Michael Da Da Silva

A claimed epistemic condition on legitimate authority appears in numerous academic debates. Yet the condition admits multiple specifications and is asked to serve numerous roles in each debate. Work in the democratic legitimacy and authority allocation debates in which the condition is most often invoked rarely intersects. This article argues that a plausible account of the epistemic condition should generalize across both debates. It then offers desiderata for any account that can so generalize and a substantive proposal that can meet the desiderata. On the proposed account, the epistemic condition is a threshold condition on which legitimate authorities must be suitably competent in the sense of reliably reaching correct decisions better than individuals would on their own. Epistemic considerations also provide guidance above the threshold. Yet they remain non-dispositive for most authority questions. These results minimally demonstrate that attending to authority allocation questions provides additional support for existing views from the democratic legitimacy debate defending a threshold condition and hybrid accounts of legitimate authority on which epistemic and non-epistemic conditions apply. However, they also challenge common assumptions in the democratic legitimacy debate and provide support for an approach many in that debate quickly dismiss.

Federalism can be characterized as a mode of governance in which final decision-making powers are ‘divided’ across different levels (e.g., federal, provincial, and municipal). The relationship between federalism, so-defined, and judicial review is philosophically and practically important. It is also, with some notable exceptions, surprisingly under-theorized. Many federalism scholars assume that federalism requires judicial review without exploring how other mechanisms could play courts’ intended roles. Many judicial review scholars assume that the justification for judicial review depends (at least primarily) on rights-based considerations. This work takes a different tack, offering positive reasons for judicial review in federal ‘division of powers’ cases largely independent of rights review. It argues that the basic commitments of and the incentive structure inherent in federal governance require a third party to play conflict resolution and border policing roles. It further argues that proposed non-judicial mechanisms are unlikely to fill those necessary roles. Well-designed, independent courts can do so, creating a strong defeasible case for judicial review in federal countries that is presently undefeated. This best case for judicial review’s fundamental concern with maintaining a division of powers should, however, lead courts in multiple paradigmatically federal countries to take different approaches to interpretation.

The claim-right model of rights contends that Hohfeldian ‘claim-rights’ defined in terms of a constitutive correlativity with directed duties mark a distinctive phenomenon encompassing paradigmatic moral rights. Recent criticisms suggest this traditional model faces a dilemma: any plausible specification (i) is extensionally or explanatorily inadequate or (ii) cannot serve a distinct normative purpose intended by those invoking rights. This work defends the claim-right model against this line of critique. It demonstrates that proper understandings of the extensional/explanatory adequacy criteria and the intended taxonomic role claim-rights are meant to fulfil dissolve the apparent dilemma and support the model.

Responsibility gaps arise when there is a mismatch between the amount of responsibility that can be attributed to any person or collection of persons on leading accounts of moral responsibility and the amount that robust intuitions suggest should be allocated to someone in a case. Claimed responsibility gaps arise in numerous philosophical debates, including those concerning government, corporate, and other forms of group agency and new technologies and those concerning theoretical issues in the philosophy of responsibility. This work is an opinionated introduction to and overview of recent work on responsibility gaps. It outlines and evaluates paradigmatic responsibility gap cases and ways of understanding the phenomenon as well as the existence conditions and moral status of and possible responses to responsibility gaps. It thereby contributes to ongoing work in the philosophy of responsibility and several applied domains.

This work offers a new democratic case for federalism, understood as a form of governance in which multiple entities in a country possess final decision-making authority (viz., can make decisions free from others substituting their decisions, issuing fines, etc.) over at least one subject (e.g., immigration, defense). It argues that leading solutions to the democratic boundary problem provide overlapping arguments for federalism. The underlying logic and many details of the most commonly cited solutions focused on those relevantly affected by and subject to decisions each support three distinct arguments (focused on voteshares, other forms of democratic influence, and persistent minorities) for multiple demoi possessing authority in a polity. Federalism is the best available method for recognizing the distinct demoi. This not only supports federal governance as opposed to unitary governance and subsidiarity. It also suggests that democracy and federalism are importantly related and have several implications for institutional design.

