilitarians though it thwarts his own
intuitions concerning euthanasia.
8. I opt for Respect of persons and compassion/care for
sentient beings though it makes me uncomfortable with the
extent of moral improvement that lies before me.
D. Discuss question 38, p. 53 regarding the relationship between
particular cases and ethical theory. If time permits, discuss the
generation of an ethical theory in terms of the crit of ethical
theories. Worry about unreliability of intuitions in new realms,
which takes us to genetic engineering.
VI. (#3) Genetic Engineering. Read Wellman, Chapter 3.
A. Intro. remember that one of the traditional purposes of
eugenics (as Wellman points out) is been "selecting biologically
or psychologically superior parents" (CW, p. 55). Note that we
will be haunted here by the issue of decision regarding the nature
of human superiority and its possible benefits or harms.
B. DEFINING THE PROBLEM. Wellman's question is "IS THE GENETIC
ENGINEERING OF HUMAN BEINGS DESIRABLE?" (NOT question of right or
wrong, or of legal prohibition, rather one of VALUE--would Genetic
Engineering be, on balance beneficial or harmful?
C. (mention that Wellman is here concerned with Genetic
Engineering of human material, because he thinks it of more moment
for us--"when human lives are at stake. Point out that other
Genetic Engineering can effect human life as well (PAINT SF
SCENARIO), but concur that the focus for now is the narrowing to
GE on people.
D. ALLEGED VALUES
1. Prevent Genetic Illness--DISCUSS TAY-SACHS AS A PARADIGM
CASE OF A GENETIC ILLNESS WORTH PREVENTING. Read from booklet
on TAY-SACHS, pp. 4, 6.--"surely [preventing] this would be of
immense value to those who would otherwise inherit genetic
diseases and to their families." (CW, p. 57)
2. HALT DETERIORATION IN GENE POOL due to improved medical
care and technology. "the prognosis for the human race is a
rapidly accelerating incidence of genetically caused
a) This has disastrous consequences for the individual and
for society in terms of pain and costs. (discuss briefly
the costs of care, for example, in a nursing home)
3. Provide needed individuals instead of societal misfits.
4. Improve human beings
a) in terms of intelligence needed to appreciate "higher
b) in terms of sheer physical well-being.
(1) (REM FOR LATER CRITICISM: Nietzschean concept of
5. Would increase knowledge, both theoretical and practical.
E. ALLEGED DISVALUES
1. Grave Abuse
a) Risk of eliminating the less serious, and also of
trivial or wrong-headed elimination--e.g., deciding to
abort in order to choose the child's sex.
b) Baby Doe cases hint at need for government control, and
that is an antidote that may be worse than the problem.
Racial and cultural stereotypes of "superiority" would
prevail to the eventual detriment of the human race.
2. Excessive risks
a) Some so-called defects have their good side, e.g.,
sickle cell confers resistance to malaria.
b) Combinations of innocent choices, e.g., of child's sex,
could end up causing sudden societal upheavals.
c) Disastrous SF scenarios could emerge due to the
monsters we might create--and way down the line at
that--that could destroy everything we deem of value.
3. Would degrade humanity
a) Would have us treating our offspring as products, the
objects of quality control, as things, not persons, as
means, not as ends in themselves--would lead to a
quantification of people whose value is beyond price-tags.
Would harm self-respect in the inevitable failure cases.
4. Devalue sexual intercourse
a) separates function from its natural significance
(1) some might claim that to so separate these
functions would be to trivialize sex
5. Strain parent-child relationships
a) Parents would be blamed for child's defects (wrongful
birth suits would multiply)
F. THE PARENT-CHILD RELATION--DISCUSS INFLUENCE OF Genetic
Engineering ON THE FOLLOWING:
1. biological relation
2. creative relation
3. psychological relation
4. family relation
b) societal institution
5. legal relation
a) e.g., support
b) parental consent
c) parental authority
6. moral relation
a) moral duties of due care
G. Wellman's tentative conclusion: Genetic Engineering "would be
beneficial, provided it is chosen by the parent for reasons of
negative eugenics. (70)"
1. Wellman reiterates cost in suffering to individual and
society arguments from above
2. HE explains his restrictions
a) Leaving choice to parent keeps the state out of this
(1) limits the cost of mistakes
(2) recommends genetic counseling
b) the negative feature keeps one from having to decide
(1) of "superiority" e.g., in intelligence, makes for
a better human being; whereas the illnesses are more
(2) also reduces the risks inherent in the process by
leaving well enough alone
(a) science has focused on illnesses, so more
likely to be reliable
(b) won't be developing new "advantages" of time
bomb quality and breeding them into the gene pool.
3. Discuss Wellman's response to the slippery slope challenge
on p. 72ff. in terms of the question "how slippery is it?"
Discuss the importance of clear cases in finding firmer
footing and the use of this kind of argument in general (note
that it tends to recur in moral argument, and that a version
of it and its prevention is found in bar code's "even the
appearance of impropriety" and the principle of "siyyag
1. this principle of siyyag and its possible benefits and
2. discuss questions #2 concerning nature of adultery (p.
