In philosophy, economics, and law, the idea of voluntary agreements plays a central role. But contractarianism in political philosophy stands on altogether different grounds from enthusi...

This article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with (...) a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used. (shrink)

This article examines stakeholder involvement and influence as part of voluntary environmental agreements between regulatory agencies and companies. Ten pilot projects that were part of the U.S. Environmental Protection Agency’s Project XL were examined to evaluate process goals and outcome goals. The ten case studies encompass a range of businesses, locations, and ideas for regulatory “reinvention” projects, and they span a spectrum of stakeholder participation processes and outcomes. Although results point to numerous problems in implementation, they also indicate that (...) in several cases, stake holder groups significantly affected the final project agreement and enforceable permit. The evidence suggests that companies can work collaboratively and constructively with residents of local communities, members of national environmental organizations and other interest groups, and government regulatory officials to craft voluntary environmental agreements that are cooperative and environmentally beneficial. (shrink)

Large mining projects can generate highly inequitable outcomes, with affected communities bearing the burden of social and environmental costs while economic benefits accrue largely to domestic and foreign metropolitan centres. This raises important ethical and social justice issues, as does the finite nature of mineral resources, which can mean that current generations enjoy the benefits of mining while future generations bear the costs of environmental and social impacts that can continue long after mining ends. During recent decades two broad approaches, (...) voluntary industry initiatives and government regulation, have been employed in attempts to achieve a more equitable distribution of mining’s positive and negative effects. Both have serious drawbacks. Industry initiatives are ultimately voluntary and may be abandoned in tough economic times; they can be highly variable across companies and projects; and they suffer from serious compliance issues. Public regulation can be inflexible, is subject to industry capture, and in many major mineral producing nations a ‘retreat from regulation’ is reducing its relevance. This article considers whether, and under what conditions, a third and emergent instrument, community development agreements, can help overcome the shortcomings associated with industry initiatives and public regulation. It argues that CDAs have considerable potential in this regard, but that communities can encounter significant practical challenges in their negotiation and implementation. In addition, disparities in negotiation power between communities and project developers can result in inequitable agreements, indicating a continued need for government involvement to create a more level ‘negotiation terrain’. (shrink)

By building upon Raz's analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which agreements (...) should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains. (shrink)

The fact that Gilbert Ryle and J.L. Austin seem to disagree about the ordinary use of words such as ‘voluntary’, ‘involuntary’, ‘voluntarily’, and ‘involuntarily’ has been taken to cast doubt on the methods of ordinary language philosophy. As Benson Mates puts the worry, ‘if agreement about usage cannot be reached within so restricted a sample as the class of Oxford Professors of Philosophy, what are the prospects when the sample is enlarged?’ (Mates, Inquiry 1:161–171, 1958, p. 165). In (...) this chapter, we evaluate Mates’s criticism alongside Ryle’s and Austin’s specific claims about the ordinary use of these words, assessing these claims against actual examples of ordinary use drawn from the British National Corpus (BNC). Our evaluation consists in applying a combination of methods: first aggregating judgments about a large set of samples drawn from the corpus, and then using a clustering algorithm to uncover connections between different types of use. In applying these methods, we show where and to what extent Ryle’s and Austin’s accounts of the use of the target terms are accurate as well as where they miss important aspects of ordinary use, and we demonstrate the usefulness of this new combination of methods. At the heart of our approach is a commitment to the idea that systematically looking at actual uses of expressions is an essential component of any approach to ordinary language philosophy. (shrink)

This chapter contains sections titled: What is Justice? Glaucon's Theory of a Social Contract Glaucon and Thrasymachus on what Justice is: Results and Methods Why should I be Just?

