Balancing autonomy and risk: a failure of nerve in England and Wales?

Specialised mental health legislation typically provides for the hospitalisation and treatment of those with mental disorders in the absence of their consent. The article examines the possible justifications for the existence of these special powers and argues that two of the most common justifications, the protection of the patient and the protection of others, do discriminate against those with a mental, as opposed to a physical, disorder. The relationship between mental health and mental capacity, or guardianship, legislation is then considered and possible ways forward are discussed with particular reference to the current reform debate in England and Wales.     

Facing the Consequences

Many philosophers endorse deterrence justifications of legal punishment. According to these justifications, punishment is justified at least in part because it deters offenses. These justifications rely on empirical assumptions, e.g., that non-punitive enforcement can’t deter or that it can’t deter enough. I’ll challenge these assumptions and argue that extant deterrence justifications of legal punishment fail. I begin by isolating, in a simplified form, important claims common to deterrence justifications. I then endorse an uncontroversial claim about punishment and explore its implications for enforcement. These implications undermine the simple versions of the deterrence claims. I then evaluate several modifications of the claims to see whether they can be improved upon. I argue that they can’t easily be improved upon. In the process, I examine contemporary deterrence research and argue that it provides no support for deterrence justifications. I conclude by considering objections.     

青少年活体年龄鉴定操作规范的探讨

目前尚无公认的活体年龄鉴定操作规范或指导文献,各国及国内不同地区,甚至同一地区不同部门,采用的鉴定方法和技术手段各不相同,可能影响鉴定结论的科学性和准确性,甚至影响了司法鉴定的公平、公正。结合相关骨龄研究进展,就活体年龄鉴定的操作规范化问题进行初步探讨,提出了＂综合原则、均值原则、下限原则、及时原则＂等鉴定的基本原则,认为应综合多方法、多部位、多标准进行骨龄鉴定,同时结合牙龄、第二性征、营养状态和相关病理等影响骨骼发育因素的基本信息,综合地分析、判断并加以说明,期望促进活体年龄鉴定操作规范的研讨以及司法鉴定标准化的建设。同时,提出的＂鉴定四原则＂对于其他较复杂的和多因素案例的法医学鉴定亦具有借鉴意义。     

Limits of the Lamendin method in age determination.

This study shows that epithelial attachment level, used as age determination criterion in Lamendin's method, is not reliable for adults of either sex above the age of 49 years with periodontal diseases in any quadrant. The underestimation of calculated age increases from 7 to 19 years with chronological age. On the other hand, the present paper confirms the pertinence of dentin translucency as an age indicator in Lamendin's method.     

People We Hire as Executioners: Who Are They? Who Are We?

Christopher Bennett has introduced a new inquiry into the capital punishment debate by looking at whether the role of executioner is one in which it is possible and proper to take pride. He argues that this will depend on the kind of justifications that an executioner can offer in defense of his role and takes as an example the English executioner Albert Pierrepoint as portrayed in the film Pierrepoint: The Last Hangman. Bennett claims that none of the justifications available to Pierrepoint are adequate, that his pride in his role was unjustified, and that this gives us reason to doubt those justifications for capital punishment. I am unpersuaded by Bennett’s arguments and give reasons for thinking that the role of executioner can under certain circumstances be an honorable vocation in which one may legitimately take pride.     

Five Words for Assisted Dying

Motivated by Lord Joffe’s Assisted Dying for the Terminally Ill Bill, but with one eye on any possible future legislation, I consider the justifications that might be offered for limiting assistance in dying to those who are suffering unbearably from terminal illness. I argue that the terminal illness criterion and the unbearable suffering criterion are not morally defensible separately: that a person need be neither terminally ill (or ill at all), nor suffering unbearably (or suffering at all) to have a right to assisted dying. Indeed: I shall suggest that the unbearable suffering criterion undermines the Bill (or any proposal like it) wholesale. On the other hand, the criteria taken together are defensible, and this defence would be built on a concern for the protection of the vulnerable. However, I also claim that this implies that the law might justifiably—and maybe even properly—aim to prevent a person from gaining access to that to which they have a serious moral right. This seems paradoxical, and, towards the end of the paper, I seek to tease apart the paradox.     

