Doing,Allowing, and the State

The doing/allowing distinction plays an important role in our thinking about a number of legal issues, such as the need for criminal process protections, prohibitions on torture, the permissibility of the death penalty and so on. These are areas where, at least initially, there seem to be distinctions between harms that the state inflicts and harms that it merely allows. In this paper I will argue for the importance of the doing/allowing distinction as applied to state action. Sunstein, Holmes, Vermeule and others have presented influential arguments for the claim that where the state is concerned the doing/allowing distinction has no moral significance, even if it does elsewhere. I show that these arguments can be resisted. In doing so, I defend some important distinctions and principles that help us understand the state’s role in protecting people from harm.     

U.S. experiences with racial and ethnic profiling: history, current issues, and the future

The issue of racial and ethnic bias in policing has been the focus of legal and criminal justice scholarship, court action, and public debate in the U.S. for a number of years. The issue has also been prominent in criminal justice scholarship, public discussion, and policy making in other countries, particularly the U.K., for an even longer period. This article surveys the history of the issue in the U.S. and attempts to give scholars and policy makers the benefit of the insights gained through the U.S. experience in handling the issue. Among these are the importance of the empirical question of the “hit rate” and how police use of race or ethnicity as a criterion changes it, and the difficulties of dealing with the thorny benchmarking issue. The article also discusses how advocates in the U.S. have attempted to meet and overcome arguments that police and their supporters have made in an attempt to minimize the problem or justify doing little or nothing about it.     

From Baghdad to Sunderland: Weblogs and reflective learning,or how i Learned to stop worrying and love the Blog

The question of whether open-book examinations (OBE) are preferable to closed book examinations (CBE) is not a new one. However, little has been written on the question of the use of OBE in the discipline of law or as a means of promoting more effective teaching and learning. This article will examine the arguments for and against the utilisation of OBE as opposed to CBE for students of law at university level. Utilising secondary data, as well as a primary small-scale empirical study the author explores student views of OBE and CBE and their significance for teaching and learning in law. It is suggested that the issue may not be simply a question of choice of assessment methods and their value but rather involves examining and evaluating approaches to teaching, learning and curriculum design. In conclusion it is argued that there are several factors which need to be taken into account when deciding what form of assessment is the most appropriate for these students but that the key requirement is that the course design and teaching, learning and assessment methods are aligned and considered as a whole, matching learning outcomes to teaching and learning activities and to the form of assessment chosen. Only within this context can OBE promote more effective learning.     

Death, dying, and domination

This Article critiques conventional liberal arguments for the right to die on liberal grounds. It contends that these arguments do not go far enough to recognize and address private, and in particular structural, forms of domination. It presents an alternative that does, which is thus more respectful of true freedom in the context of death and dying, and also more consistent with liberalism. After discussing obstacles to the achievement of a right to die that encompasses freedom from both public and private domination, the Article closes with a significant reform project within bioethics that might help bring it about.     

The Special Case Thesis

The author outlines his thesis that legal discourse is a special case of general practical discourse ( Sonderfallthese ) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses ( genus proximum problem) holding that the former is a combination of moral, ethical, and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context.     

Vitamin C: ascerbic ethical discussions

The issue of a patient's rights to demand treatment has recently been raised by a dramatic case in which a patient made a remarkable recovery following the use of an unconventional treatment that the hospital staff initially refused to administer. The normal position in such cases is that the relatives can take part in a clinical decision but the medical staff are bound to make it according to a clinical assessment of the best interests of the patient. That assessment is only required to take into account what would be regarded as acceptable regimens of treatment for the patient's condition. There is no ethical or legal basis for the patient's relatives being able to demand any treatment that the clinical team do not consider indicated nor to demand a highly unconventional treatment The case therefore poses a problem. When should we allow ourselves to be persuaded to step outside the bounds of accepted medical practice at the urging of relatives or patients? There are plausible arguments that a demonstration of efficacy in a particular patient or some reputable evidence of probability of efficacy would both be good enough grounds. In addition, one could argue that where the patient's predicted clinical course is terminal, then desperate measures of unproven efficacy can be tried in that the balance of harm and benefit cannot be further worsened. The implication of the actual events in the case in question is that a certain humility in the light of the incompleteness of medical knowledge is always appropriate and an objective weighing of the facts of the case, free from prejudicial theoretical commitments, is needed in the face of medical uncertainty.     

When Culture Means Gender: Issues of Cultural Defence in the English Courts

The use of cultural defence has been much discussed in the American context and has figured as one of the areas of concern in feminist assessments of multiculturalism. This paper examines two categories of cases from the English courts, those where cultural context has been seen as significant in interpreting the actions of female defendants, and those where 'culture' is invoked to explain severe acts of violence against women. It argues that cultural arguments become available to female defendants mainly when they conform to stereotypical images of the subservient non-Western wife. They have not, on the whole, been successfully employed by male defendants to mitigate crimes against women, though there are troubling exceptions. The larger problem is that mainstream culture itself promotes a gendered understanding of agency and responsibility, as when it perceives men as understandably incensed by the sexual behaviour of their women, or women as less responsible for their actions because of the influence of men. The conclusion is that the uses and abuses of cultural defence highlight issues that have wider provenance, for it is when cultural arguments resonate with mainstream conventions that they have proved most effective.     