How should the fact of state consent to international agreements affect their moral evaluation? Political criticism of the content of international agreements is often answered by invoking the voluntary nature of those agreements: if states did not wish to accept their terms then they were free to reject them; the fact of their having voluntarily accepted them limits the scope for subsequent criticism. This is the “Voluntarist Reply”. This paper examines the Voluntarist Reply to understand the specific moral work (...) that it claims to do, the sense of voluntariness that it requires, and the limits on the capacity of voluntary consent to answer substantive political and moral criticism . It maps those limits across four prominent and plausible accounts of international economic justice to understand the different ways that consent does or does not alter the moral situation. (shrink)

It appears that the attitudes of health professionals differ towards suicide and voluntary active euthanasia. An acceptance of, if not an agreement with, voluntary active eutha nasia exists, while there is a general consensus that suicide should be prevented. This paper searches for a working definition of suicide, to discover ethical reasons for the negative value that suicide assumes, and also to provide a term of reference when comparing suicide with euthanasia. On arriving at a working definition (...) of suicide, it is compared with voluntary active euthanasia. An analysis of utilitarian and deontological considerations is provided and proves to be inconclusive with respect to the ethical principles informing the attitudes of professionals. Therefore, a search for other influences is attempted; this indicates that psychological influences inform attitudes to a greater degree than ethical principles. (shrink)

Michael Philips in his paper 'Are Coerced Agreements Involuntary?' argues against the widely accepted claim that agreements secured by coercion are involuntary and hence the law should not enforce coerced agreements. Philips's argument relies, I argue, upon an indefensible account of voluntariness. His account of voluntariness does not provide a justification for the system of voluntary exchanges, nor does it link up with our entrenched views about moral and legal responsibility. After arguing for the inadequacy of Philips's analysis of (...) voluntary, I show that Philips has not established the conclusions he thinks he has; specifically, he does not show that agreements made in response to coercion are not involuntary, that coercion does not invalidate agreements, and that the distinction between illegal and legal means which he is so eager to make cannot do the work he wants it to do. (shrink)

I develop a conception of voluntary exchange and its value that helps us understand the fundamental source of difficulty with voluntary exchange. We can make a great deal of progress in understanding the promise and the perils of voluntary exchange by elaborating an analogy between voluntary exchange and democracy. To be sure, this is a hazardous activity since there are many differences between these areas. But a careful effort here will illuminate the domain of voluntary (...) exchange in both normative and descriptive dimensions. I argue that there is a fundamental tension between the normative principle that applies to voluntary exchange and the basic mechanism by which voluntary exchange operates. The fundamental normative principle, I will argue, is the principle that power over the making of an agreement with another ought to be proportioned among the persons to the interests each person has at stake in the making of the agreement. The fundamental mechanism of voluntary exchange, on the other hand, is that power is inversely proportioned to the stakes someone has in making the agreement. The more interests I have at stake in making an agreement, the more say over the content of the agreement I should have, and, yet, the more my interests hang on an agreement, the less bargaining power I have and so the less say I have in the making of the agreement. Hence, the inherent tendency of voluntary exchange is to work against the realization of the fundamental normative principle that regulates voluntary exchange. Hence, we have a deep and pervasive opposition between fact and norm in the very nature of voluntary exchange. All is not entirely hopeless, however, since there is a unique point where this opposition does not appear and that is in equality in the background conditions of exchange. (shrink)

What should Japanese doctors do when asked by a patient for active voluntary euthanasia, when the family wants aggressive treatment to continue? In this paper, we present the results of a questionnaire survey of 366 Japanese doctors, who were asked how they would act in a hypothetical situation of this kind, and how they would justify their decision, 23% of respondents said they would act on the patient’s wishes, and provided reasons for their view; 54% said they would not (...) practice VE, either because they were opposed to VE as such, or because they believed that the wishes of the patient’s family should be respected.Analysis of these responses yielded the following results: Doctors willing to respect the patient’s wishes defended their decision by highlighting the significance of patient autonomy and the patient’s exclusive ownership of his or her life; doctors unwilling to act on the patient’s wishes fell into two broad categories — those who based their reasoning on the family’s objections, and those who provided other reasons for refusing VE. Respondents who said they would not comply with the patient’s wishes because of family objections provided the following kinds of rationale: doctors have serious responsibilities not only to the patient, but also to the patient’s family; the importance of the family-doctor relationship; fear of lawsuits for murder and related criminal offences; the need for agreement among all those affected by the decision, and the belief that the patient’s life is not his or her own, but the family’s. Respondents who gave non-family centred reasons for not complying with the patient’s wishes pointed to values such as the sanctity of life, or the importance of a natural deathIn the remainder of this paper, we discuss the implications of a family-centred approach to VE. (shrink)