A critique of Callahan's utilitarian approach to resource allocation in health care

The rationale of this article is grounded in the liberal tradition. It places the individual at the center of concern, and attempts to fortify the individual's basic right to health care. Attention is focused on the writings of Daniel Callahan, arguing that his approach is too cold and detached, and that age should not serve as the decisive criterion. The criticism of his views on older patients and on patients in post-coma unawareness (PCU) stems from two different lines of reasoning: the medical and the moral-contractual. From the medical perspective, while age is an important variable in determining a patient's medical condition, there are other--no less important--factors that influence one's health. From the moral-contractual line of reasoning, liberal society should not desert its citizens at the time they need its help most. The age criterion is too simple, too general, too sweeping. It provides too convenient an answer to a tough and troubling question. Similarly, the argument with regard to PCU patients should be qualified, taking into account the age of the patient, the cause of the condition, and the length of time in state of unawareness.     

Considering Capital Punishment as a Human Interaction

This paper contributes to the normative debate over capital punishment by looking at whether the role of executioner is one in which it is possible and proper to take pride. The answer to the latter question turns on the kind of justification the agent can give for what she does in carrying out the role. So our inquiry concerns whether the justifications available to an executioner could provide him with the kind of justification necessary for him to take pride in what he does. If they cannot, I argue, this sheds some light on their adequacy as justifications. The main argument of the paper is that social control arguments for the death penalty fail to provide an adequate justification. I also give some consideration to retributive justifications. The argument is developed through close attention to the depiction of Albert Pierrepoint in the film, Pierrepoint: The Last Hangman.     

The Marginally Viable Newborn: Legal Challenges, Conceptual Inadequacies, and Reasonableness

Decisions to provide life-sustaining medical care for marginally viable newborns present a unique set of morally complex challenges for providers and parents in the United States. This article examines recent legal trends that restrict discretionary decision-making, and critiques commonly employed ethical justifications offered to support permitting such discretion.     

Testing Fidelity to Legal Values: Official Involvement and Criminal Justice

The article examines the current criminal law and possible justifications for it with respect to three areas that are located between prosecutorial discretion and defences. These areas are officially-induced mistakes of law, entrapment, and conduct motivated by a desire to bring someone else to justice or to restore property. Common themes in the justifications for the avoidance of punishment in these examples suggest an underlying principle of fidelity to legal values, which should guide procedural and substantive law.     

A Retributive Justification for not Punishing Bare Intentions or: On the Moral Relevance of the ‘Now-Belief’

According to criminal law a person should not be punished for a bare intention to commit a crime. While theorists have provided consequentialist and epistemic justifications of this tenet, no convincing retributive justification thereof has yet been advanced. The present paper attempts to fill this lacuna through arguing that there is an important moral difference between a future-directed and a present-directed intention to act wrongfully. Such difference is due to the restraining influence exercised in the decisional process by the ‘now-belief’, i.e. the belief that the time has come to act, which is exclusively involved in the latter type of intention.     

A Normative Approach to the Quistclose Trust

This is the first article to undertake a sustained analysis of normative justifications for the Quistclose trust. Whilst much of the existing writing on this topic has focused on the better classification of such trusts – for instance, whether they are express, resulting, constructive or sui generis – this article asks why the law should recognise a trust in addition to any underlying legal relationship. Four key justifications are addressed, based on respecting party intention, unconscionability, fairness, and the incentivisation of desirable transactions. It will be argued that: (i) there are difficulties with each of these justifications, although an intention‐focused explanation is probably the most convincing; and (ii) the existing law and commentary lacks coherence and consistency, as seen in the mismatch between normative and doctrinal analysis, and the failure to properly address the ramifications of the Quistclose trust during insolvency.     

Quotas for Women! The Sex Discrimination (Election Candidates) Act 2002

The Sex Discrimination (Election Candidates) Act 2002 is unusual in two respects. First, it is a rare example of the permissible (though not mandatory) use of affirmative action in the United Kingdom, in this case to reduce gender inequality in the selection of election candidates. Secondly, the Act contains a sunset clause and will expire in 2015 unless extended. This article examines the background to the legislation, the forms of affirmative action it permits, and the use so far made of it by political parties. It also considers the justifications for affirmative action to increase women's political representation, asking what sets this apart from other contexts in which women are under-represented, and whether the temporary nature of the legislation is appropriate.     

