In this paper, I argue that a definition of paternalism must meet certain methodological constraints. Given the failings of descriptivist and normatively charged definitions of paternalism, I argue that we have good reason to pursue a normatively neutral definition. Archard's 1990 definition is one such account. It is for this reason that I return to Archard's account with a critical eye. I argue that Archard's account is extensionally inadequate, failing to capture some cases which are clear instances of paternalism. I (...) refine each of his three conditions, ultimately providing an improved definition of paternalistic interference. This revised definition meets specific methodological constraints, offering a definition that is both neutral between anti- and pro-paternalistic intuitions, but that also explains why paternalism is normatively significant. Specifically, this definition captures the conflict between interfering with an individual's choices and treating the individual benevolently, without making paternalism permissible or impermissible by definition. (shrink)

Legal restrictions of the right to self-determination increasingly pretend to be compatible with the liberal concept of autonomy: they act upon a ‘soft’ or autonomy-orientated paternalistic rationale. Conventional liberal critique of paternalism turns out to be insensitive to the intricate normative problems following from ‘soft’ or ‘libertarian’ paternalism. In fact, these autonomy-oriented forms of paternalism could actually be even more problematic and may infringe liberty rights even more intensely than hard paternalistic regulation. This paper contributes to the systematic differentiation of (...) soft and hard paternalism by discussing the (legal) concept of autonomy and elaborates the moral and legal limits of autonomy-orientated paternalism. (shrink)

In the luck egalitarian literature, one influential formulation of luck egalitarianism does not specify whether equalities that do not reflect people’s equivalent exercises of responsibility are bad with regard to inequality. This equivocation gives rise to two competing versions of luck egalitarianism: asymmetrical and symmetrical luck egalitarianism. According to the former, while inequalities due to luck are unjust, equalities due to luck are not necessarily so. The latter view, by contrast, affirms the undesirability of equalities as well as inequalities insofar (...) as they are due to luck. The symmetrical view, we argue, is by far the more compelling, both by internal luck egalitarian standards and in light of the external rightist emphasis on choice and responsibility to which luck egalitarianism may partly be seen as a response. Our main case for the symmetrical view is that when some people, against a background of equal opportunities, do not exercise their responsibility to the same degree as others, they cannot justifiably call for equalizing measures to be put in place. Indeed, such measures would be positively unfair. The symmetrical view, accordingly, rejects compensation in such cases, whereas the asymmetrical view, implausibly, enjoins it. We also examine two objections to this argument. First, that this view fails to qualify as genuinely egalitarian, instead collapsing the notion of equality into the notion of desert. Second, that the opposing asymmetrical view, in contrast to the symmetrical view, can draw support from its compatibility with sufficientarian concerns. Both objections are rebutted. We conclude that luck egalitarians are best served by endorsing the symmetrical, luck-neutralizing stance. (shrink)

Explains the concept and conceptions of public justification found in the philosophy and political theory literatures.

Proponents of the legalization of assisted suicide often appeal to our supposed right to "die with dignity" to defend their case. I examine and assess different notions of "dignity" that are operating in many arguments for the legalization of assisted suicide, and I find them all to be deficient. I then consider an alternative conception of dignity that is based on Aristotle's conception of the conditions on the best life. I conclude that, while such a conception of dignity fits best (...) with our intuitions about the conditions under which a life has dignity, it supports the legalization of assisted suicide only under very limited circumstances. (shrink)

In this paper, I argue for two theses. First, if Christianity is true, then morality should depend on the metaphysics of the afterlife. Second, if Christianity is true, then contemporary moral theory is mistaken. The argument for the first thesis rests on two premises. If rightness depends on an act’s effects on an individual, then—at least in part—it depends on the long-term effects on him. If rightness depends—at least in part—on the long-term effects on an individual, then it depends on (...) the metaphysics of the afterlife. The argument for the second thesis rests on how heaven or hell swamp other considerations. By changing assumptions about the nature of heaven or hell, who goes there, and standard mathematics, we end up with different ethical theories. Some of these assumptions conflict with contemporary moral theory regarding killing, letting die, and saving. (shrink)