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are (...) worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated “voluntary agreement” demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions. (shrink)

This piece proposes amendments to section 273.2 of the Canadian Criminal Code. Section 273.2, enacted in 1992 and revised in 2018, specifies circumstances in which belief in consent is not a defence to sexual assault. The amendments proposed here are designed to ensure that the wording of this statutory provision properly reflects the significant jurisprudential developments related to mens rea and the communication of voluntary agreement (i.e., affirmative sexual consent) achieved by Canadian judges since the original enactment of (...) section 273.2 in 1992. Revisions to the Model Jury Instructions posted by the National Judicial Institute are also considered. (shrink)

A topic of growing importance within philosophy of science is the epistemic implications of the organization of research. This paper identifies a promising approach to social epistemology—nonideal systems design—and uses it to examine one important aspect of the organization of research, namely the system of patenting and licensing and its role in structuring the production and dissemination of knowledge. The primary justification of patenting in science and technology is consequentialist in nature. Patenting should incentivize research and thereby promote the development (...) of knowledge, which in turn facilitates social progress. Some have disputed this argument, maintaining that patenting actually inhibits knowledge production. In this paper, I make a stronger argument; in some areas of research in the US—in particular, research on GM seeds—patents and patent licenses can be, and are in fact being, used to prohibit some research. I discuss three potential solutions to this problem: voluntary agreements, eliminating patents, and a research exemption. I argue against eliminating patents, and I show that while voluntary agreements and a research exemption could be helpful, they do not sufficiently address the problems of access that are discussed here. More extensive changes in the organization of research are necessary. (shrink)

I will outline four justifications of regional ecological obligations calling for different political authorities to collaborate for ecological reasons: through voluntary agreement between political entities united by an ecological region; by a shared regional history or cultural relations to an ecological region; with reference to ‘place-based’ duties with an ecological basis; or by obligations to an extended set of individual right-holders. None are conclusive reasons but show that there are normative grounds for regional collaboration of separate political authorities. (...) The article contributes to discussion on, despite its practical relevance, a much neglected concept in political philosophy. (shrink)

Transnational corporations have become actors with significant political power and authority which should entail responsibility and liability, specifically direct liability for complicity in human rights violations. Holding TNCs liable for human rights violations is complicated by the discontinuity between the fragmented legal/political structure of the TNC and its integrated strategic reality and the international state system which privileges sovereignty and non-intervention over the protection of individual rights. However, the post-Westphalian transition—the emergence of multiple authorities, increasing ambiguity of borders and jurisdiction (...) and blurring of the line between the public and private spheres—should facilitate imposing direct responsibility on transnational firms. Mechanisms for imposing direct responsibility on TNCs are considered including voluntary agreements and international law. However, I conclude that a hybrid public-private regime which relies on non-hierarchical compliance mechanisms is likely to be both more effective and consistent with the structure of the emerging transnational order. (shrink)

ABSTRACT:If an employee is committed to his firm—if he is “attached” or “bound” to it—then his firm may be able to obtain a discount on his labor. This paper asks: Is it wrong for firms to do so? If we understand just or fair pay solely in terms of voluntary agreements between employers and employees, the answer seems to be ‘no.’ Against this, I argue that, in some cases, it is ‘yes.’ In particular, it is wrong for firms to (...) try to obtain discounts on their committed employees’ labor when their employees reasonably expect that they will not try to obtain them. In the process, I probe the limits of exploitation and question the relevance of contribution to fairness in compensation. (shrink)

