No normative free lunch: relevance and the autonomy of the normative domain

The autonomy thesis is the claim that one cannot get a normative statement from purely descriptive statements. But despite its intuitive appeal a precise formulation of the thesis has remained elusive. In a recent paper, Maguire (2015) makes the promising suggestion that the thesis should be understood in terms of ground. But Maguire’s formulation, I argue, is based on controversial taxonomic assumptions that make the autonomy thesis into a non-substantive claim. I develop an alternative ground-based formulation of the autonomy thesis that appeals to the notion of normative relevance, which is in turn understood using the tools of truthmaker semantics. This formulation of the autonomy thesis avoids well-known counterexamples to other formulations and has significant advantages over Maguire’s formulation.

Strategies for the reinterpretation of normative texts within the Hebrew Bible

Contemporary constitutional theory remains divided between competing approaches to the interpretation of normative texts: between originalism or original intent, on the one hand, and living constitution approaches, on the other. The purpose of this article is to complicate that problematic dichotomy by showing how cultures having a tradition of prestigious or authoritative texts addressed the problem of literary and legal innovation in antiquity. The study begins with cuneiform law from Mesopotamia and the Hittite Empire, and then shows how ancient Israel’s development of the idea of divine revelation of law creates a cluster of constraints that would be expected to impede legal revision or amendment. The well-known Decalogue, or Ten Commandments, provides a valuable test-case, with its normative statement that God punishes sinners across generations (vicariously extending the punishment due them to three or four generations of their progeny). A series of inner-biblical and post-biblical responses to that rule demonstrates, however, that later writers were able to criticize, challenge, reject, and replace it with the alternative notion of individual accountability. The article will provide a series of close readings of the texts involved, drawing attention to their legal language and hermeneutical strategies. The conclusions stress the remarkable freedom to modify ostensibly normative statements available to ancient judicial interpreters, despite the expected constraints of a formative religious canon attributed to divine revelation.

Hegel’s Political Epistemology

This article proposes an interpretation of Hegel’s famous maxim in the Preface of the Grundlinien: ‘What is rational is actual, and what is actual is rational’, not (as usual) as a politically conservative normative statement, but as an epistemological statement concerning the way in which philosophical discourse relates to reality. My aim is to take seriously Hegel’s claim that the purpose of philosophy is not to prescribe to the social world what it has to be but to define the mode through which it may be known.

Rabbinic Narrative: Documentary Perspectives on the Authentic Narrative in Lamentations Rabbah

Classification of its narratives reveals Lamentations Rabbah’s preferences as to narrative types and their functions. On the foundation of this knowledge we can correlate Rabbinic narratives with the boundaries defined by particular documents and, ultimately, are able, on the foundations of literary evidence, to describe the Rabbinic structure and system. Understanding the way the documentary evidence took shape and how it accomplished its compilers’ goals is required for that description. If we do not know whether or how narratives fit into the canonical constructions of Rabbinic Judaism in its formative age and normative statement, we cannot account for important data of that Judaism. The result of this study is to show that narratives, no less than expository, exegetical, and analytical writing, form part of the documentary self-definition of the Rabbinic canonical writings. Through the study of Lamentations Rabbah (referred to also as Lamentations Rabbati) in particular, it advances our ability to evaluate how a rhetorical form as represented in one document compares or contrasts with that form as it is used in other discrete rabbinic texts.