My aim in this paper is to move toward a relational moral theory of harm through examination of a common yet underexplored form of child maltreatment: childhood psychological abuse. I draw on relational theory to consider agential, intrapersonal, and interpersonal ways in which relational harms develop and evolve both in intimate relationships and in conditions of oppression. I set forth three distinctive yet interconnected forms of relational harm that childhood psychological abuse causes: harm to the relational agency of individuals, harm (...) to the relationships individuals hold with themselves, especially with regard to how they respect, know, and trust themselves, and harm to interpersonal relationships of both a direct and indirect nature in present and future timeframes. I close by noting that while relationships can be the site of human brutality that destroys the relational self, paradoxically and promisingly, they also can be a primary means of the relational reconstitution of the self. Ultimately, relational analyses of the harms of childhood psychological abuse reveal several key elements of a relational theory of harm and demonstrate the significance of relational harms for moral philosophy. (shrink)

Is prostitution immoral? In this book, Rob Lovering argues that it is not. Offering a careful and thorough critique of the many―twenty, to be exact―arguments for prostitution's immorality, Lovering leaves no claim unchallenged. Drawing on the relevant literature along with his own creative thinking, Lovering offers a clear and reasoned moral defense of the world's oldest profession. Lovering demonstrates convincingly, on both consequentialist and nonconsequentialist grounds, that there is nothing immoral about prostitution between consenting adults. The legal implications of this (...) view are also brought to bear on the current discourse surrounding this controversial topic. (shrink)

Does the content of a physically dangerous job affect the moral permissibility of hiring for that job? To what extent may employers consider costs in choosing workplace safety measures? Drawing on Kantian ethical theory, this article defends two strong ethical standards of workplace safety. First, the content of a hazardous job does indeed affect the moral permissibility of offering it. Unless employees need hazard pay to meet basic needs, it is permissible to offer a dangerous job only if prospective employees (...) have a reason other than hazard pay to choose this job instead of safer alternatives. Second, employers typically cannot justify omitting expensive safety measures by paying employees more, even if employees prefer higher pay to greater safety. Employers offering dangerous jobs must meet these two standards to avoid treating their employees merely as means. (shrink)

The current World Anti-doping Code can be characterised as a tough approach to doping. In this paper we investigate how the World Anti-Doping Agency justifies this tough approach. To this end, WADA advances two justificatory arguments. It maintains, first, that protection of the spirit of sport warrants tough measures and, second, that athletes have voluntarily consented to the Code. We argue that in the way they are presented by WADA, neither of these arguments can withstand scrutiny. In the second part (...) of the paper, we go on to show that these arguments are in fact ideological in nature. The specific aim of these arguments is not to be correct, but rather to distort social reality, because in this way they can be used to ward off any critical discussion of the Code. We conclude that WADA’s interest is to create a façade of justice, not in serving justice itself. (shrink)

A governing principle in medical ethics is respect for patient autonomy. This principle is commonly drawn upon in order to argue for the permissibility of assisted dying. In this paper I explore the proper role that respect for patient autonomy should play in this context. I argue that the role of autonomy is not to identify a patient’s best interests, but instead to act as a side-constraint on action. The surprising conclusion of the paper is that whether or not it (...) is in the best interests for the patient to die is a morally objective matter. This allows for the possibility that it can be in the best interests of the patient to die even if she autonomously considers it to be in her best interest to continue living. I argue that concerns about ‘mandatory’ euthanasia can be met when patient autonomy is respected as a side-constraint on action. Ultimately, this means that assisted dying is permissible, not because the autonomous patient views her suffering to be unbearable, but because it is in her objective best interests and she permitted it via her consent. (shrink)

In this chapter, I consider the idea that physician-assisted death might come into question in the cases of psychiatric patients who are incapable of making autonomous choices about ending their lives. I maintain that the main arguments for physician-assisted death found in recent medical ethical literature support physician-assisted death in some of those cases. After assessing several possible criticisms of what I have argued, I conclude that the idea that physicianassisted death can be acceptable in some cases of psychiatric patients (...) who lack autonomy ought to be taken into account in assessing the moral and legal acceptability of physician-assisted death. (shrink)

This article asks whether states have a right to close their borders because of their right to self-determination, as proposed recently by Christopher Wellman, Michael Walzer, and others. It asks the fundamental question whether self-determination can, in even its most unrestricted form, support the exclusion of immigrants. I argue that the answer is no. To show this, I construct three different ways in which one might use the idea of self-determination to justify immigration restrictions and show that each of these (...) arguments fails. My conclusion is that the nature and value of self-determination have to do with the conditions of genuine self-government, not membership of political society. Consequently, the demand for open borders is fully consistent with respect to self-determination. (shrink)