3. # 21, p. 75--would Genetic Engineering stigmatize those
afflicted with genetic defects?
4. # 11, p. 74, concerning what constitutes improvement in
human beings--which question leads to the nature of the good
and theories of value--our next topic.
VII. (#4) The Good. Read Wellman, Chapter 4.
A. Why is X good seems to be an appropriate question for almost
all x--Intrinsic vs. extrinsic value
1. Note that value theory must apply to virtually everything
whereas a theory of obligation only applies to actions
2. The task, as Wellman sees it is to synthesize a theory of
obligation with a theory of value--discuss R between the two
in teleological theories and deontological theories.
B. Theories of Value
1. Pleasure--hedonic theories
a) advantage: most obviously intrinsically good
b) disadvantage: somehow degrading
2. Object of positive interest [to be intrinsically good is to
be the object of positive interest for its own sake]
a) advantage: explains the variety of good things
b) disadvantage: does interest always make good? Seems
to make goodness transitory--x was good until it was not
the object of positive interest--e.g., Wellman's bad apple
or Mrs. F's 3d grade course.
3. The vision of God
a) The good as soterial bliss in the presence of the
(1) advantage: goal worthy of effort
(2) disadvantage: may not be possible [discuss as in
4. Love-as in agape
a) Eros [love where the lover is the center; normally
considered as sensuous self-directed love] vs. agape
[love where the "object" is the center]. Note Jewish and
Christian sources for this as paradigm.
(1) advantage: according to Wellman is that "love is
the most precious of all things (discuss Abbie
Hoffman's response to 'all you need is love'--"no; all
you need is justice.'
(2) disadvantage: even granting this, it may not be
the intrinsic good--it may be the most important
because it is necessary for happiness.
5. Virtue: As in stoic living in accordance with ones own
a) Intrinsically good, because it alone matters--discuss
Socrates' claim that the Athenians could kill him, but
they couldn't hurt him for to hurt him would be to make
him worse.--discuss issue of "things over which we have
control" and stoicism as a response to problem of
(1) advantage: virtue does seem to be intrinsically
(2) disadvantage: seems to be over-doing it to claim
that nothing else matters (discuss Epictetus' cup, and
6. Nietzsche: Power
a) advantage when we think of (noble power--not brute
force; discuss megalopsychia and the heroic ideal)
b) disadvantage: since the nobility and other character
virtues seem to account for much of the value--sheer power
is it seems a good "atness not a good "initselfness.
7. Self-realization--harmonious maximization of human
potentials; mention Maslow
a) advantage: accounts for species differentiation of the
good life--a dog's life may be good for a dog, while not
being the best package available to a person
b) disadvantage: isolating the priorities within human
nature (discuss intellectualistic paradigms vs. the sitting
rock, and point out the need for a philosophical
8. Several Irreducible things--WD Ross
a) Pleasure, virtue, knowledge, pleasure and pain being
distribute according to desert (virtue and vice)
(1) advantage: does justice to variety of goods
(2) disadvantage: will be important decisions for
which there is not decision procedure.
9. Wellman accepts an axiological pluralism with an emphasis
an experiences being the only things good for their own sake.
C. Discussion questions: is University education a good thing;
what theory of value do you use in justifying your decision.
D. What makes human nature worth realizing? Are there actions
which can permanently damage the valuable in a human person who
performs them. such that the X-ER qua x-er is metaphysically
stained? Candidates for such actions are murder, kidnapping and
rape. Some suggest that even lesser evils permanently damage the
MORAL VALUE of their performers. Some allege this of premarital
sex, coveting, others of lying, some of cheating. WE turn next to
arguments concerning cheating to see if such recriminations will
stand up under analysis.
VIII. (#5) Are cheaters qua cheaters morally evil? Read Wellman,
Chapter 5.==note that papers on original topic concerning rape are
encouraged, and will help me teach future sections of this course.
AT issue here are the kinds of action that may permanently scar the
moral value of their performers--the question we ended with just now:
Are there actions which can permanently damage the valuable in a human
person who performs them. such that the X-ER qua x-er is
metaphysically stained? Candidates for such actions are murder,
kidnapping and rape. Some suggest that even lesser evils permanently
damage the moral value of their performers. Some allege this of
premarital sex, coveting, others of lying, some of cheating. WE turn
next to arguments concerning a more (at least to me) debatable case,
that of academic cheating to see if such recriminations will stand up
Provisional definition: to commit "academic cheating" is to
misrepresent another's academic work as one's own (e.g., plagiarism;
the purchased term-paper), to misrepresent one's acquired academic
mastery in the academic context (cheating on a test with notes, codes,
etc.; or on an experiment through collusion or fudging)
Arguments that the cheater's character is so scarred, whether the
cheater is morally evil (or tarnished)
1. violates a fundamental trust in the context of student-
student and student-teacher and student-society relationships,
and is thus a paradigm case of infidelity
2. Cheating can permanently harm others, eliminating their
chances of academic success unfairly, depriving the world of
their talents, etc.(case of the excluding encyclopedic
3. Self-destructive how x becomes constitutes what x is.
4. ignoble (cowardly; violation of proper pride),
5. greedy selfish
6. combines paradigmatic deceit with misrepresentation theft
1. innate right to pursue happiness ("school is war and all's
fair . . . "
2. may result from overwhelming temptation--"coercive" bribes,
3. Institution, teachers, course, grading system, capitalism,
etc., at fault, not the cheater
4. sometimes unintentional (as with one not knowing the
conventions concerning use of others' work in writing their
5. There may be an over-riding moral imperative or contextual
situation of an unusual nature which makes apparent cheating a
plausible moral alternative--discuss Woody Allen's "The
6. Act and Agent--how do we infer from act to agent--what kind
of connection is there?