In this ground-breaking article submitted for publication in mid-1986, Lucinda Vandervort creates a radically new and comprehensive theory of sexual consent as the unequivocal affirmative communication of voluntary agreement. She argues that consent is a social act of communication with normative effects. To consent is to waive a personal legal right to bodily integrity and relieve another person of a correlative legal duty. If the criminal law is to protect the individual’s right of sexual self-determination and physical autonomy, (...) rather than simply to regulate the type and degree of force that may be used to obtain compliance from a victim, the point of reference must be the individual complainant, as a person who makes choices, not social norms or objective tests based on the ordinary person. To determine whether consent is voluntary, attention must be directed to the presence or absence of factors that had a coercive impact on the individual complainant, a specific person with a collection of social, cultural, and psychological experiences, needs, fears, values, and priorities. Individuals have the right to exercise self-determination in accordance with their own values and perceptions, not those of a mythical victim. Accordingly, Vandervort argues that the prosecution may show either refusal, the absence of affirmative voluntary agreement (including passivity or the absence of consent due to unconsciousness), or circumstances that invalidate any apparent consent. Any of these prove the absence of consent for the purposes of establishing the actus reus of sexual assault. -/- The definition of consent as the affirmative communication of voluntary agreement is also shown to have a variety of implications for the interpretation and application of the law of sexual assault and the handling of evidentiary issues at trial in sexual assault cases. Key among these is the pivotal significance of the legal definition of consent as a tool to bar availability of the defence of “mistaken belief in consent.” Vandervort argues that in many cases the defence of “mistaken belief in consent” is based on ignorance of the law of consent, mistake about the legal definition of consent, or a failure to appreciate the legal significance of facts that are well-known, and not on a mistaken belief in an erroneous set of facts. The broad proposition asserted here is that a statutory criminal law is enforceable only if all defences based directly or indirectly on belief in the validity of extra-legal norms that authorize infringement of rights protected by the criminal law are barred. This proposition and the characterization of some mistakes about consent as legal, not factual, are also shown to be useful to exclude rape-myths and stereotypical assumptions---the stuff of which “social” definitions of consent have long been constructed---from the decision-making process at trial. -/- . (shrink)

We argue that the idea of ECC is more in line with libertarian than liberal thinking. The basic idea of ECC is the dislocation of the provider of citizenship rights from governments to corporations: corporations provide and administrate the same citizenship rights, which governments provided earlier, before the political processes started the privatization of these entitlements . According to John Rawls’ liberal viewpoint, citizens’ relations to the public structures of society are supposed to be fundamentally different from their relations to (...) private associations like business corporations. In libertarian thinking , instead, citizens relations to public institutions do not significantly differ from their relations to business corporations. Both are based on voluntary agreements, bringing forth the idea of a contract-society. Since ECC is backed up by this kind of contractsociety, it brings forth libertarian interpretations of the most central political matters - like the basic structure of society, and the concepts of freedom and democracy. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Good Neighbors Make Good Fences: Frost’s “Mending Wall”Zev TrachtenbergDefenders of the institution of private property have considered at length its benefits to individuals: for Aristotle it allows for the practice of certain virtues; for Hegel it allows for the expression of free human personality. 1 Property is also, of course, seen as the foundation of political society: for Locke men form government to enforce their property rights; for Jefferson (...) property enables citizens to participate in their institutions of self-government. 2But there is a level of human experience between simple individuality and the formal rules and rights articulated and enforced by society. I have in mind the more immediate form of human association evoked by the word community. Let me offer a rough-and-ready distinction. The social contract tradition prompts us to think of society in terms of the cooperative human enterprise of protecting individuals’ interests; the concept of society calls to mind formal voluntary agreements and associations, contracts, the economy, ultimately laws and rights. 3 We can think of community, by contrast, in affective terms; it calls to mind the direct human relations of people who share a place and mode of living. 4 A society has laws and a government; a community has customs and a culture.In this essay, then, I want to explore the relationship between property and community. It is, I think, an ambiguous one: property can be accused of corroding the human connections that constitute community life, but the maintenance of a property regime can also be seen as itself a communal enterprise. 5 This ambiguity is displayed vividly in Robert Frost’s “Mending Wall.” 6 Reading the poem can help us see the complex ways in which property and community are intertwined. [End Page 114]I“Mending Wall” has two characters: its narrator and his neighbor, owners of adjacent farms, who meet each Spring to repair the stone wall that stands between their properties. The narrator, at first glance, seems to take a somewhat skeptical attitude toward property. (We shall see that his attitude is in fact more complicated.) The poem opens with his words “Something there is that doesn’t love a wall”—a phrase he repeats later, making it a kind of slogan for the position on property he personifies. That position seems to reject human attempts to inscribe the arbitrary divisions of property holdings on the land. The narrator sees in natural processes an attempt to cast off this artificial imposition: that which doesn’t love a wall “sends the frozen-ground-swell under it, /And spills the upper boulders in the sun.” He recognizes that asserting a separation between the two parcels of property by erecting a wall is futile. For, he recognizes, the two parcels are one, connected underneath the wall by natural forces that work unconsciously but actively against human efforts to divide them.The neighbor, by contrast, speaks for an individualistic belief in the value of marking property holdings. “Good fences make good neighbors” are his only words in the poem, repeated in the last line like a counter-slogan to the narrator’s. The neighbor first offers his slogan in response to the fact that the wall is not needed for the practical purpose of keeping his and the narrator’s goods separate. Their goods do not need a wall to be kept apart: they have no cows to wander back and forth across the line, and the narrator’s “apple trees will never get across/And eat the cones under [the neighbor’s] pines.” For the neighbor, that is, the utility of the wall is not economic. Rather it serves to define the sort of relationship he wishes to have with those who surround him: his slogan expresses an ideology of human separation. In the neighbor’s eyes, apparently, all that makes a neighbor is the mere fact of owning an adjacent farm, hence what makes a good neighbor is his separateness. For what else could characterize the goodness of neighbors who are made good by fences?The neighbor thus personifies a position on property that disvalues community. Property is marked by walls, whose main function in his view... (shrink)