Agent-Relative Prerogatives to Do Harm

In this paper, I offer two arguments in support of the proposition that there are sometimes agent-relative prerogatives to impose harm on nonliable persons. The first argument begins with a famous case where most people intuitively agree it is permissible to perform an act that results in an innocent person’s death, and where there is no liability-based or consequentialist justification for acting. I show that this case is relevantly analogous to a case involving the intentional imposition of lethal defensive harm on a nonliable person. In the final part of the paper, I provide a second, independent, argument in support of the proposition that there are agent-relative permissions to foreseeably harm or kill nonliable people under certain conditions.     

Assessing evidence and testing appropriate hypotheses

It is crucial to identify the most appropriate hypotheses if one is to apply probabilistic reasoning to evaluate and properly understand the impact of evidence. Subtle changes to the choice of a prosecution hypothesis can result in drastically different posterior probabilities to a defence hypothesis from the same evidence. To illustrate the problem we consider a real case in which probabilistic arguments assumed that the prosecution hypothesis “both babies were murdered” was the appropriate alternative to the defence hypothesis “both babies died of Sudden Infant Death Syndrome (SIDS)”. Since it would have been sufficient for the prosecution to establish just one murder, a more appropriate alternative hypothesis was “at least one baby was murdered”. Based on the same assumptions used by one of the probability experts who examined the case, the prior odds in favour of the defence hypothesis over the double murder hypothesis are 30 to 1. However, the prior odds in favour of the defence hypothesis over the alternative ‘at least one murder’ hypothesis are only 5 to 2. Assuming that the medical and other evidence has a likelihood ratio of 5 in favour of the prosecution hypothesis results in very different conclusions about the posterior probability of the defence hypothesis.     

Principle,Proceduralism, and Precaution in a Community of Rights

Abstract. This paper presents a sketch of the way in which an ideal‐typical community of rights, Gewirthia, responds to the so‐called “internal problem of authority.” Notwithstanding the deep moral consensus in Gewirthia, where citizens are fully committed to the Principle of Generic Consistency (requiring that agents respect one another’s freedom and basic well‐being), Gewirthians make no claim to “know all the answers.” In consequence, public governance in Gewirthia needs a strategy for dealing with the many kinds of disputes—disputes that relate to matters of both principle and practice—that require authoritative settlement. In this context, having outlined the nature of (and justification for) the procedural strategy that Gewirthia adopts in order to resolve such disputes, we discuss the range of regulatory questions that are potentially moot in Gewirthia, and focus on three hard cases in which the State might argue for a precautionary licence—namely, where there is a dispute about indirect and speculative harm to rights‐holders, about harm to arguable rights‐holders, and about the possible corrosion of the conditions that are essential for the sustainability of a moral community.     

Necessity, Moral Liability, and Defensive Harm

A person who is liable to defensive harm has forfeited his rights against the imposition of the harm, and so is not wronged if that harm is imposed. A number of philosophers, most notably Jeff McMahan, argue for an instrumental account of liability, whereby a person is liable to defensive harm when he is either morally or culpably responsible for an unjust threat of harm to others, and when the imposition of defensive harm is necessary to avert the threatened unjust harm. Others may favour a purely noninstrumental account of liability: one that looks only to the past behaviour of the potentially liable person. We argue that both views are vulnerable to serious objections. Instead we develop and defend a new view of liability to defensive harm: the pluralist account. The pluralist account states that liability to defensive harm has at least two bases. First, if an attacker is morally or culpably responsible for an unjust attack then he has forfeited what we call his agency right, and in doing so he has made himself partially liable to defensive harm. Whether the attacker is fully liable to defensive harm depends, however, on whether the imposition of defensive harm would infringe a different right held by the attacker: his humanitarian right. Humanitarian rights are rights to be provided with urgently needed resources or to be protected from serious harms when others can do so at reasonably low cost. We argue the pluralist account avoids the objections to which the instrumental and noninstrumental views are vulnerable, coheres with our intuitive reactions in a wide range of cases, and sheds new light on the way different rights combine to determine a person??s liability to suffer harm.     

On Justifying Legal Paternalism

Abstract. Paternalism, understood as coercive intervention with the behavior of a person in order to prevent her from causing harm to herself, is a highly controversial issue, because it implies a departure from the widely recognized principle of harm to others. Some conceptual differences between legal paternalism and other forms of state coercion that also depart from the principle of harm to others will be indicated. This is followed by an analysis of the arguments that are usually brought forth against legal paternalism. And finally, the possibility of determining ethically justifiable types of legal paternalism is explored.     