a) Might be logically connected by definition or
description of the act, e.g., x maliciously acted thus."
b) by a law of nature
c) in a process theory of becoming
d) statistical correlation--perhaps (synchronous)
e) or can we infer from act to agent? What if issues of
character are in principle unobservable to embodied
persons such as ourselves--what if we need to see
(1) Some would say we do see intentions the same way
we hear bells not sounds--briefly discuss this and
related problems of "getting outside one's skin"
(2) Others would say that we can at least see our own
intentions and argue analogically.--discuss other
minds, etc.--signs of regret, etc. Discuss the danger
in using this rule of thumb as a law of nature in
terms of pardoning thespians.
7. How could one act be so damaging?
a) Process theory
b) Repression of guilt to preserve ego
c) lowering of one's sights for consistency./bad faith and
C. My view--the cheater is in most circumstances "morally evil"
are to be morally condemned due to the diminishing of self and
other involved as well as the process character of much of our
identity. For to cheat is to begin by denying one's competence,
to rationalize the denial is to embark on bad faith, and to live
with this in one's past is to that extent to live a lie--yet there
may be cases where it is better to be a live dog with a
possibility of enhancing human dignity and value than a dead lion
or when the situation is such that only deception can preserve
higher values--BUT I am leery of all such moves where one deceives
for a higher purpose, because rarely is a purpose (that has any
significant chance of succeeding) great enough to be immune from
its sources, and one usually deceives oneself hindering one's own
autonomy to that extent.
IX. (#6) Theories of Moral Value. Read Wellman, Chapter 6. The question: WHAT MAKES
AN AGENT AS A MORAL AGENT GOOD--WHAT MAKES SOMEONE MORALLY
A. Righteousness--SUBMISSION TO THE WILL OF GOD (note centrality
of this in Islam)
1. advantage: recognizes the perfection of God
2. disadvantage: problems of the virtue of those ignorant of
God's word; seems too harsh--discuss treatments of this, e.g.,
Catholicism, relate the discussion to agent's possible
unawareness of well-springs of virtue and Thomas's concept of
G as final as well as efficient cause.
B. Love (briefly review agape and eros)
1. advantage: moral vice seems connected with the vicious and
2. love may undermine even if agapic--love needs more and is
thus not sufficient grounding
C. A disposition to choose rationally--e.g., Aristotelian
search for the mean
1. advantage: captures the enduring aspects of moral
character and the awareness that as Aristotle puts it, a
swallow does not make a spring.
2. disadvantage: does not fit in with the presence of moral
feeling--our pre-theoretic judgments (note separation of
thought and feeling in this objection)
D.. Conscientiousness--purely rational respect for the moral law,
acting from duty. Discuss differences between acting from, in
accord with or contrary to duty. Point out the contrast with
Aristotle. Argue that we would prefer the Aristotelian bank
teller to knowing that our tellers were virtuous since they fought
temptation so well.
1. advantage: explains why persons are virtuous
2. disadvantage: conscientiousness does not seem to guarantee
that the person will be virtuous--Wellman cites inquisitors;
I agree with Wellman here, but it should be pointed out that
this may be because Wellman and I do not share the theory of
the inquisitor, not logically necessarily (thou it may well be
that due to self-deception and the cautions we discussed
earlier) that the inquisitor is cruel--Remember Thoreau who
begged God to keep him far from anyone coming towards him with
the intention of doing him some good.
E. The human constitution--Joseph Butler (18 c. Anglican bishop)
1. We are made of a variety of passions: self-love, appetites
for food and revenge, benevolence, and the faculty by which we
feel rational approval or disapproval of actions or agents,
the element of conscience. In the well ordered person the
general passions have authority over the particular, and
conscience has authority over all of them. [Point out that
Plato also had a view of the good person as a well ordered
society, and discuss briefly the Republic.
a) advantage: recognizes the complexity of human nature
and the role of feelings
b) disadvantage: the human nature which seems to be
descriptive needs to be prescriptive to allow for the
possibility of human immorality--Wellman concludes that it
is descriptive human nature and is not adequate [point out
that even Kant begins one of his famous discussions of
morality with an anthropology of human reason and its
purposes--Foundations of the Metaphysics of Morals [395,
p. 11 Macmillan Beck trans.] We turn to Warnock who
designs his theory on the basis of flaws in human nature
that await improving
F. Good dispositions (Warnock)
1. Purpose of morality is to ameliorate the human predicament
from limiting factors including limitations in resources,
information, intelligence, rationality, and sympathies.
