On Compromise and Coercion



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11 . Cf. R. Cohen-Almagor, “Dutch Perspectives on Palliative Care in the Netherlands," Issues in Law and Medicine, Vol. 18, No. 1 (July 2002): 111-126.


12. Reading included the following: Roe v. Wade, op. cit.; Judith Jarvis Thomson, "A Defense of Abortion," Philosophy & Public Affairs, Vol. 1, No. 1 (1971): 47-66; Ronald Dworkin, Life's Dominion (New York: Knopf, 1993); John Finnis, "The Rights and Wrongs of Abortion," Philosophy & Public Affairs, Vol. 2, No. 2 (1973): 117-145; L.W. Sumner, “Toward a Credible View of Abortion," Canadian J. of Philosophy, Vol. 4, No. 1 (1974): 163-181; Roger Wertheimer, "Understanding the Abortion Argument," Philosophy & Public Affairs, Vol. 2, No. 2 (1973): 67-95.

13. http://www.silentscream.org/

14. http://www.ibiblio.org/sullivan/bios/Sadat-bio.html

15. ABC News, "American Porn," (May 27, 2004), available at http://abcnews.go.com/sections/Primetime/Entertainment/porn_business_040527-1.html

16 . http://www.hermitagesolutions.com/download/Internet%20Stat_032.doc

17 . Cf. C. MacKinnon, Feminism Unmodified (Cambridge, Mass.: Harvard University Press, 1987); Mary McIntosh and Lynn Segal (eds.), Sex Exposed (New Brunswick, New Jersey: Rutgers University Press, 1992); A. Dworkin, “Pornography: Men Possessing Women,” in M. Humm (ed.), Feminism (New York: Harvester, 1992); C. MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993); Andrea Dworkin and Catherine MacKinnon, “Questions and Answers,” in Making Violence Sexy (Columbia University Teachers College Press, 1993); M. Barron et. al., "Sexual Violence in Three Pornographic Media: Toward a Sociological Explanation," J. of Sex Research, Vol. 37, No. 2 (May 2000): 161-168; D. Schaeffer, "Feminism and Liberalism Reconsidered: The Case of Catherine MacKinnon," American Political Science Rev., Vol. 95, No. 3 (September 2001): 699-708.

18 . See the discussion in T. M. Scanlon, The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003), esp. 84-112; David A. J. Richards, The Moral Criticism of Law (Encino, CA: Dickenson Pub., 1977).

19 . See Rice et al. v. Paladin Enterprises, 128 F.3d 233 (1997); Rod Smolla, Deliberate intent (N.Y.: Crown, 1999); Raphael Cohen-Almagor, The Scope of Tolerance: Studies on the Costs of Free Expression and Freedom of the Press (London: Routledge, 2006), pp. 246-252.

20. A few years ago one bathing suit company decided to post large placards of a girl in a bathing suit in Bnei Brak, a very orthodox town outside Tel Aviv. I presume they wanted to provoke media attention. They did. It was a highly successful promotion campaign without publishing even one poster in that town.

21 . A case in point is H.C. (High Court of Justice) 5016/96, 5025/96, 5090/96, 5434/96 Horev v. Minister of Transport (Jerusalem, April 1997) (Hebrew).

22. Patrick Dobel, Compromise and Political Action (Savage, Maryland: Rowman and Littlefield, 1990), esp. p. 80; Arthur Kuflik, "Morality and Compromise", in J. Roland Pennock and John W. Chapman (eds.), Nomos XXI: Compromise in Ethics, Law and Politics (New York: New York University Press, 1979): 38-65.

23 . I am grateful to Steve Newman for elucidating this point in his comments on this paper.

24 . Suicide attacks started in Israel on April 16, 1993, at a restaurant near Mechola in the Jordan Valley. The phenomenon had intensified after the signing of the Oslo Accords. Between April 1993 and February 2005 there were more than 170 suicide attacks. They resulted in more than 1,000 people killed and more than 4200 people injured. Cf. http://www.ict.org.il/. I thank Arie Perliger for the updated information.

25 . http://www.yale.edu/lawweb/avalon/imt/munich1.htm#art5

26 . Michael A. Weinstein, "Coercion, Space, and the Modes of Human Domination," in J. Roland Pennock and John W. Chapman (eds.), Nomos XIV: Coercion (Chicago/New York: Aldine - Atherton, Inc., 1972), p. 65.