The concept of harm reconceived: A different look at wrongful life

In wrongful life litigation a congenitally impaired child brings suit against those, usually physicians, whose negligence caused him to be born into his suffering existence. A key conceptual question is whether we can predicate “harm” in such cases. While a few courts have permitted it, many courts deny that we can, and thus have refused these children standing to sue. In this article the author examines the wrongful life cases and literature enroute to a broader consideration of harm. This literature, and philosophical discussions of harm generally, rely on a definition which ascribes harm by comparing an individual's current condition with that in which he would otherwise have been, but for the allegedly harmful event. The author shows this definition to be conceptually and morally flawed. A superior general definition is offered which, when then applied to wrongful life cases, shows that we can easily ascribe harm in these cases and can find clear potential for tort liability.     

Legal Rights and Moral Rights: Old Questions and New Problems*

Abstract. The author examines the discipline of moral rights and in particular the need to embed them in a consequential system. He argues that the widely held opinion that independence from consequential evaluation is the right way of guaranteeing individual freedom is based on an inadequate appraisal of the role of moral rights in the social context. In this perspective he examines two specific cases: (1) elementary political and civil rights, and (2) the reproductive rights of women in the context of poor countries with the problem of fast population growth. He argues that a coherent goal-rights system which accommodates rights among others goals, can overcome the non-consequential arguments and justify the force of moral rights fully within a consequentiality perspective.     

The Social Scientist and Rehabilitative Crime Policy

Social scientists are in a quandary about crime policy. On the one hand, the tools of their discipline incline them naturally toward a search for the causes of differences in delinquent behavior, an inclination which appears to be supportive of the potential for rehabilitative components to crime policy. Both the premise of determinism and the methodology of differentiation are intellectually compatible with the prospects for rehabilitation, because both are requisites for a crime control strategy that seeks the impact of purposeful changes in the lives or attitudes of delinquents on subsequent behavior. On the other hand, social scientists are being confronted with a number of arguments that question the utility for social policy of adherence to these assumptions. The validity of some of these arguments is explored briefly in this article. They are found to suffer from an erroneous conception of the logic of determinism, an underdevelopment of the notion of deterrence, or an artifactual conception of the requisites for rehabilitation.     

Fantasy depictions of child sexual abuse: The problem of ageplay in Second Life

Abstract

This paper explores the arguments put forward for prohibiting the possession of fantasy images of child sexual abuse within the Coroners and Justice Act 2009, and applies them to sexual ageplay in Second Life. Sexual ageplay is the virtual act of simulating child sexual abuse using animated child characters operated by consenting adult users. The arguments underpinning the legislation centre on the issue of harm and the relationship between online, virtual behaviour and real world contact offences. It is argued that extant research does not support a causal connection, although some work on fantasy offence planning and online paedophilia chat groups suggests a link. Due to the lack of empirical work in the area it is concluded that legislation to criminalise such behaviour on grounds of harm causation is currently unjustified, although prohibition of sexual ageplay for known sex offenders is recommended. Further research into the extent, use and effects of sexual ageplay is required.     

CONFIDENTIAL GEODATA PROTECTION IN CHINA: CHALLENGES,LIABILITY CONCERNS AND POSSIBLE SOLUTIONS

In recent years, a growing number of foreign companies and individuals were involved in geodata violations in China. The Chinese government is facing greater pressure to protect confidential geodata within its territory. Geodata violations occurred in the course of illegal mapping and surveying, geographical and geological data collection and transactions. Although China has reformed laws and regulations to refine some aspects of confidential geodata management, existing rules remain ambiguous and controversial. This article aims to address the liability concerns raised among foreign companies from geodata violations. After defining the three most significant concepts, geological data, mapping and surveying, and state secrets, this article reviews the status quo, reasons for and impacts of geodata violations in China, to find out how big the problem is and why it matters. It then explores the legislative framework of state secrets protection in the context of geodata management; special focus is put on liability issues and problems of the current system. As a response to existing arguments, possible ways to improve confidential geodata protection and some practical tips for foreign businesses are offered.     

The north and south divide

A growing body of evidence looks at violence and harm caused to women working in lap dancing clubs. However, little attention has been paid to the wider impact of the licensing of sex entertainment venues (SEVs) on women's sense of safety and well-being in city centres where they are concentrated. This article contributes to the debate around the licensing of lap dancing clubs and gendered harm, using testimonies from a participatory photography research project facilitated by Sara Parker. Findings support feminist arguments that women's sense of safety and wellbeing in public spaces is compromised by the widespread use of sexualised imagery of women and girls in public spaces and by the growth of SEVs such as lap dancing clubs.     

A probabilistic approach to the joint evaluation of firearm evidence and gunshot residues

The present paper addresses issues that affect both the separate as well as the joint evaluation of firearm evidence (i.e., marks) and gunshot residues (GSR). Mark evidence will be used as a basis to discriminate among barrels through which a bullet in question might have been shot whereas GSR will be used to draw inferences about the distance of firing. Particular attention is drawn to the coherent handling of uncertainties associated with the various parameters considered within each item of evidence. The proposed analysis relies on a probabilistic viewpoint that uses graphical models (i.e., Bayesian networks) as an aid to cope with the complexity induced by the number of variables considered. The paper discusses how an approach based on a probabilistic network environment can be used for the formal analysis and construction of arguments. Emphasis is made on the gain of insight into structural dependencies that may be uncovered when the evaluative process is extended beyond single items of scientific evidence.