2. A disposition is a tendency to act willingly and without
social compulsion in a specific manner
a) List of Warnock virtues: non-maleficence, beneficence,
fairness, and non-deception (countering the four
deficiencies inhuman nature
(1) advantage: distinguishes between virtues and
obligations, virtues are dispositions that it would be
good to have, while obligations are actions that one
ought to do
(2) disadvantage: courage does not seem to counteract
an obvious limitation in human sympathies, temperance
vs. appetites, not a limited sympathy--so some say
Warnock too narrow.
G. Good intentions: the morally good agent is the one who intends
to bring about good results; the morally evil, the one who intends
to harm people (W.H.F. Barnes)
1. advantage: seems to provide fair basis for
2. praise of blame
3. disadvantage: seems too lenient (how explain due care,
H. Useful Personality Traits (HUME)
1. advantage: explains importance we attribute to virtue and
2. disadvantage: does not seem to capture the moral
character. e.g., dogs have useful traits.
I. Noble personality traits
1. advantage: explains why virtue commands our admiration and
2. disadvantage: where is the moral admiration
J. Wellman, Hume Revised:
1. Virtues are personality traits that it is useful for agents
to possess and useful for society to nurture. Vices are
harmful to their agents and useful for society to eradicate
a) advantage: makes sense of moral education and
cultivation of moral feelings etc., instead of compulsion
and recognizes the social dimension of morals
b) disadvantage: (recognizes the social dimension of
morals) individual and society may not benefit from same
thing and we need to know why something which does not
benefit a given society must not count as a virtue
K. Discuss number 4, p. 143 concerning the paradox of authority
choosing as discussed in Sartre (we've talked about this before).
Discuss #12, p143 concerning virtue as excellence.
L. Sometimes we are concerned with individuals and sometimes we
are concerned with what society should do, as when we decide
whether or not to have a death penalty, or legalize abortion.
X. (#7) Should Abortion on demand be legally permitted? Read
Wellman, Chapter 7. Defining the problem: Abortion defined as
"intentional termination of pregnancy by inducing the loss of the
fetus." OUR PROBLEM: SHOULD ABORTION ON DEMAND BE LEGALLY
A. Reasons for permissive legislation
1. Health of the mother
2. handicapped children
3. criminal acts--i.e., rape victim
5. illegal abortions
7. the right to privacy in
a) relation of woman to her physician (privileged and
b) mother's relation to father of the child
c) woman's personal (private) decision to have or have not
B. Reasons for restrictive legislation
1. Physical and psychological risk to the mother
2. Better alternatives
5. Dangerous precedent
6. The rights of the unborn
C. Rethinking the murder argument: is abortion really murder as
"an unjustified act of intentionally taking a human life"? At
least 3 responses to this:
1. abortion is justifiable exception to the rule
a) self-defense (mother's argument) and proper defense of
another (doctor's argument)
(1) not justify on demand; not clear how the fetus is
using unlawful force, etc.
b) duress and lesser evil
(1) criticism: not the lesser evil.
c) double-effect [in a case where x is a greater good and
x intended not y]--intend to do x and only permit y.
(1) criticism: no greater good than a human life
(a) only leaves open the case where both go or the
2. killing an organism not wrong until it has acquired a human
a) discuss business of vegetative, sensitive, and rational
soul in philosophy of Aristotle. [40 days for male; 80 for
female]. SLOPED back to beginning.
(1) Problem if baptism necessary condition for
3. human fetus fails to satisfy less speculative
(metaphysical) criteria of humanness. DEFINING A PERSON
a) not a separate organism, thus not a person. response:
is a separate organism in any important sense.
b) not distinct: is so--genotype, etc.
c) not independent, viable and self-sustaining.
Response: this also applies to new-borns, etc.
d) not yet a conscious rational agent with personality.
Response: this potentiality makes the difference.
XI. Wellman's case for abortion on demand
A. Though uncertain as to why he thinks so, using an argument
based on the greater similarity of the unborn to the fetus and the
new-born to a person, Wellman thinks the fetus not a human being;
therefore not a person therefore abortion not infanticide.
B. His comment on Roe vs. Wade: not the privacy of the
woman/doctor for doctor/patient subject to all kinds of
regulations for what is normally taken to be good reason.
C. not privacy of mother-father, since abortion on demand can
leave the father out totally
D. seems to be individual privacy. kinds of individual privacy:
information, intrusion, personal rights to choose.
1. What is a purely private decision:
a) fundamentally affects a person (choosing it) (court in
Eisenstadt v. Baird)
b) not harm others (Mill)
c) Wellman: a decision that affects the life of one
person much more than it affects the life of any or all
other persons--problem with the handicapped child who is
affected more than the other (at least if she decides to
carry to term)
2. CW rejects privacy argument since the concept of privacy
does not seem to be clear enough to do the job: he focuses on
the ILLEGAL ABORTIONS argument: Wellman feels that any
interference in this decision does terrible harm and
therefore is not an interference to be condoned in the law.