For all contract theorists, including Kant, political legitimacy is based upon the consent of the governed. The differences amongst them begin to emerge when we inquire into the motivations and considerations which lead up to the agreement. For Kant, consent to the social contract is not based upon considerations of rational self-interest or prudence, nor upon a natural right to self-preservation and the guarantee of absolute property rights, but upon a moral obligation to institutionalize and make peremptory in a (...) social contract property rights that in the state of nature have only a provisional character. Whether this approach ultimately makes the idea of a voluntary agreement superfluous is a question I will address below. First I would like to consider the unique status Kant assigns to property rights in his theory of the social contract. This status has for the most part not been observed in the secondary literature, and Kant has even been accused of falling behind the achievements of Locke and Rousseau by grounding property rights on an element of brute force. However, since Kant himself espoused a labor theory of property rights in his earlier writings, it is important to consider carefully the basis for its subsequent rejection in the Rechtslehre. Further, since Kant’s theory of property rights constitutes an alternative to Locke, it may be possible to find within the contract tradition an alternative to the view of property rights found in some of its contemporary versions. (shrink)

Gauthier’s contractarianism begins with an idea of a rational deliberator but ‘finds no basis for postulating a moral need for the justification of one’s actions to others. The role of agreement is to address each person’s demand that the constraints of society be justified to him, not a concern that he justify himself to his fellows’ (Gauther 1997, 134–5). He contrasts his view with Scanlon’s contractualism, according to which agreement with others is the core of morality and each (...) agent has the burden of justifying his or her actions to others. Both of their views count as ‘constructivist’ because they reject moral realism and hold that normativity is a function of what we do, either individually or collectively. Kant’s Rechtslehre is neutral regarding moral realism and yet constructivist about moral norms. However, the relevant acts basic to Gauthier’s and Scanlon’s views concern voluntary agreements we make. Using agreement to establish basic norms faces some serious difficulties. Kant’s Rechtslehre avoids these problems by showing how basic social norms can be identified and justified independently of voluntary agreement. Moreover, it does so in a way that shows that an individual’s justification of his or her acts to others and the justification of the acts of others to any individual are inseparable aspects of one and the same justificatory reasons in which voluntary agreement plays no role. (shrink)

