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Why should America restrain itself in detaining, interrogating, and targeting terrorists when they show it no similar forbearance? Is it fair to expect one side to fight by more stringent rules than the other, placing itself at disadvantage? Is the disadvantaged side then permitted to use the tactics and strategies of its opponent? If so, then America's most controversial counterterrorism practices are justified as commensurate responses to indiscriminate terror. Yet different ethical standards prove entirely fitting, the author finds, in a conflict between a network of suicidal terrorists seeking mass atrocity at any cost and a constitutional democracy committed to respecting human dignity and the rule of law. The most important reciprocity involves neither uniform application of fair rules nor their enforcement by a simple-minded tit-for-tat. Real reciprocity instead entails contributing to an emergent global contract that encompasses the law of war and from which all peoples may mutually benefit.
Who done it? is not the first question that comes to mind when one
seeks to make sense of mass atrocity. So brazen are the
leader-culprits in their apologetics for the harms, so wrenching
the human destruction clearly wrought, meticulously documented by
many credible sources. Yet in legal terms, mass atrocity remains
disconcertingly elusive. The perversity of its perpetrators is
polymorphic, impeding criminal courts from tracing true lines of
responsibility in ways intelligible through law s pre-existing
categories, designed with simpler stuff in mind.
Who done it is not the first question that comes to mind when one
seeks to make sense of mass atrocity. So brazen are the
leader-culprits in their apologetics for the harms, so wrenching
the human destruction clearly wrought, meticulously documented by
many credible sources. Yet in legal terms, mass atrocity remains
disconcertingly elusive. The perversity of its perpetrators is
polymorphic, impeding criminal courts from tracing true lines of
responsibility in ways intelligible through law s pre-existing
categories, designed with simpler stuff in mind.
Common morality—in the form of shame, outrage, and stigma—has always been society’s first line of defense against ethical transgressions. Social mores crucially complement the law, Mark Osiel shows, sparing us from oppressive formal regulation. Much of what we could do, we shouldn’t—and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows. Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms. Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.
Why should America restrain itself in detaining, interrogating, and targeting terrorists when they show it no similar forbearance? Is it fair to expect one side to fight by more stringent rules than the other, placing itself at disadvantage? Is the disadvantaged side then permitted to use the tactics and strategies of its opponent? If so, then America's most controversial counterterrorism practices are justified as commensurate responses to indiscriminate terror. Yet different ethical standards prove entirely fitting, the author finds, in a conflict between a network of suicidal terrorists seeking mass atrocity at any cost and a constitutional democracy committed to respecting human dignity and the rule of law. The most important reciprocity involves neither uniform application of fair rules nor their enforcement by a simple-minded tit-for-tat. Real reciprocity instead entails contributing to an emergent global contract that encompasses the law of war and from which all peoples may mutually benefit.
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