XII. NOTE: EXODUS 21:22F. MY POSITION IS BASED ON A COMBINATION OF
JEWISH TRADITION (WHICH IS IN THIS CASE WOMEN CENTERED) AND EPISTEMIC
A. Discuss "the limb" and the "rodef". Mention Thomson's
1. Limb: point out seriousness and need for physician
2. Rodef: discuss kinds of possible danger to the mother.
a) Go over cases of unintentional attack and insanity
which may override even parent-child relationship (and may
B. Epistemic uncertainty in definition of person; notion of
paradigm persons and other candidates for personhood--what if
former come in conflict with the latter. I go with the former,
but with trepidation. Though I agree with Wellman concerning the
dangers of regulation, and though I think this choice is
ultimately (legally or not) up to the mother--I deeply suspect any
totally unregulated in the sense of availability medical
procedure. I affirm the legal (and moral) right to choose without
denying, while even more affirming the moral duty to exercise this
right with care.
XIII. (#8) What should be The End of the Law? Read Wellman, Chapter
THEORIES OF THE PURPOSE OF THE LAW==REM WELLMAN CONCERNED WITH THE
AS A SYSTEM, NOT THIS LAW OR THAT: [NOTICE THAT THERE IS HERE THE
ASSUMPTION THAT THE LAW HAS ONE PURPOSE OR SUM OF PURPOSE WHICH IS
SELF-CONFLICTING--POINT OUT THAT THIS HAS BEEN DEBATED AND REFER THE
INTERESTED TO HILL'S 1985 "NORMATIVE CONFLICT IN LEGAL SYSTEMS."
A. Peace--discuss Hobbesian view of state of nature; persons
desires, fears and egotism eventuating in a legal system to keep
each other from each other's throats.
1. advantage: realistic in recognizing human frailties and
need for peace
2. disadvantage: peace necessary, but not sufficient
1. According to Cicero (stoic) virtue consists in living in
accordance with nature/reason in which each person dwells a
spark--societal laws should help us stay within the natural
a) advantage: makes law rational and provides a standard
for justifying law
b) disadvantage: seems to make the law too encompassing
and ignores pragmatic features following from complexity--
Wellman's example is that of the child's sassing his
mother which he takes to be unenforceable and in violation
of family privacy==get ben sorrer cite: Deut. 21:18ff.
(1) discuss harm principle and principle of Millite
C. Natural rights==life liberty and the pursuit of
1. advantage: makes sense of how governments are there for
men not vice versa
2. disadvantage: if natural right is taken as somehow being
independent of society, then contradiction since rights are
essentially social. POSSIBLE RESPONSE: NATURAL RIGHTS MAY BE
INDEPENDENT OF ANY PARTICULAR SOCIETY WITHOUT BEING
INDEPENDENT OF SOCIETY IN GENERAL.
a) discuss fallacies of composition and division in the
modern sense; explain via the 22 legged table no one or
two of its legs necessary or sufficient for holding up its
D. the common good --Aquinas. Ethical egoism translated from
individual to social terms.
1. This makes sense out of the law's role as being for the
good of a society and makes sense also out of the fact that
the law should not discriminate among citizen's without cause
2. disadvantage: what of non-citizens; why don't they count?
E. the good of humanity--Bentham (for everyone affected)
1. advantage: fits in with a general theory of obligation--
2. disadvantage: seems to violate special duty of legislator
F. freedom --autonomy one's right to make one's own choices and to
exercise practical reason--the purpose of the law ought to be to
maximize freedom and to minimize coercion within a society.
1. advantage: follows form a general ethical theory (Kant's)
and also projects a high social ideal
2. disadvantage: since coercion is essential to the law it is
in conflict with the goal of freedom "as no more rational to
use the law as a means to achieving human freedom than it
would be to use germs as a means of achieving human health.--
discuss problems with this criticism:
a) we do use germs as such a means in inoculations
b) the problem may not be a function of the concept of
law, but rather a consequence of the nature of freedom
from and to and its possible collisions with others
exercises of options
3. advantage: law regulates interactions; justice is the part
of morality concerning interactions between persons, justice
seems to be the proper end of the law.
4. disadvantage: there seem to be no clear criteria for
justice--the goal is to indefinite
a) possible response: there are clear cases of injustice-
-the law is to eliminate those and thus promote justice.
(1) counter-criticism: what are these cases?
(2) response: lead paint food . . .
5. Consider questions 38 and 39, p. 197
H. the good of all sentient beings (including anything that can
feel, I suppose) (RANDOM HOUSE DICTIONARY, s.v. "having the power
of perception by the senses . . . characterized by sensation
. . . . one who or that which is sentient . . . .")
1. advantage: seems to follow logically form a moral
2. disadvantage: seems to over-ride special obligation of
legislator to constituent
a) Wellman's reply; well, it ought to since the good of al
3. but what about giving up our standards to help others
a) Wellman thinks that this in the crude sell it all and
give it away sense would leave more misery.
4. Further, Wellman thinks that "Although [the attractive
valuable features in the other arguments such as justice
liberty (and freedom?) have] no intrinsic value, both
contribute immensely to human happiness. . . . [and
therefore] ought to be ends of the law." 