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment have conducted visits and written reports criticising the surgical castration of sex offenders in the Czech Republic and Germany. They claim that surgical castration is degrading treatment and have called for an immediate end to this practice. The Czech and German governments have published rebuttals of these criticisms. The rebuttals cite evidence about clinical effectiveness and point out this is an intervention that must be requested (...) by the sex offender and cannot occur without informed consent. This article considers a number of relevant arguments that are not discussed in these reports but which are central to how we might assess this practice. First, the article discusses the possible ways in which sex offenders could be coerced into castration and whether this is a decisive moral problem. Then, it considers a number of issues relevant to determining whether sex offenders are harmed by physical castration. The article concludes by arguing that sex offenders should not be coerced into castration, be that via threats or offers, but that there is no reason to think that this is occurring in the Czech Republic or Germany. In some cases, castration might be useful for reconfiguring a life that has gone badly awry and where there is no coercion, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment are mistaken about this being degrading treatment. (shrink)

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission . When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. (...) Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons. (shrink)

Although manipulation is neither rational persuasion nor coercion, a more precise definition remains elusive. Two main accounts have been offered. One characterizes manipulation as a form of trickery. The other characterizes manipulation as a form of non-coercive pressure. Each account properly identifies only a subset of intuitively clear cases of manipulation. That is, some instances of manipulation apparently involve pressure, while others apparently involve trickery. Yet trickery and pressure seem distinct, so it is puzzling how they could be instances of (...) the same phenomenon. This puzzle can be solved once we recognize that manipulative pressure only works if the target acts akratically. This fact provides the basis for a unified account of manipulation as the attempt to get someone to make a mistake. (shrink)

It is widely assumed that the use of deception in research is always inconsistent with obtaining valid consent. In addition, guidelines and regulations permit research without valid consent only when it poses no greater than minimal risk. Current practice thus prohibits studies that use deception and pose greater than minimal risk, including studies that rely on deceptive methods to evaluate experimental treatments. To assess whether these prohibitions are justified, the present paper evaluates five arguments that might be thought to support (...) the assumption that deception is always inconsistent with valid consent. Analysis of these arguments reveals that deception is frequently, but not always, inconsistent with obtaining valid consent for research. This conclusion suggests that, in order to avoid unnecessarily blocking valuable research, current policies and practice should be revised to recognize the conditions under which the use of deception can be consistent with obtaining research participants’ valid consent. (shrink)

I defend one way of solving the Impermissibility Problem—that is, the problem that on moralized approaches to coercion, coerciveness and permissibility are mutually exclusive. This brings up intuitive difficulties for cases such as taxation, which seem to be both coercive and permissible. I gloss three popular theories of coercion—the moralized baseline, nonmoralized baseline, and enforcement approaches—and conclude that only the nonmoralized baseline approach clearly solves the problem. However, Robert Nozick’s famous “slave case” raises another serious issue for the nonmoralized baseline (...) approach. So, in order to solve both the slave case and the Impermissibility Problem, I draw on Grant Lamond’s discussion of the coerciveness of law to propose the pro tanto wrong approach. On this approach, coercion is not impermissible simpliciter, but requires some sort of special justification. The pro tanto wrong approach is moralized, but on it, moralization comes in coercion’s need for justification, not in whether it is, in fact, justified. Thus impermissibility is neither necessary nor sufficient for coerciveness, and the Impermissibility Problem is avoided. I conclude that solving the problem in this way is desirable because it preserves a core belief of liberalism: certain acts, including taxation, may be both coercive and permissible. (shrink)

Autonomy has been the central principle underpinning changes which have affected the practice of medicine in recent years. Medical education is undergoing changes as well, many of which are underpinned, at least implicitly, by increasing concern for autonomy. Some universities have embarked on graduate courses which utilize problem-based learning (PBL) techniques to teach all areas, including medical ethics. I argue that PBL is a desirable method for teaching and learning in medical ethics. It is desirable because the nature of ethical (...) enquiry is highly compatible with the learning processes which characterize PBL. But it is also desirable because it should help keep open the question of what autonomy really is, and how it should operate within the sphere of medical practice and medical education. (shrink)