The purpose of this study is to compare and contrast the basic ethical values underpinning national health care policies in the United States and Canada. We use the framework of ethical theory to name and elaborate ethical values and to facilitate moral reflection about health care reform. Section one describes historical and contemporary social contract theories and clarifies the ethical values associated with them. Sections two and three show that health care debates and health care systems in both countries reflect (...) the values of this tradition; however, each nation interprets the tradition differently. In the U.S., standards of justice for health care are conceived as a voluntary agreement reached by self-interested parties. Canadians, by contrast, interpret the same justice tradition as placing greater emphasis on concern for others and for the community. The final section draws out the implications of these differences for future U.S. and Canadian health care reforms. (shrink)

Resources for Feminist Research, Vol. 3, No. 4, pp. 44-45, 1985 In this brief article, written in 1984 and published the following year, Lucinda Vandervort sets out a comprehensive agenda for enforcement of sexual assault laws in Canada. Those familiar with her subsequent writing are aware that the legal implications of the distinction between the “social” and “legal” definitions of sexual assault, identified here as crucial for interpretation and implementation of the law of sexual assault, are analyzed at length in (...) “Mistake of Law and Sexual Assault: Consent and Mens Rea” (1986), published at (1987-88) 2(2) Canadian Journal of Women and the Law, 233 309. In that article the author argued that most mistakes about consent are not mistakes about a “fact” that may sometimes negative mens rea, but are actually mistakes about the law that afford accused no excuse under either Canadian common law or statutory criminal law. She argued further that consent must be interpreted as “voluntary agreement” and must be affirmatively and unequivocally communicated in order to operate as an effective waiver of a person’s legal right to be free from interference with his or her bodily integrity. That article was a central reference point in the consultations leading to the 1992 amendments to the sexual assault provisions in the Canadian Criminal Code and in some key decisions by the Supreme Court of Canada in sexual assault cases in the 1990’s. As a result of a gradual transformation of theoretical analysis of the law of mens rea and consent in Canada, culpable awareness is now understood by many jurists and criminal law theorists quite differently than it was twenty-five years ago. As Vandervort acknowledged in her 1984 Agenda for Action, however, clarity in legal theory and legal doctrine is no guarantee of how sexual assault laws will operate in practice. Theory and practice, doctrine and its implementation, often diverge. This phenomenon is still seen in some decisions taken at the trial, pre-trial, and pre-charge stages in sexual assault cases. Police, prosecutors, and many trial judges, like accused, may often be influenced by traditional attitudes about sexual consent and mistaken about the law of consent. Accordingly, in her recent work Vandervort re-visits and re-examines the exercise of discretion by police, prosecutors, and the judiciary. An example is her 2009 article “Legal Subversion of the Criminal Justice Process? Judicial, Prosecutorial and Police Discretion in R. v. Edmondson, Kindrat and Brown” in Sexual Assault Law, Practice & Activism in a Post-Jane Doe Era, edited by Elizabeth Sheehy (Ottawa: University of Ottawa Press, 2012). In this and some of her other recent work, the distinctions between social and legal norms and questions of fact and law, previously analyzed with the objective of clarifying the law, are used to control the effects of social ignorance and partiality in the handling of sexual assault complaints by decision-makers in the criminal justice system at trial and pre-trial. Lucinda Vandervort’s published and unpublished legal and philosophical writings on sexual assault and sexual assault law illustrate the development of a socio-legal scholar’s “Agenda for Action” into a principled, pragmatic, open-ended exercise in “institutional design.” Across two centuries, from the revolutionary era of the 18th century to the present, other radical egalitarians would recognize both the impetus for the project and many features of the political and cultural resistance to it. (shrink)

The implication intended by the title is that there are elements ofjustice that are required and others that are desirable but not morally required. That is one of the views for which I have argued. The elements of justice that are morally required, and to which an individual has a right, are three. 1. Reciprocity.-A person, whether in or outside of a society, is justified in insisting, unless a voluntary agreement supersedes, that there be a balance between the (...) value of what he gives and the value of what he gets. 2. Conditional equality.-If a society distributes a good or acts in such a way as to affect distribution, one is justified in insisting that he be presumed to be equal to everyone else. 3. Certain elements of welfare. -A person is justified in insisting that a social collective on which he is dependent support deficiencies in his welfare that are attributable to his being a victim of the economic life of the collective. (shrink)

