This paper argues that libertarian political philosophers, including Robert Nozick, have erred in neglecting the problem of political obligation and that they ought to embrace an actual consent theory of political obligation and state legitimacy. It argues as well that if they followed this recommendation, their position on the subject would be correct. I identify the tension in libertarian (and especially Nozick's) thought between its minimalist and its consensualist strains and argue that, on libertarianism's own terms, the consensualist strain ought (...) to prevail. I then describe the form of the consent theory that I recommend to libertarians. The paper concludes with an extended defense of this form of consent theory against contemporary liberal-egalitarian criticisms of it (both explicit and implicit), including those of Dworkin, Rawls, and their followers. Footnotesa Earlier versions of this essay were presented at the University of Michigan, Virginia Commonwealth University, and Brown University. For their lively discussions and helpful suggestions for the improvement of this essay, I am grateful to those audiences and to my fellow contributors to this volume. And for their careful reading and comments, I thank the editors of Social Philosophy and Policy. (shrink)

: The increasing reliance upon, and perhaps the growing public and professional skepticism about, the special expertise of bioethicists suggests the need to consider the limits of moral expertise. For all the talk about method in bioethics, we, bioethicists, are still rather far off the mark in understanding what we are doing, even when we may be going about what we are doing fairly well. Quite often, what is most fundamentally at stake, but equally often insufficiently acknowledged, are inherently political, (...) essentially contested visions of the most compelling and attractive forms of life for individuals and social organization. The current situation in bioethics parallels similar debates in eighteenth-century jurisprudence, especially Jeremy Bentham's withering critique of the prevalent forms of judicial argument and his own, equally unsuccessful, attempt to develop a decision-making procedure in ethics that would operate on a plane above politics. The risk, both then and now, is that we will fail to appreciate the wide range of reasonable disagreement that will remain past the point of extended reflection and discussion. (shrink)

Some patients have no chance of surviving if not treated, but very little chance if treated. A number of medical ethicists and physicians have argued that treatment in such cases is medically futile and a matter of physician discretion. This paper is a critical examination of that position. According to Howard Brody and others, a judgment of medical futility is a purely technical matter, and one which physicians are uniquely qualified to make. Although Brody later retracted these claims, he held (...) fast to the view that physicians need not consult the patient or his family to determine their values before deciding not to treat. This is because professional integrity dictates that treatment shouldn't be undertaken. The argument for this claim is that medicine is a profession and a social practice, and thus capable of breaches of professional integrity. Underlying professional integrity are two moral principles, one concerning harm, the other fraud. Both point to the fact that when the odds of survival are very low treatment is a violation of professional integrity. The details of this skeletal argument are exposed and explained, and the full argument is subjected to criticism. On a number of counts, it's found wanting. If anything, professional integrity points to the opposite conclusion. (shrink)

This article provides an understanding and defence of ‘best interests’. The analysis is performed in the context of, and is informed by, English law. The understanding that develops allows for differences in values, and is thus argued to be appropriate in a pluralist liberal system. When understood properly, it is argued, best interests provides the best means of decision-making for people deemed incompetent to decide for themselves. It is accepted that some commentators are cynical of best interests in practice. Following (...) an assessment of some of their principal concerns, it is suggested that best interests in fact provides a construct that is both defensible and desirable. (shrink)

Academic health law is often said to suffer from a law of the horse problem, or, more particularly, to lack various dimensions of theoretical coherence. In conventional legal academic discourse, the coherence ideal prioritizes a cluster of attributes, all of which health law lacks: sparse conceptual singularity, a reductionist focus on particular legal forms, institutional centralization, and historical determinism and orderly development of a legal field. Health law is a singularly poor fit with this traditional model of field coherence. It (...) is a mishmash of various legal forms, applied by divergent and often colliding institutions, and has developed much more often through external pressures and even historical accidents than from any determinate internal evolution or refinement. This alleged theoretical deficiency has troubled many of the academy's leading health law scholars, who have endeavored to identify one or more foundational principles around which to center and unify the field.This essay argues that the quest for classical coherence as applied to health law is both quixotic and misplaced. Not all legal fields cohere to the same degree, or fit within the same off-the-rack conception of coherence. To a great extent the standard paradigm of field coherence, and the organization of the twentieth-century legal academy itself, reflect contested historical choices that ought not be applied uncritically to developing fields of study. Moreover, the very attributes that cause health law to flunk the classical coherence standard themselves represent fruitful avenues of scholarly focus. For instance, the fact that health law coheres not around reducible elements of legal form but rather around a set of primary interests and relationships protected by an inconsistent jumble of law invites close theoretical inspection of those foundational interests themselves. That such interests are protected and mediated by multiple and occasionally conflicting institutions is a feature that itself is partially field-defining and opens up promising avenues for comparative analysis from both theoretical and empirical perspectives. Finally, the fact that health law is a creature of history - and a history that is contested, uncertain, and nonlinear in its development over time - ought to invigorate rather than demoralize scholarship, inviting the kind of complex interdisciplinary study of legal change that has lately brought fresh insight to other fields such as constitutional law and torts. In sum, the dimensions of health law that distance it from the classical coherence paradigm - its mix of legal forms, its institutional multiplicity, its permeability to external political pressures and change over time - are themselves generalizable features worthy of detailed scholarly examination. (shrink)