XIV (#9) Preferential Admissions. Read Wellman, Chapter 9.
Wellman's version of the question: "Do blacks have a MORAL right to
A. Rights of action and rights of recipience. Non-interference v.
duty to aid. This right seems to be of the latter variety. Note
that we are here talking of a moral not a legal right.
Preferential treatment = different cut-off, or second chance to
revise application or somesuch. Does not = affirmative action
which can occur via targeting different body of applicants to
change the structure of the initial pool.
B. Reasons to affirm such a right:
1. Remedial justice for wrongful injuries of slavery,
discrimination (a la Jim Crow), etc.
a) disadvantage: parties involved don't seem to be
parties influenced by the remedy; response--unjust
2. UNJUST ENRICHMENT
a) even though the individuals involved at present may not
be responsible for the wrong-doing, they are profiting
(1) advantage: recognizes that moral implication is
(2) disadvantage, involves complex causal hypotheses
when brought to bear against, e.g., other non-WASPS,
such as Chinese or Japanese Americans.
(3) disadvantage: also such concepts of remediation
are normally individualistic, an exception, however,
concerns REPARATIONS OWED
3. REPARATIONS OWED--
a) disadvantage: seems to be unfair to exceptional
b) advantage: not allow for "following orders" kinds of
excuses, and pursues just reallocation and compensation
for injured parties.
4. DISTRIBUTIVE JUSTICE
5. EQUAL OPPORTUNITY
C. Reasons to deny:
1. Reverse discrimination (discrimination is wrong no matter
who the victim--NOTE THAT THIS ASSUMES THAT DISCRIMINATION
(UNFAIR USE OF DIFFERENCES IS TAKING PLACE)
2. Inequitable treatment--violates principle of like treatment
for like cases (e.g., violation of consistency in exam grading
is wrong for this reason): NOTE that this assumes we are
dealing with like cases
3. Unfair consideration (again, assumes that this is an
illegitimate consideration--note that this assumption is
rhetorically useful sine it is this very assumption that is
held to be the source of the wrong being addressed; WHAT KIND
OF REPLY IS NECESSARY TO THIS?)
4. Unfair burden on the few whites who bear the brunt.
5. Unjust confiscation (taking of private property for public
uses)of rights of academic institutions to allocate its
resources as they see fit.
1. Remedial, distributive, and unjust enrichment; what about
responses? e.g., unjust distribution of burdens?
2. A THEORY OF JUSTICE: ARISTOTLE, equality essential feature
of justice, e.g., EQUALITY of compensation with respect to
wrong done, equality of reward to task, equal treatment--
--but what about principle of like cases? How deal with
3. FRANKENA "Justice consists in the equal treatment of all
persons except as inequality is required by just-making
reasons,"--a legitimate justification for the act in face of
the decision made--e.g., we accepted her because her scores
4. Response to reverse discrimination argument in terms of
a) show the existence of some just-making reason
b) that the institution can give places as it pleases
without justice being relevant
(1) e.g., Wellman's greeting card li.
--is admission more like giving away tickets [no moral
claim on part of recipient] or grading exams [WHERE
THERE IS A moral claim on part of recipient]?
5. JUSTINIAN INTERLUDE (6 cent CE). "natural justice" defined
as to each his own, giving to each according to h/h right.
a) Insight: justice and rights essentially connected.
(1) But how apply in a case like this where blacks'
right to a remedy seems to collide with a white's
right fair consideration.
b) And derive knowledge of a right based on a theory of
justice which presupposes clarity on rights in the first
6. RAWLS TWO PRINCIPLES FOR ASSESSING social "INSTITUTIONS OF
a) each PERSON IS TO HAVE AN EQUAL RIGHT TO THE MOST
EXTENSIVE TOTAL SYSTEM OF equal BASIC LIBERTIES Compatible
with a similar system of liberty for all; and
b) social and economic inequalities are to be arranged so
that the are both (a) to the greatest benefit of the least
advantaged, consistent with the just savings principle,
and (b) attached to offices and positions open to all
under conditions of fair equality of opportunity."
(Wellman, p. 212)[ note just savings principle explained
in RAWLS, p. 287)
7. Wellman's argument--preferential admissions defended
a) to offset bias as function of language and culture
b) temporary expedient
c) Wellman argues that no one has a claim for a place--not
like a grade since prior to the relation.
d) institutions places are part of a public trust--not
XV. (#10) What is "A Right"? Read Wellman, Chapter 10.
The need for clarity on the linguistic level and hope for subsequent
insight on moral level--review Wellman's argument.
Hobbes (1588-1679)--"fear and I were born twins." Lived through
the 30 years' war ("protestant revolt against catholic oppression')
(1618-1648)Scientific revolution [1548-1600, Bruno; 1571-1630, Kepler;
1564-1642, Galileo; 1642-1727, Newton], Cartesian [1596-1650]
revolution, Spinoza (1632-1677), English civil war (1642), 1665 Great
plague in London, 1666 great fire of London. (source: 1988 Information
Please Almanac; pp. 111, 661ff.)