The present chapter examines the philosophical problem of how it is possible, metaphysically and practically speaking, to develop a good moral character when one adheres to the view that a persisting self does not exist. It extracts answers from two thinkers who reject the concept of enduring identity, the Indian philosopher Vasubandhu (4th to 5th centuries CE) and the Western philosopher Derek Parfit (1942–2017). The first section of the chapter outlines some of Vasubandhu’s and Parfit’s shared assumptions concerning the nature (...) of the self and that of personal identity. In section 2, the focus shifts to the distinct ways in which each philosopher advances his understanding of the moral agent. Section 3 suggests that besides formulating different accounts of selfless agency, the ways in which Vasubandhu and Parfit grappled with the problem of agency reveal different approaches to addressing the question of human nature, and consequently, different ways of resolving the difficulties involved in becoming a good person. These differences become apparent in two practices that are relevant to crafting a moral character and that the two thinkers treat, moral commitment and the cultivation of virtue, which are discussed in the final part of the chapter. (shrink)

It is often claimed that managed care organizations involve physicians in conflicts of interest by creating financial incentives for physicians to refrain from ordering treatments or making referrals. Such incentives, the argument goes, force the physician to balance the patient's health interests against the MCO's interests and the physician's own financial interest. I assume, for the sake of argument, that such arrangements at least provide reason to believe that physicians in MCOs are involved in conflicts of interest. Two approaches have (...) evolved for dealing with these conflicts. On one approach, MCOs disclose the financial arrangements under which their physicians work so that patients can consent to the managed care plan and thereby to the plan's limitations. The chief proponent of this approach is Mark Hall, whose recent book Making Medical Spending Decisions applies prior consent to a variety of decisions regarding medical financing and allocation. The other approach is simply to forbid conflicts of interest through regulations. (shrink)

The popularity and profitability of American gridiron football is beyond dispute. Recent polls put football as the overwhelming favorite of people who follow at least one sport and huge revenues are reported at both the professional and the university level. We know, however, that what is the case tells us little about what ought to be the case, and it is to the latter question that this paper is directed. I offer a three-pronged attack on the ethical acceptability of American (...) football, both amateur and professional, based on harm to the players, objectification of the players, and harm to others done by the players, leading to the conclusion that the sport, as currently constituted, is morally unacceptable. (shrink)

Medical clinicians – doctors, nurses, nurse practitioners etc. – are charged to act for the good of their patients. But not all ways of acting for a patient's good are on par: some are paternalistic; others are not. What does it mean to act paternalistically, both in general and specifically in a medical context? And when, if ever, is it permissible for a clinician to act paternalistically? -/- This paper deals with the first question, with a special focus on paternalism (...) in medicine. While it is easy to give a rough characterization of paternalism (i.e. acting for another's good against that person's will), it is surprisingly difficult to provide a unified account of the myriad of actions that seem to count as paternalistic. After surveying four accounts of paternalism, I argue that two – what I call the authority and beneficence accounts – are the strongest on offer. According to the authority account, a clinician acts paternalistically when, for her patient's good, she usurps his decision-making authority. According to the beneficence account, a clinician acts paternalistically when, for her patient's good, she acts only or overrindingly out of concern for his good. I show how the difference between these accounts matters (in part) for how we should think about the nature of surrogate decision making in medicine. I argue that there are reasons – albeit hardly decisive – to prefer the beneficence account to the authority account. I conclude by considering whether attempts by clinicians to rationally persuade their patients to pursue a particular course of action should be thought of as paternalistic. (shrink)

Debates about the ethics of health care and medical research in contemporary pluralistic democracies often arise partly from competing religious and secular values. Such disagreements raise challenges of balancing claims of religious liberty with claims to equal treatment in health care. This paper proposes several mid-level principles to help in framing sound policies for resolving such disputes. We develop and illustrate these principles, exploring their application to conscientious objection by religious providers and religious institutions, accommodation of religious priorities in biomedical (...) research, and treatment of patients’ religious views in doctor–patient encounters. Given that no sound set of guiding principles yields precise solutions for every policy dispute, we explore how morally sound democracies might deliberatively resolve such policy issues, following our proposed principles. Taken together and carefully interpreted, these principles may help in guiding difficult decision making in the indefinitely large realm where government, medical providers, and patients encounter problems concerning religion and medicine. (shrink)