27. Wertheimer argues that one acts voluntarily only when one's motivations are internal to the self or internal to the self in a certain way. See Alan Wertheimer, Coercion (Princeton: Princeton University Press, 1987), pp. 287-306, esp. p. 291.

28 . Willard Gaylin and Bruce Jennings, The Perversion of Autonomy (New York: The Free Press, 1996), p. 154.

29. Michael J. Murray and David F. Dudrick illustrate this by the following example: a person is carrying her family's weekly grocery money. We would not deem her morally culpable for surrendering it to someone who coerces her to give it up. But if she voluntarily hand the money over to a passerby, we would hold that she acted irresponsibly, and thus be worthy of some moral condemnation. See Murray and Dudrick, “Are Coerced Acts Free?,” American Philosophical Quarterly, Vol. 32, No. 2 (April 1995), p. 19.

30. As McCloskey notes, power may be exercised via the use of force, by manipulation, conditioning, pressure; by rational, non-rational, irrational persuasion, propaganda; by behavior modification devices, operations consented to, drugs freely or un-freely used, hypnosis, brain-washing applied with or without the help of force; by the use of inducements, personal charisma, as well as in many other ways. McCloskey rightly argues that while various of these forms of power are loosely characterized as forms of coercion, coercion proper should be distinguished from all these forms of power. See H. J. McCloskey, “Coercion: Its Nature and Significance,” Southern J. of Philosophy, Vol. 18, No. 3 (Fall 1980), p. 335.

31 . Virginia Held, "Coercion and Coercive Offers," in J. Roland Pennock and John W. Chapman (eds.), Nomos XIV: Coercion (Chicago/New York: Aldine - Atherton, Inc., 1972), p. 61.

32 . Robert Paul Wolff, "Is Coercion 'Ethically Neutral'?," in J. Roland Pennock and John W. Chapman (eds.), Nomos XIV, p. 146.

33 . This is based on an example that Cheyney C. Ryan brings in “The Normative Concept of Coercion,” Mind, Vol. 89 (1980), p. 484. In Ryan's example, the prisoner grabs Jones's son who deems to be innocent. Jones's accomplice is not.

34. Scott Anderson, Coercion, Agents and Ethics (Ph.D. dissertation, University of Chicago, 2002), chap. 2.

35. Cf. Robert Nozick, “Coercion,” in Sidney Morgenbesser, Patrick Suppes, and Morton White (eds.), Philosophy, Science, and Method: Essays in Honor of Ernest Nagel (New York: St. Martin’s Press, 1969), p. 459; Michael Gorr, “Toward a Theory of Coercion,” Canadian J. of Philosophy, Vol. 16, No. 3 (September 1986), p. 395. For discussion on the distinction between coercive threats and conditional offers, see Craig L. Carr, “Coercion and Freedom,” American Philosophical Quarterly, Vol. 25, No. 1 (January 1988): 59-67. See also Timo Airaksinen, Ethics of Coercion and Authority (Pittsburg, Pa.: University of Pittsburgh Press, 1988); Arthur Ripstein, "Authority and Coercion," Philosophy & Public Affairs, Vol. 32, Issue 1 (January 2004): 2-35.

36 . People of the State of Michigan v. Jack Kevorkian, No. 221758, Court of Appeals of Michigan, 248 Mich. App. 373; 639 N.W.2d 291; 2001 Mich. App. LEXIS 225 (November 20, 2001). For further discussion, see the concluding chapter in R. Cohen-Almagor, The Right to Die with Dignity: An Argument in Ethics, Medicine, and Law (Piscataway, NJ.: Rutgers University Press, 2001).

37 . Jack Kevorkian, Prescription: Medicide (Buffalo, N.Y.: Prometheus Books, 1991).

38 . Robert Post notes in his comments that the system of copyright law may compromise academic freedom. Property right is the right to agree or disagree, to give or withhold, without reasons. A copyright is a right to allow or withhold permission, for any reason or no reason. Thus it was no violation of academic freedom for Kevorkian to withhold consent from me. It is possible that my reproduction would have been fair use--in which case UCLA's refusal would have compromised academic freedom.