CMS Payments Necessary to Support HMO Participation in Medicare Managed Care

In recent years, many health maintenance organizations (HMOs)have exited the market for Medicare managed care; since 1998, the number of participating plans has fallen from 346 to 174. As a result of this reduced participation by HMOs, hundreds of thousands of Medicare beneficiaries have been involuntarily disenrolled from the program at the end of each year from 1998 to 2001.This paper estimates the Centers for Medicare and Medicaid Services (CMS) capitation payments that are necessary to support the participation of various numbers of HMOs in Medicare managed care per county market. This paper does not make a normative statement about how many HMOs should be supported in this program; rather, it makes a positive statement about the levels of payment necessary to support various numbers of HMOs.The identification strategy is to observe how the number of participating HMOs varies over counties and time in response to CMS payment, while controlling for estimated costs. This paper studies the period 1993-2001 and focuses in particular on the variation in payment, independent of costs, that occurred as a result of the Balanced Budget Act of 1997, which dramatically changed the way that HMOs are paid in this program. In light of the fact that it may not be cost-effective for CMS to support HMO participation in relatively rural or unpopulated counties, the sample used in this paper is limited to the 60 percent of U.S. counties with the largest populations of Medicare beneficiaries.The ordered probit results presented in this paper indicate that, to support one Medicare HMO in 2001 in half of the counties in the sample, CMS would have to pay $682.08 per average enrollee per month in the marginal county. To support one Medicare HMO in 2001 in every county in the sample, CMS would need to pay $1,008.25 per enrollee per month in the maximum-payment county. For comparison, the maximum monthly payment paid by CMS to any county in 2001 was $833.55.This paper finds that 79.3 percent of counties in the sample received a CMS payment in 2001 that was less than what was necessary to support a single HMO in Medicare managed care. Compared to those counties that received a payment exceeding the estimated threshold for HMO participation, these counties are, on average, more rural and less populated, with citizens who are less wealthy and less educated. The relative disadvantage of rural and unpopulated counties persists three years after the Balanced Budget Act of 1997, designed in part to eliminate such disparities, took effect.

Wealth and Poverty in the Early Church

The early church did not provide us with any normative statement on wealth and poverty, but it did give us clear witness to the hazards of wealth and to the abiding necessity of alms for the poor.

The Secret War in Central America and the Future of World Order

The core principle of modern world order is that aggressive attack is prohibited in international relations and that necessary and proportional force may be used in response to such an attack. This dual principle is embodied in Articles 2(4) and 51 of the United Nations Charter, Articles 21 and 22 of the revised Charter of the Organization of American States (OAS) and virtually every modern normative statement about the use of force in international relations. Indeed, it is the most important principle to emerge in more than two thousand years of human thought about the prevention of war. In the contemporary world of conflicting ideologies and nuclear threat, no task is more important for international lawyers and statesmen than to maintain the integrity of this principle in both its critical—and reciprocal—dimensions: prohibition of aggression and maintenance of the right of effective defense.

Lehmann's Contextual Ethics and the Problem of Truth-Telling

“Ethics cannot be born out of any concrete ‘whole’ without the moral requirement or claim of ‘wholeness.’ Nor, for that matter, does the indicative theological statement, ‘God forgives,’ imply the injunction, ‘Forgive one another,’ without the intervention of a normative statement in theological ethics, ‘Men should deal with one another as God deals with them.’ Neither in a secular context nor in a Christian context is it possible to formulate the ethical question as ‘What am I to do?’ Any ethics, in any context, must ask, ‘What ought I to do?’”

Pre-Maccabean Documents in the Passover Haggadah

In an article published in the Harvard Theological Review, XXXI, pp. 291–317, I endeavored to show that the Midrash based on Deuteronomy 26. 5–8, which forms the core of the Passover Haggadah (hereinafter M) was composed in pre-Maccabean times, probably in the third century B.C., when Palestine was ruled by the Ptolemies. I propose in the present article to consider three other parts of the Haggadah, which I believe are likewise pre-Maccabean. They are (1) the opening passage (hereinafter A); (2) the alternative opening (hereinafter B) prescribed by Rab in the third century of the Christian Era, and included in extant rituals after A; and (3) the poem Dayyenu, “it would have been ample for us” (hereinafter D). Evidence will be presented associating B and D particularly with the high priesthood of Jason, the son of Simeon the Righteous, and high priest in Jerusalem from 175 to 172 B.C. In connection with the discussion of these passages, it will be necessary to study also (4) the Baraita of the Four Sons (hereinafter E), which has also been incorporated into the Passover Haggadah. (A baraita is a formulated, normative statement, originating with the earlier Rabbinic scholars, i.e. those of the Mishnaic or tannaitic period, ending about the year 220 of the Christian Era; but not included in the Mishna itself.)