A dominant trend in the philosophical literature on abortion has been concerned with the question of whether the fetus has moral status and how such a status might or might not conflict with women's liberties. However, a new and powerful trend against abortion requires philosophical examination. We refer to this trend as the paternalistic argument. In a nutshell, this argument holds that, insofar as motherhood is a constitutive end of women's well-being, abortion harms women; thus, abortion is wrong and should (...) be prohibited, restricted, or avoided when possible regardless of the moral status of the fetus. In this article we undertake three tasks. First, we analyze four variations of this reasoning: what we call the Kantian PA, the Aristotelian PA, the Catholic Church PA, and the Psychological PA. Second, we show how some public policies that regulate or prohibit abortion around the world are now in fact following paternalistic justifications and imposing distinctive paternalistic restrictions ; we refer to these policies as “the new abortion laws.” Finally, we argue that both the four paternalistic arguments presented and the new abortion laws are at times ill-intentioned, comprehensive in nature and thus unsuited for guiding public policy, empirically flawed, or else unjustified. (shrink)

Criminal offenders may be offered to participate in voluntary rehabilitation programs aiming at correcting undesirable behaviour, as a condition of early release. Behavioural treatment may include direct intervention into the central nervous system (CNS). This article discusses under which circumstances voluntary rehabilitation by CNS intervention is justified. It is argued that although the context of voluntary rehabilitation is a coercive circumstance, consent may still be effective, in the sense that it can meet formal criteria for informed consent. Further, for a (...) consent to be normatively valid (“take the wronging out of the act”) under a coercive circumstance, the subject to be treated must (1) have the sovereign authority to consent, and (2) the offer-giver must be in the right normative position to make the offer. While I argue that subjects do have the sovereign authority to consent to treatment, I also argue that inappropriate offers yield invalid consents. Considerations on inappropriate offers should therefore inform which kinds of CNS intervention-based rehabilitation schemes the state may propose as part of the criminal justice system. Yet as I conclude in this paper, while there are some intrinsic constraints on voluntary rehabilitation programs, the main constraints on voluntary rehabilitation are likely to be contingent overriders. However, CNS intervention is not ruled out as such in the context of voluntary rehabilitation. (shrink)

Do privacy rights restrict what is permissible to infer about others based on statistical evidence? This paper replies affirmatively by defending the following symmetry: there is not necessarily a morally relevant difference between directly appropriating people’s private information—say, by using an X-ray device on their private safes—and using predictive technologies to infer the same content, at least in cases where the evidence has a roughly similar probative value. This conclusion is of theoretical interest because a comprehensive justification of the thought (...) that statistical inferences can violate privacy rights is lacking in the current literature. Secondly, the conclusion is of practical interest due to the need for moral assessment of emerging predictive algorithms. (shrink)

On the standard view we assess a person’s competence by considering her relevant abilities without reference to the actual decision she is about to make. If she is deemed to satisfy certain threshold conditions of competence, it is still an open question whether her decision could ever be overruled on account of its harmful consequences for her (‘hard paternalism’). In practice, however, one normally uses a variable, risk dependent conception of competence, which really means that in considering whether or not (...) to respect a person’s decision-making authority we weigh her decision on several relevant dimensions at the same time: its harmful consequences, its importance in terms of the person’s own relevant values, the infringement of her autonomy involved in overruling it, and her decision-making abilities. I argue that we should openly recognize the multi-dimensional nature of this judgment. This implies rejecting both the threshold conception of competence and the categorical distinction between hard and soft paternalism. (shrink)

Should the assessment of decision‐making capacity (DMC) be risk sensitive, that is, should the threshold for DMC vary with risk? The debate over this question is now nearly five decades old. To many, the idea that DMC assessments should be risk sensitive is intuitive and commonsense. To others, the idea is paternalistic or incoherent, or both; they argue that the riskiness of a given decision should increase the epistemic scrutiny in the evaluation of DMC, not increase the threshold for DMC. (...) We respond to the critics’ main concerns by providing a comprehensive account of how risk‐sensitive DMC is coherent, avoids paternalism, and best fulfills the epistemic goal of DMC evaluations. (shrink)

According to Pickering, Newton-Howes, and Young, the harmfulness of decisions does, and should, factor into determining patients' decisional competence. As they claim, decision-making proces...