A. Hobbes. A right = a liberty; "a person is at liberty to do
something when there is no obligation to refrain from doing it."
1. advantage: makes sense of connection between rights and
2. disadvantage: problem with passive rights which seem to
consist of others' obligations to refrain from doing something
to the right-holder, or the obligation of another to do
something for the right-holder.
B. Austin 19th century English jurist--a relative duty imposed by
an authority with enforcing sanctions (legal imposed by Sovereign;
moral by God)
1. virtue: duty language is more evident than rights
2. disadvantage: duties don't seem to be waiveable,
renounceable delegatable character of rights
a) don't they? Am I, e.g., obligated to keep a promise
when I've been released from it by the promissee?
C. Joel Feinberg (contemporary philosopher of law) a valid claim
against someone to perform a duty.
1. makes sense out of the special status of the right-holder
vis-a-vis his or her rights.
2. disadvantage: does not make enough sense of what Wellman
calls "liberty-rights," e.g., his right to park front of
his building (does he really have this specific right) which
does not require that others not exercise their right to park
in front of his building.
a) Possible Feinberg response. Wellman may be mistaking
the scope of the right; we may have a right to park in
front of the building which requires street-peddlers not
to interfere by setting up stalls in the spaces . . . .
Similarly with rights in a competitive situation; the
right of a runner to win may be a group right protecting
individual runners as members of the group from
interference by members of certain other groups; e.g.,
corrupt judges, over-enthusiastic spectators, etc.
D. H.L.A. Hart "a PROTECTED CHOICE"
1. a right according to this view consist of a bilateral
liberty to do some x or not do some x--"a liberty of acting or
not acting in some specific manner, together with a protective
perimeter of duties not to interfere with the exercise of this
bilateral liberty in certain specific ways. (Wellman, 229)"
a) makes sense of the difference between a right and a
duty; a right is permissive, while a duty is mandatory
b) disadvantage: has problems with overlapping cases
where x has a duty and a right to do y, e.g., compulsory
E. John Salmon--"an interest protected by a rule" (an interest
here being treated as a component of one's good, e.g., food,
freedom, wealth) kind of rule determines the kind of right
1. advantage: makes sense out of the value of rights
2. disadvantage: we may have a right to; do something not in
our interest; e.g., (Wellman's example) smoke.
a) possible response--either smoking has value, or we
don't have the right, or the right to smoke is a misnomer
for some other right, e.g., the right to take-risks . . .
F. Joseph Raz "an interest based reason"--i.e., when x has a
right to y, some aspect of x's well-being is a sufficient reason
for holding some other persons to be under a duty.
1. advantage: explains role of rights in practical reasoning
"the function of rights in practical reasoning is to ground
duties to individual upon interests" (Wellman, 232); that x
has a right to y from me is a reason for me to give y to x.
2. disadvantage: begs the question concerning the grounds of
rights, e.g., utility, the will of G, . . . Wellman thinks
the best kind of def will allow for the meaningfulness of the
debate between theories.
G. Robert Nozick: a side-constraint the function of ights is to
"render certain ways of pursuing interests or goals morally or
legally impermissible." (CW 233)
1. advantage: seems to capture the force of negative rights
2. not so helpful with positive rights: e.g., rights to
recipience, welfare rights, etc. I.e., rights imposing duties
to act in certain ways.
a) possible response: it might be inelegant, but given
any finite range of behaviors, once we have rules about
all but one, this is tantamount to imposing the remainder
AND VICE VERSA, THUS the distinction between positive and
negative rights is theoretically eliminable. [note, this
does not mean we are obligated to eliminate it; to the
contrary, it may license it).
H. Ronald Dworkin: an individual trump over social goals
1. advantage: makes sense out of the distributive nature of
rights, that rights apply to individual right-holders.
2. disadvantage: rights of individuals against specific other
individuals don't seem to be either explained or possible.
I. Wesley Hohfeld--recent American Jurist distinguishes between
the range of right talk over legal liberties, claims, powers, and
1. x has a legal LIBERTY to do a in face of some second party
y if and only if x has no legal duty to y not to do a. e.g.,
my legal liberty to look at the passer-bys from my office
2. x has a legal CLAIM to a in face of some second party y if
and only if y has an legal duty to X to do a. e.g.,
creditors claim against a debtor.
3. x has a legal POWER over y to bring about some legal
consequence C for y if and only if x is able to perform some
voluntary action that would be recognized by the courts as
having this C for y.. e.g., my power to give away a copy of
4. x has a legal IMMUNITY in face of y against some legal
consequence C if and only if there is no voluntary action that
y could perform that would be recognized by the courts as
having this C for x. e.g., I am legally immune from contracts
entered into for me by non-agents. e.g., The balding
president of my seminary has legal immunity form all the
contracts with hair-restorers that practical-jokers have
signed him up for.
Hohfeld concludes that strictly speaking a legal right is a
single legal claim of one party against one second party.