39 . The American Association of University Professors of December 31, 1915 instructs that "the scholar has professional functions to perform in which appointing authorities have neither competency nor moral right to intervene. The responsibility of the university teacher is primarily to the public itself, and to the judgment of his own profession; and while, with respect to certain external conditions of his vocation, he accepts a responsibility to the authorities of the institution in which he serves, in the essentials of his professional activity his duty is to the wider public to which the institution itself is morally amenable." See http://www.campus-watch.org/article/id/566. For further discussion, see Robert Post, "The Structure of Academic Freedom," (draft paper).

40 . By “sub-culture” it is meant a community with certain distinguishing cultural practices living within a liberal democracy. “Sub” relates only to its relative size compared to the larger community in which it resides.

41 . Binaifer A. Davar “Women: Female Genital Mutilation," Texas J. of Women & the Law, Vol. 6 (1997): 257-271; Amy Stern, “Female Genital Mutilation: United States Asylum Laws Are in Need of Reform," American Univ. J. of Gender & the Law, Vol. 6 (1997): 89-111; Beth Ann Gillia, “Female Genital Mutilation: A form of Persecution," New Mexico L. Rev., Vol. 27 (1997): 579-614; Joanne A. Liu, “When Law and Culture Clash: Female Genital Mutilation, A Traditional Practice Gaining Recognition as a Global Concern," New York Int. L. Rev., Vol. 11 (1998): 71-95; Gregory A. Kelson, “Female Circumcision in the Modern Age: Should Female Circumcision Now Be Considered Grounds for Asylum in the United States?," Buffalo Human Rights L. Rev., Vol. 4 (1998): 185-209; Carol M. Messito, “Regulating Rites: Legal Responses to Female Genital Mutilation in the West," In the Public Interest, Vol. 16 (1997-1998): 33-77; R. Cohen-Almagor, “Female Circumcision and Murder for Family Honour among Minorities in Israel," in Kirsten Schulze, Martin Stokes and Colm Campbell (eds.), Nationalism, Minorities and Diasporas: Identities and Rights in the Middle East (London: I.B. Tauris, 1996): 171-187; Sarah Webber and Toby Schonfeld, "Cutting History, Cutting Culture: Female Circumcision in the United States," American J. of Bioethics, Vol. 3, Issue 2 (2003): 65-66.

42 . Hofer et al. v Hofer et al. (1970) 13 DLR (3d) 1.

43. Ibid., p. 21. For further discussion, see William Janzen, Limits of Liberty: The Experiences of Mennonite, Hutterite, and Doukhobour Communities in Canada (Toronto: University of Toronto Press, 1990), p. 67.

44. Hofer et al. v Hofer et al. (1970), p. 4.

45. Ibid., p. 21.

46 . Will Kymlicka and Raphael Cohen-Almagor, "Democracy and Multiculturalism," in R. Cohen-Almagor (ed.), Challenges to Democracy: Essays in Honour and Memory of Isaiah Berlin (London: Ashgate Publishing Ltd., 2000): 89-118, also in Maria Baghramian and Attracta Ingram (eds.), Pluralism: The philosophy and politics of diversity (London: Routledge, 2000). For further discussion, see Brian Barry, Culture and Equality (Cambridge: Polity Press, 2001); Bhikhu Parekh, "The Logic of Intercultural Evaluation," in John Horton and Susan Mendus (eds.), Toleration, Identity and Difference (Houndmills: Macmillan, 1999): 163-197.

47 . For another interesting case regarding the scope of tolerance at schools and whether it is possible to limit readings that challenge fundamentalist beliefs, see Mozert v. Hawkins County Board of Education, 579 F. Supp. 1051 (E.D. Tenn. 1984); 582 F. Supp. 201 (E.D. Tenn. 1984); 765 F.2d 76 (6th circ. 1985); 647 F. Supp. 1194 (E.D. Tenn. 1986); 827 F.2d 1058 (6th circ. 1987); 484 U.S. 1066 (1988); Nomi Maya Stolzenberg, "'He Drew a Circle That Shut Me Out': Assimilation, Indoctrination, and the Paradox of a Liberal Education," Harvard L. Rev., Vol. 106 (1993): 581-667. In this context, see Wisconsin v. Yoder, 406 U.S. 205 (1972), where the Supreme Court exempted the Amish community from state compulsory education law, on the ground that the law interfered with the free exercise of their religion. For discussion of the Amish education system, see John A. Hostetler, Amish Society (Baltimore, MD.: Johns Hopkins University Press, 1993): 171-190.



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