Whatever else liberalism involves, it involves the idea that it is objectionable, and often wrong, for the state, or anyone else, to intervene, in certain ways, in certain choices. This article aims to evaluate different possible sources of support for this core liberal idea. The result is a pluralistic view. It defends, but also stresses the limits of, some familiar elements: that some illiberal interventions impair valuable activities and that some violate rights against certain kinds of invasion. More speculatively, it (...) points to two further sources of support for liberalism, each of which represents a certain kind of social standing: a self-sovereignty compromised simply by being subject to certain kinds of commands and a relational equality compromised by the condemnation of choices with which one’s group is identified. (shrink)

Bioethicists tend to focus on the individual as the relevant moral subject. Yet, in highly complex and socially differentiated healthcare systems a number of social groups, each committed to a common cause, are involved in medical decisions and sometimes even try to influence bioethical discourses according to their own agenda. We argue that the significance of these collective actors is unjustifiably neglected in bioethics. The growing influence of collective actors in the fields of biopolitics and bioethics leads us to pursue (...) the question as to how collective moral claims can be characterized and justified. We pay particular attention to elaborating the circumstances under which collective actors can claim ‘collective agency.’ Specifically, we develop four normative-practical criteria for collective agency in order to determine the conditions that must be given to reasonably speak of ‘collective autonomy’. For this purpose, we analyze patient organizations and families, which represent two quite different kinds of groups and can both be conceived as collective actors of high relevance for bioethical practice. Finally, we discuss some practical implications and explain why the existence of a shared practice of trust is of immediate normative relevance in this respect. (shrink)

Sex work’s governance throughout the Commonwealth has historically been animated by the objective of rendering the sale of sex, and those who engage in such transactions, invisible. To achieve this end, lawmakers have characterized public, viewable sex work as a nuisance meriting criminalization. Although prohibition results in unequivocal perils for sex workers, governance strategies in this domain remain centred on criminalization. A new law in Canada, Bill C-36: the Protection of Communities and Exploited Persons Act, exemplifies this point. While Bill (...) C-36 purports to shift criminal law’s focus from sex workers to their clients and profiteers, it continues to expose sex workers who work in public view to criminal prosecution. It thereby preserves sex work’s characterization as a nuisance, offensive to a community’s senses and deserving of proscription. Although Bill C-36 proclaims to promote dignity and equality rights, it prioritizes the interests of communities over those of sex workers. In the result, this new law will revoke sex workers’ social and political citizenship and thwart their personal security. (shrink)

Legal coercion seems morally problematic because it is susceptible to the Hegelian objection that it fails to respect individuals in a way that is ‘due to them as men’. But in what sense does legal coercion fail to do so? And what are the grounds for this requirement to respect? This paper is an attempt to answer these questions. It argues that legal coercion fails to respect individuals as reason-responsive agents; and individuals ought to be respected as such in virtue (...) of the fact that they are human beings. Thus it is in this sense that legal coercion fails to treat individuals with the kind of respect ‘due to them as men’. (shrink)

Je défends ici une conception interpersonnelle des menaces et des offres coercitives, centrée sur les intentions de ceux qui font de telles menaces ou de tellesoffres. Je critique, ce faisant, un groupe de conceptions fort influentes, appelées «baseline accounts». Robert Nozick, qui adopte une approche de ce genre, incorpore à son analyse des menaces coercitives des éléments non moraux aussi bien que des éléments moraux. Les approches de Daniel Lyons et de David Zimmerman peuvent être vues, à certains égards, comme (...) des améliorations par rapport à celle de Nozick. On essaiera de montrer, cependant, qu'aucune de ces approches ne fournit une analyse adéquate des menaces et des offres coercitives. (shrink)

Concepts such as ‘coercion’ and ‘inducement’ are often used within bioethics without much reflection upon what they mean. This is particularly so in research ethics where they are assumed to imply that payment for research participation is unethical. Wertheimer and Miller advance our thinking about these concepts and research ethics in a significant way, specifically by questioning the possibility of genuine offers ever being coercive. This commentary argues that they are right to question this assumption, however, more needs to be (...) said about the plausible coercive offer cases and to explain the normativity of these cases. (shrink)

Many scholars think that women are sentenced more leniently than men because judges are paternalistic toward women. In this article, I suggest that paternalism is a multilayered concept and that it is important to distinguish between judicial concerns for protecting women and those for protecting children and families. To learn what factors judges consider in sentencing and whether these differ for men and women defendants, I interviewed 20 men and 3 women judges in two state criminal courts. I learned that (...) the primary objects of judicial protection were not women, but children, and men's and women's economic support or care for families. However, there was a labor hierarchy in the judges' minds in that they believed that care giving was more important than wage earning for the maintenance of families. Interactive influences among the defendant's gender, familial status, race or ethnicity, and the nature of the offense charged are discussed. (shrink)

