Practices and Principles: Approaches to Ethical and Legal Judgment

by Mark Tunick

Overview

A Japanese woman living in California attempts parent-child suicide, an ancient Japanese custom called "oyako-shinju," in order to rid herself of shame upon learning that her husband has a mistress. She survives, but her two children are drowned in the attempt. Since her attempt was made in accordance with the standards of Japanese culture, should she be tried by the standards and laws of the United States? Are there universally valid moral principles that dictate what is right? Or are moral judgments culturally relative, ultimately dictated by conventions and practices that vary among societies? In Practices and Principles, Mark Tunick takes up the debate between universalists and relativists, and, in political philosophy, between communitarians and liberals, each of which has roots in an earlier debate between Kant and Hegel.


Tunick focuses on three case studies: promises, contract law, and the Fourth Amendment issue of privacy. In his analysis, he rejects both uncritical deference to social practice and draconian adherence to principles when making legal and ethical judgments. He argues that we do not always need to choose between abstract principles and social practices. Sometimes we appeal to both; sometimes we need to appeal to shared social norms; and sometimes, where there is no ethical community, we can appeal only to principles. Ultimately, Tunick rejects simplified arguments that force us to choose between either practices or principles, universalism or relativism, and liberalism or communitarianism.

Product Details

ISBN-13:	9780691227436
Publisher:	Princeton University Press
Publication date:	03/09/2021
Sold by:	Barnes & Noble
Format:	eBook
Pages:	256
File size:	940 KB

About the Author

Mark Tunick is Associate Professor of Political Science, The Honors College, at Florida Atlantic University. He is the author of Punishment: Theory and Practice and Hegel's Political Philosophy: Interpreting the Practice of Legal Punishment (Princeton).

Table of Contents

Ch. 1 Introduction

Ch. 2 Kant versus Hegel

Kant's Principle Conception

Hegel's Criticism of Kant's Principle Conception

Hegel on the Importance of Social Practice

Implications

Kant or Hegel: Principles without Practice or Principles Immanent in Practice?

Ch. 3 Promises

The Problem

Scanlon's Example

Principle Conceptions of Promising

Scanlon's Principles M and F

Conclusion: Practices and the Obligation to Keep Promises

Ch. 4 Contracts

Problems in Contract Law

Principles

Practices and Principles in Contract Law

Ch. 5 Privacy

The Problem

Determining the Reasonableness of Expectations of Privacy: Practice or Principles?

Incorporating Practice and Principle in Fourth Amendment Reasonable-Expectation-of-Privacy Analysis: The Mischance Principle Applied

Ch. 6 Practices, Principles, and Contemporary Political Theory

The Role of Social Practice in Ethical and Legal Judging

Contemporary Political Theorists on the Role of Social Practice

Practices and Principles

Practices, Principles, and the Liberal-Communication Debate

Practices, Principles, and the Relativism-Universalism Debate

Bibliography

Index of Cases

General Index

Editorial Reviews

Tunick, well known as a specialist on Hegel (Hegel's Political Philosophy, Princeton Univ., 1992), puts his expertise to good use in this work, addressing the question of how such social practices should count in ethical and legal questions. In response, he usefully contrasts the views of Kant, who stressed universal principles, with Hegel, for whom local circumstance stood foremost. Tunick by no means confines his interest in the topic to historical matters. He discusses the role of social practice in issues of promises, contract law, and privacy. The author's own position avoids exclusive stress on either principles or practice. His striking and original discussion merits wide attention.David Gordon, Bowling Green State Univ., OH

Library Journal

"Tunick . . . does a fine job of arguing against those approaches that reify absolute principles and those that rely solely on the justifying power of agreed-upon social practice. . . . The truth, asserts Tunick, lies somewhere in between, in the unresolvable tension that arises when practice and principle collide and transform each other. . . . [Tunick's] writing style is clear and relatively jargon-free. . . . Recommended."

Choice

"Practical and beneficial as a reference for research. As a whole, anyone with strong affection for the area of philosophy will likely enjoy the style and substance offered in Practices and Principles."

New York Law Journal

"The central question in this lucid and thoughtful book is, what force do the existence of practices, customs, and traditions have when we make legal and ethical judgments? Tunick's answer is that as much as we need principles to criticize our practices, practices still matter for legal and ethical judgement."

Ethics

"Practical and beneficial as a reference for research. As a whole, anyone with strong affection for the area of philosophy will likely enjoy the style and substance offered in Practices and Principles."—New York Law Journal

"Tunick . . . does a fine job of arguing against those approaches that reify absolute principles and those that rely solely on the justifying power of agreed-upon social practice. . . . The truth, asserts Tunick, lies somewhere in between, in the unresolvable tension that arises when practice and principle collide and transform each other. . . . [Tunick's] writing style is clear and relatively jargon-free. . . . Recommended."—Choice

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