Many believe the existence of a moral right to some good should lead to recognition of a corresponding legal right to that good. If, for instance, there is a moral right to healthcare, it is natural to believe countries should recognize a legal right to healthcare. This article demonstrates that justifying legal rights to healthcare is more difficult than many assume. The existence of a moral right is insufficient to justify recognition of a corresponding justiciable constitutional right. Further conditions on when it is appropriate to recognize constitutional rights are rarely satisfied in the healthcare case. And focusing on aspirational or statutory rights presents costs for those seeking to justify legal rights on the basis of corresponding moral ones while maintaining empirical challenges for justifying constitutional rights. This suggests movement from a moral right to a corresponding legal one is far from straightforward and justifies examining alternative means of realizing moral socio‐economic rights such as the proposed moral right to healthcare.

Potential conflicts between the roles of physicians and researchers have been described at the theoretical level in the bioethics literature (Czoli, et al., 2011). Physicians and researchers are generally in mutually distinct roles, responsible for patients and participants respectively. With increasing emphasis on integration of research into clinical settings, however, the role divide is sometimes unclear. Consequently, physician–researchers must consider and negotiate salient ethical differences between clinical– and research–based obligations (Miller et al, 1998). This paper explores the subjective experiences and perspectives of 30 physician–researchers working in three Canadian paediatric settings. Drawing on qualitative interviews, it identifies ethical challenges and strategies used by physician–researchers in managing dual roles. It considers whether competing obligations could have both positive and adverse consequences for both physician–researchers and patients. Finally, we discuss how empirical work, which explores the perspectives of those engaged in research and clinical practice, can lead the way to understanding and promoting best practice.

The contention that medical artificial intelligence (AI) should be ‘explainable’ is widespread in contemporary philosophy and in legal and best practice documents. Yet critics argue that ‘explainability’ is not a stable concept; non-explainable AI is often more accurate; mechanisms intended to improve explainability do not improve understanding and introduce new epistemic concerns; and explainability requirements are ad hoc where human medical decision-making is often opaque. A recent ‘political response’ to these issues contends that AI used in high-stakes scenarios, including medical AI, must be explainable to meet basic standards of legitimacy: People are owed reasons for decisions that impact their vital interests, and this requires explainable AI. This article demonstrates why the political response fails. Attending to systemic considerations, as its proponents desire, suggests that the political response is subject to the same criticisms as other arguments for explainable AI and presents new issues. It also suggests that decision-making about non-explainable medical AI can meet public reason standards. The most plausible version of the response amounts to a simple claim that public reason demands reasons why AI is permitted. But that does not actually support explainable AI or respond to criticisms of strong requirements for explainable medical AI.

Every country must allocate final decision-making authority over different issues/subjects within its boundaries. Historically, many scholars working on this topic implicitly assumed that identifying the features providing entities with justified claims for authority and the entities possessing those features would also identify which groups should have which powers (or vice versa). However, many candidate allocative principles select multiple entities as candidates for some sub-state authority and yet fail to explain which powers each should possess. Further work must explain which groups should possess which powers when and what to do when two groups can make equally-valid authority claims using the same principle. Subsidiarity, the principle under which authority should presumptively belong to the entity representing those ‘most affected’ by its exercise and capable of addressing underlying problems, is one of the few principles focused on identifying which groups should have which powers. Unfortunately, subsidiarity alone does not provide guidance on many issues/subjects. Useful subsidiarity-related guidance relies on balancing underlying justificatory interests, which do the real allocative work. Another allocative principle remains necessary. A deflationary account of subsidiarity’s allocative potential nonetheless provides insights into how to articulate a new principle and accounts of subsidiarity that can fulfill other moral roles.

Christian List argues that responsibility gaps created by viewing artificial intelligence as intentional agents are problematic enough that regulators should only permit the use of autonomous AI in high-stakes settings where AI is designed to be moral or a liability transfer agreement will fill any gaps. This work challenges List’s proposed condition. A requirement for “moral” AI is too onerous given technical challenges and other ways to check AI quality. Moreover, transfer agreements only plausibly fill responsibility gaps by applying independently justified group responsibility attribution norms such that AI does not raise unique regulatory norms.

Federalism has important implications for basic philosophical concepts, including authority and distributive justice. Philosophers played key roles in the development of federalism as a(n at least purportedly) normative doctrine. However, federalism remains peripheral in contemporary political philosophy, leading to periodic calls for renewed scrutiny. This article identifies questions that any complete philosophical account of federalism should aim to answer and provides an overview of some dominant responses to those questions offered in contemporary work in law, political science, and the nascent contemporary philosophical work on the doctrine. It first explains why federalism should be considered philosophically important. It then explores issues about the meaning and purpose, paradigm cases, institutional implications, and subjects/objects of federalism. It finally highlights the need to explain federalism's relationships to adjacent concepts, like democracy, subsidiarity, and self‐determination, and possible links between them.