A ‘Ulysses arrangement’ (UA) is an agreement where a patient may arrange for psychiatric treatment or non-treatment to occur at a later stage when she expects to change her mind. In this article, I focus on ‘competence-insensitive’ UAs, which raise the question of the permissibility of overriding the patient’s subsequent decisionally competent change of mind on the authority of the patient’s own prior agreement. In “The Ethical Justification for Ulysses Arrangements”, I consider sceptical and supportive arguments concerning competence-insensitive UAs, and (...) argue that there are compelling reasons to give such UAs serious consideration. In “Decisional Competence and Legal Capacity in UAs”, I examine the nature of decisional competence and legal capacity as they arise in UAs, an issue neglected by previous research. Using the distinctions which emerge, I then identify the legal structure of a competence-insensitive UA in terms of the types of legal capacity it embodies and go on to explain how types of legal capacity might be shared between the patient and a trusted other to offer support to the patient in the creation and implementation of a competence-insensitive UA. This is significant because it suggests possibilities for building patient support mechanisms into models of legal UAs, which has not addressed in the literature to date. Drawing on this, in “Using Insights from the Competence/Capacity Distinction to Enhance Patient Support in UAs”, I offer two possible models to operationalize competence-insensitive UAs in law that allow for varying degrees of patient support through the involvement of a trusted other. Finally, I outline some potential obstacles implementing these models would face and highlight areas for further research. (shrink)

A central aim within criminal justice ethics is to give a plausible justification concerning which type of acts ought to be criminalized by the state. One of the principles of criminalization which has been presented and critically discussed in the philosophical literature is the Offense Principle. The primary aim of this paper is to argue that unless a rather special and implausible objective list theory of well-being is accepted, the Offense Principle should be subsumed in the Harm Principle.

This paper presents the case of a young man with a diagnosis of schizophrenia, who agreed to inpatient treatment primarily to avoid being formally detained. I draw on Peter Breggin's early critique of coercion of informal patients to supply an updated discussion of the ethical issues raised. Central questions are whether the admission was coercive, and if so, whether unethical. Whether or not involuntary admission would be justified, moral discomfort surrounds its appearance as a threat. This arises in part from (...) ambivalence about autonomy: although a ‘choice’ is made, the threat of detention impinges on the patient's choice. Recent legal developments provide some experience of safeguarding those whose consent is not obtained. This highlights the lack of safeguards in this ‘gap’ and suggests that we have the tools with which to begin to deal with the problem. (shrink)

ZusammenfassungEs ist ein Standard-Verfahren der Medizinethik, auf die Möglichkeit des Missbrauchs solcher Instrumente hinzuweisen, die im lege-artis-Gebrauch legitim sein können. Ein etabliertes Instrument der medizinischen Praxis sind paternalistische Handlungen, die bei geringer Reichweite individueller Entscheidungskompetenz, etwa bei Minderjährigen, verantwortliches Handeln absichern sollen. In der bisherigen Debatte wird Paternalismus als Problem eines ungerechtfertigten oder übermäßigen Gebrauchs diskutiert. Bislang erscheint in der medizinethischen Paternalismus-Debatte das Problem des scheinbaren Paternalismus zu wenig reflektiert. Auch die Thematik der sexualisierten Gewalt gegen Minderjährige im medizinischen Setting (...) ist bisher wenig beachtet worden. Für diese spezifische Form der Gewalt gibt es verschiedene Ermöglichungsbedingungen. Eine wichtige liegt in der Akzeptanz paternalistischer Handlungen im medizinischen Kontext. Denn ein scheinbarer Paternalismus im Zusammenhang mit sexualisierter Gewalt gegen Minderjährige profitiert von der Praxis des passageren Übergehens des aktuellen Willens eines Kindes. Der prominente Fall Larry Nassars, der als Teamarzt der US-Kunstturnerinnen in hunderten Fällen junge Patientinnen sexualisierter Gewalt ausgesetzt hat, macht auf die Möglichkeit sexualisierter Gewalt durch medizinisches Personal aufmerksam. Geht es in der Paternalismus-Debatte um die Frage, in welchen Zusammenhängen Paternalismus problematisch oder unproblematisch ist, so trägt diese Studie den Problemaspekt der Täuschung im Zusammenhang mit sexualisierter Gewalt bei. Sie leistet damit einerseits einen Beitrag zur Thematisierung sexualisierter Gewalt im klinischen Kontext, und sie trägt zum anderen zur medizinethischen Diskussion des Paternalismus bei, die nicht von der Möglichkeit des Schein-Paternalismus absehen sollte. Unter Schein-Paternalismus oder fingiertem Paternalismus wird hier eine Haltung und Praxis verstanden, die in der Gestalt eines Paternalismus eigene Interessen des Agierenden zum Schaden der in Abhängigkeit befindlichen Person verfolgt und Fürsorgepflichten ignoriert. Denn die kindliche Gewöhnung an die Unterordnung des eigenen Willens und Körpers im asymmetrischen klinischen Kontext kann dazu genutzt werden, fingierten Paternalismus zu etablieren. Die Rede vom Schein-Paternalismus soll dabei aber nicht darüber hinwegtäuschen, dass die Grenzziehung zwischen Paternalismus und Nicht-Paternalismus in der Praxis ebenso komplex ist wie diejenige zwischen körperlich-asexueller und körperlich-sexueller Gewalt. Ein präzises und transparentes lege-artis-Modell des Paternalismus soll hier als Basis für die Prävention sexualisierter Gewalt im klinischen Kontext diskutiert werden. Methodisch basiert diese Arbeit auf einer Auswertung der interdisziplinären Fachliteratur zur sexualisierten Gewalt im klinischen Kontext und zum Paternalismus. Es folgt dann eine Zusammenfügung der so gewonnenen Erkenntnisse, sodass am Ende eine komplexere Aussage AB über das Verhältnis von sexualisierter Gewalt und Schein-Paternalismus steht. (shrink)