J. Wellman's criticism and proposal
1. it is mistake to identify a right, e.g., the right to vote
or the right to repayment, with any single legal claim since
any single legal claim may die on the vine or not carry
2. Wellman agrees that a rights is essentially relational, but
wants to invoke a complex of legal claims, liberties, powers
and immunities in the constitution of a legal right.
K. Wellman sees as essential the features of freedom (e.g., the
ability to exercise an option) and control, and (essentially
connected) the meaningful controlling power that allows one to
exercise this option. THEREFORE Wellman DEFINES A RIGHT AS A
SYSTEM OF LEGAL POSITIONS THAT CONFERS [legal] AUTONOMY (WITH ITS
TWO ASPECTS OF FREEDOM and CONTROL) UPON ONE PARTY IN FACE OF ONE
MORE SECOND PARTIES IN SOME POSSIBLE CONFRONTATION OR CONFLICT OF
WILLS." (P. 238)
1) for Wellman, Hohfeld's legal analysis provides a model for
moral analysis in terms of MORAL claims, liberties, powers and
2) So in Wellman's final formulation, a moral right would be a
system of normative autonomy. (239, ft.)
XVI. (#11) Is Capital Punishment ever right? Read Wellman, Chapter
A. Arguments for capital punishment
5. Fulfilling a duty
B. Arguments against capital punishment
1. The moral law (usually conceived as divine
moral law or self-evident truth)
2. Monstrous harm
3. Unnecessary evil
5. Corrupting influence
C. Criticisms of some arguments:
1. The moral law
a) The moral law via scriptures-some
traditional difficulties (contextual,
higher, philosophical criticism)
b) The moral law via intuition-if rational
persons disagree can there be a self-
evident principle (discuss problems of
intuitionism and multiple systems)
a) the problem of reform
b) the problem with the statistics
c) who deterred [the dilemma]
XVII. (#12) How can anyone one ever know which act is right? Read
Wellman, Chapter 12. The challenges of ethical skepticism,
relativism, emotivism, sophism.
XVIII. (#13) Responses to the challenges. The authoritarian paradox,
revelation, intuitionism, naturalism, good reasons approach. Read
XIX. (#14) Ethical systems and the challenge of science. Determinism
and free-will. Ethical systems and codification. Theory and practice
A. Discuss Deweyian method. Discuss disadvantage that method
apparently presupposes basic value decision.
B. Discuss good reasons approach. Go over deductive, inductive,
conductive and end with Wellman's weighing the reasons.
1. advantage: makes sense of the give and take of moral
argument and our ordinary decision-making
2. disadvantage: leaves us without deductive or even
inductive certainty in the realm of morals [and Wellman seems
to suggest that this is true elsewhere as well; discuss his
book Challenge and Response).
C. What to do in the absence of certainty? In situations that are
live, forced, and momentous, we should do as Wellman argues,
realizing the risk, but knowing that not to decided in those cases
is to decide.
**(CALVIN'S DATES WERE 1509-64)
XX. (#14) Ethical systems and the challenge of science. Determinism
and free-will. Ethical systems and codification. Theory and practice
A. "Such [moral] problems are general, yet specific; each concerns
all cases of a specified kind. Specific moral problems are
practical because they arise out of practical decisions and their
answers are readily applicable to future practice." (298)
B. Solutions to Moral Problems presuppose ethical theory, "some
theory about right or wrong, good or bad." (298) Thus theory
needs to be understood in terms of practice. Desiderata are
1. more clear theory
2. explicate implications of theory
3. arguments why this theory more adequate than its rivals
4. system--"complete intelligibility and full rational
b) coherent revelation of connections
(1) mutual credibility enhancement of the parts
5. "To sum it up, an ethical system is a complete, coherent,
articulate set of ethical theories.
a) Note that fragments of such systems can be discerned
in, e.g., divine law and utilitarian theories;
relativistic and mores theories, etc.
A. Civil Disobedience, The Nature of Right
B. Genetic Engineering The Good
C. Cheating in Academia Moral Value
D. Abortion, The End of the Law
E. Preferential Admissions "A Right"
F. Capital Punishment Moral Knowledge
God, utility, human interest, mores, love, nobility, intuition of non-
C. theory and practice
1. not seem that theory tells what to do since folk with
different theory agree, and those with same theory disagree.
2. Wellman thinks that the important feature of an ethical
theory is that it explains which considerations are important
in decision-making process
D. thus 2 foci: what to consider and how to consider it
1. hence focus on moral ethical considerations and on
XXI. Collisions between theory and practice, constructionalist approach
A. Discuss paradigm cases and deliberate in and exclusion of
features in map-making and in constructional systems.
1. Locate moral paradigms
2. sketch relevant features
3. when two good examples exclusive look elsewhere or
reconsider exclusions; analyze, explore, map and analyze,
explore, map again
4. REMEMBER (THEORIES) MAPS AND TERRITORIES (IN THIS CASE
PRACTICES) in realms of human action THE influence GOES BOTH
WAYS. Discuss blueprints, designs, returning to drawing board
and Otto Neurath (1882-1945)'s ship on the waters.
B. Locating one's heroes takes one a long way into locating one's
morality [and one can learn more about one's philosophy, as well.]
C. Test preparation session.