Ernest Weinrib claims that the purpose of private law is to correct injustices between private parties and the use of private laws for consequentialist ends is a distortion. Weinrib’s primary argument highlights the distinctiveness of corrective justice and distributive justice. Weinrib claims to have an Aristotelian proof for their distinctiveness, but formalisation of and commentary on this aspect of his argument are lacking. This piece fills that gap in the literature. It provides purposely and strategically simple formal models of the structure of corrective and distributive justice, and demonstrates that they are not reducible to one another and cannot be placed under a larger, non-trivial mathematical formula that generalises for even a large number of private law cases.

Individual rights to healthcare (RTHCs) are increasingly common in law. Yet even plausible theoretical defences thereof raise a classic problem in the philosophy of rights: How do individual rights relate to ‘collective’ rights within the same domain? Collective rights are common in international law and in the domestic laws of states that recognize RTHCs. These collective rights often include health‐related components. There are at least prima facie plausible reasons to think that such collective ‘health rights’ should exist. A complete account of health rights should thus explain how individual and collective health rights claims relate to one another and what one should do in cases where the claims conflict. This work contributes to our understanding of health rights by analysing the relationship between individual RTHCs and a plausible candidate collective health right, namely a sub‐state national right to control healthcare law and policy. It argues that concerns about rights conflicts in this context make sense, but genuine conflicts between individual health rights and national control over healthcare are rare. The strongest cases for sub‐state national ‘self‐determination’ rights do not implicate healthcare, or tend not to provide reasons to override any individual RTHCs. Conflicts are possible in rare cases and may even favour fulfilling the collective rights claims. Yet individual RTHCs remain important even in those cases. Individual rights remain useful measures for evaluating the exercise of collective rights: exercises that violate (or even fail to fulfil) individual health rights are worse for so doing.

Fulfilling one’s all-things-considered duty sometimes requires violating pro tanto duties. According to W. D. Ross and Robert Nozick, the pro tanto-duty-violating, wrong-making features of acts in these cases can leave ‘traces’ of wrongfulness that require specific responses: feeling compunction for the wrongfulness and/or providing compensation to the negatively affected person. Failure to respond in the appropriate way to lingering wrong-making features can itself be wrongful. Unfortunately, criteria for determining when traces remain are largely lacking. In this piece, I argue for three necessary conditions for the existence of a trace: ‘The Non-Consequentialist Duty Condition,’ ‘The Identity Condition,’ and ‘The Ratio Condition.’

COVID-19-related controversies concerning the allocation of scarce resources, travel restrictions, and physical distancing norms each raise a foundational question: How should authority, and thus responsibility, over healthcare and public health law and policy be allocated? Each controversy raises principles that support claims by traditional wielders of authority in “federal” countries, like federal and state governments, and less traditional entities, like cities and sub-state nations. No existing principle divides “healthcare and public law and policy” into units that can be allocated in intuitively compelling ways. This leads to puzzles concerning (a) the principles for justifiably allocating “powers” in these domains and (b) whether and how they change during “emergencies.” This work motivates the puzzles, explains why resolving them should be part of long-term responses to COVID-19, and outlines some initial COVID-19-related findings that shed light on justifiable authority allocation, emergencies, emergency powers, and the relationships between them.

Research on how to understand legally recognized socio-economic rights produced many insights into the nature of rights. Legally recognized rights to health and, by extension, health care could contribute to health justice. Yet a tension remains between widespread international and transnational constitutional recognition of rights to health and health care and compelling normative conditions for rights recognition from both philosophers seeking to identify the scope and structure of the rights and policy scholars seeking to understand how to practically realize such rights. This work identifies an overlooked source of these difficulties: the right to health care and other health rights are necessarily ‘complex’, consisting of multiple related, but irreducible, morally valuable components. ‘Complex rights’ do not fit the traditional structure of human rights, so legal recognition of same can appear confused from a philosophical perspective, but there is ample reason to admit complex rights into our moral ontology and doing so can help bridge the divide between global health practices and ongoing work in the philosophy of rights and public policy. Recognition of complex rights admittedly shifts the burden for justifying health rights, but it does so in a way that is instructive for general philosophical analysis of socio-economic rights.