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is (...) the state’s duty to promote. The criminal law’s approach to the problem of non-contemporaneous consent—prospective consent and retrospective consent—casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explains how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s “self-interest” conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s “sovereign autonomy” conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances. I resolve this dilemma by explaining that Raz’s “autonomy is good” conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s “self-interest” conception, or Feinberg’s “sovereign autonomy” conception. (shrink)

IntroductionExtended decision -making through the use of proxy decision -makers has been enshrined in a range of International Codes, Professional Guidance and Statute,For example, the UK Mental Capacity Act section 9.1; The General Medical Council ; the US National Guardianship Association ; Nuffield Council on Bioethics ; CIOMS-WHO section 6. Court cases such as Re Quinlan in the US have also contributed to establishing the groundings for the legal status of the proxy, albeit in terms of who might be suitable (...) as a proxy in cases where there was no clear appointment of them by a still competent individual. and is now widely seen as a useful means through which we can exercise control over decisions that affect our lives when we have lost capacity to make these decisions for ourselves.I will here limit myself to discussion of proxy consent for adults appointed prior to the loss of competence by the person they are acting as proxy for. The issue of p. (shrink)

In this paper we analyse the concept of coerced exchange (and partly of voluntary exchange inasmuch as the absence of coercion is its necessary condition), which is of utmost importance to economic theory in general and to the Austrian School of Economics in particular. The subject matter literature normally assumes that a coerced action occurs under threat. Threats in turn can be studied from the perspective of speech act theory, which is concerned with the speaker’s intentions. Ultimately, our goal is (...) to provide a descriptive (i.e. non-moralized) definitions of threat and coercion, based on the analysis of the coercer’s intentions. If successful, we would be in a position to present such an account of coerced and voluntary exchanges that is compatible with both speech act theory and the Austrian methodology. Although we focus on the Austrian School of Economics, we believe that our investigations might impact on economic theory in general. We also criticize a rights-based account of coercion employed in the research practice of some neo-Austrians and based on the libertarian ethic of property rights. (shrink)

This article examines how people with type 2 diabetes perceive autonomous decision making and which moral capacities they consider important in diabetes nurses' support of autonomous decision making. Fifteen older adults with type 2 diabetes were interviewed in a nurse-led unit. First, the data were analysed using the grounded theory method. The participants described a variety of decision-making processes in the nurse and family care-giver context. Later, descriptions of the decision-making processes were analysed using hermeneutic text interpretation. We suggest first- (...) and second-order moral capacities that nurses specializing in diabetes need to promote the autonomous decision making of their patients. We recommend nurses to engage in ongoing, interactive reflective practice to further develop these moral capacities. (shrink)