“The roughest form of social work:” How court officials justify bail decisions

Growing research has analyzed quantitative patterns of bail decisions and outcomes, but we know far less about how court officials justify their bail decisions. To enhance understanding of how bail decisions—and their resulting pretrial outcomes—are generated, we interviewed 104 judges, prosecutors, and public defenders in a northeastern state. Court officials in our study reported three primary justifications at bail: ensuring defendants return to court, preventing crime, and lessening harm. The first two justifications have been suggested in the literature, but the latter is novel and encompasses two secondary justifications: lessening criminal legal system harm and lessening societal harm. We show how these justifications and the decisions they enable blend risk management with rehabilitation and emerge from court officials’ shared assumption of defendants’ social marginality but varied beliefs about what to do about such marginality pretrial. Each justification allows for distinct, but at times overlapping, bail decisions. We discuss the implications of our findings for theories of court official decision-making, research on racial and socioeconomic inequality, and bail reform policy.     

Academic freedom as insubordination: the legalisation of the academy

Australian academics, like their overseas counterparts, have, over recent years, felt an attenuation of the freedom traditionally ascribed to the academic. This attenuation has been accompanied by termination of employment, legal proceedings, and limitations placed on use of facilities or previously enjoyed freedoms. This paper considers the notion of academic freedom, and its traditional justification. It assesses the basis of that justification in the changing environment of higher education, and asserts that the need for academic freedom is not diminished by the commercialisation of the academy. Quite the reverse is the case. The paper considers the legal justifications for attacks on academic freedom, and the premises upon which they are based, with a view to arming the academic against such justifications.     

Claiming Citizenship: The Political Dimension of Welfare Fraud

This article exposes the political dimension of welfare fraud by investigating—in the context of the Israeli welfare reform of 2003—how forty‐nine Israeli women who live on welfare justify welfare fraud. I find that women's justifications cannot be fully explained by traditional noncompliance theories that view welfare fraud as an individual, private, criminal activity that solely reflects on the fraudster's moral character or desperate need. Instead, women's justifications for welfare fraud are better understood as a sociopolitical struggle for inclusion and deservedness—as a political act that reflects an alternative concept of citizenship with respect to women's unpaid care work.     

Probation Philosophies and Workload Considerations

Researchers have devoted a great deal of attention to understanding the punishment attitudes of different groups. Much of this research has focused on punishment attitudes of members of the public, while a few studies have considered how criminal justice officials perceive different sanctions. This study explores the justifications of probation rated by a sample of probation and parole officers. Attention is given to whether justifications are tied to the way officers rated the importance of different tasks as well as how much time officers reported their agencies devoting to different types of probation and parole activities. The results show some inconsistencies between justifications and work preferences/work activities. Implications are provided.     

Convergence Between Europe and America: The Transition from Industrial to Innovation Policy

Traditionally, the U.S. and Western Europe have chosen different policies to foster commercial innovation. Whereas (federal) government intervention in the U.S. has required strict justifications and has been mainly indirect, most governments on the other side of the Atlantic have played an explicit and more active role in the economy. However, recent developments indicate a convergence between Europe and America, both in type of policy measures and their legitimation. Within a framework of risk profiles and a typology of justifications, we examine several U.S. and European programs (Etzkowitz, 1997). We find that the main reason for convergence in policy agendas and measures seems to be an incorporation of perceived missing links in the innovation systems in response to reciprocal competitive pressures. Hence, the federal government is aiming to play a more direct role in the U.S., while the university sector and technology transfer becomes increasingly integrated in European innovation policies.     

THE ETHICS OF SURROGACY

This article explores the ethics of surrogacy and examines categories of arguments pertaining to this issue, among them deontological concerns (objections and justifications), consequential concerns (objections and justifications), contractual issues, and a feminist perspective. Also analyzed are competing alternatives. An overall assessment is provided.