The european steel crisis is due to the steel production overcapacity in regard of a decline in demand, leading to a fierce price competition, with prices 15 to 20 % lower than in the USA and Japan. Measures were taken by the Commission of the European Communities and by the steel companies, consisting of imposing or proposing selling prices, limiting the deliveries, reducing import from third countries, closing down obsolete capacities, increasing productivity. Moreover, most governments have granted financial aid.In the (...) second half of 1980, the market situation has deteriorated rapidly, which fact has led the Council of the European Communities to adopt Art. 58 of the ECSC-Treaty and to set obligatory production quotas. This has proved not to be sufficient. There is a strong tendency within the Commission towards a drastic reduction of overcapacity,as well as a decrease in state aid, the latter being considered as only allowed temporarily as a means of achieving the necessary restructuring and capacity reduction.It can be expected that, given the dramatic market situation, these measures wilt effectively be put into practice in the period to come. At the same time, voluntary agreements concerning production and prices are being discussed among steel producers. (shrink)

Policyholders and other claimants in insurance companies are interested in solidity, i.e., the ability of insurers to meet their claims obligations in both the short run and the long run. Insurance regulators exist in order to represent the interests of consumers. Great emphasis is placed by the regulators of the market on the mandatory and uniform disclosure of relevant financial and operating aspects of insurers. This paper employs simple gametheoretic techniques to address two aspects of the general issue of the (...) desirability of establishing a regulator to assess the solidity of insurers. First, why would uniform information about insurers be desirable? Given that uniformity is desirable, it could be achieved by voluntary agreement of insurers or via regulation. The second issue is how that uniformity is to be achieved; that is, what is the value of a regulator in achieving uniformity? Insurance provides an interesting instance of the general problem. A key determinant is the structure of costs and benefits of securing voluntary agreements across firms. (shrink)

There seems to be widespread agreement that to be responsible for something is to be deserving of certain consequences on account of that thing. Call this the “merited-consequences” conception of responsibility. I think there is something off, or askew, in this conception, though I find it hard to articulate just what it is. The phenomena the merited-consequences conception is trying to capture could be better captured, I think, by noting the characteristic way in which certain minds can rightly matter (...) to other such minds—the way in which certain minds can carry a certain kind of importance, made manifest in certain sorts of responses. Mattering, not meriting, seems to me central. However, since I cannot yet better articulate an alternative, I continue in the merit-consequences framework. I focus on a particular class of consequences: those that are non-voluntary, in a sense explained. The non-voluntariness of these reactions has two important upshots. First, questions about their justification will be complex. Second, they are not well thought of as consequences voluntarily imposed upon the wrongdoer by the responder. By focusing on merited consequences and overlooking non-voluntariness, we risk misunderstanding the significance of moral criticism and of certain reactions to moral failure. (shrink)

There is widespread agreement that it would be both morally and legally wrong to treat a competent patient, or to carry out research with a competent participant, without the voluntary consent of that patient or research participant. Furthermore, in medical ethics it is generally taken that that consent must be informed. The most widely given reason for this has been that informed consent is needed to respect the patient’s or research participant’s autonomy. In this article I set out (...) to challenge this claim by considering in detail each of the three most prominent ways in which ‘autonomy’ has been conceptualized in the medical ethics literature. I will argue that whilst these accounts support the claim that consent is needed if the treatment of competent patients, or research on competent individuals, is to respect their autonomy, they do not support the claim that informed consent is needed for this purpose. (shrink)

Consent, in terms of voluntary choice, is - or, at least, appears to be or purports to be - at the essence of contract law. Contract law, both in principle and in practice, is about allowing parties to enter arrangements on terms they choose - each party imposing obligations on itself in return for obligations another party has placed upon itself. This freedom of contract- an ideal by which there are obligations to the extent, but only to the extent, (...) freely chosen by the parties - is contrasted to the duties of criminal law and tort law, which bind all parties regardless of consent. At the same time, consent, in the robust sense expressed by the ideal of freedom of contract, is arguably absent in the vast majority of the contracts we enter these days, but its absence does little to affect the enforceability of those agreements. Consent to contractual terms often looks like consent to government: present, if at all, only under a fictional (as if) or attenuated rubric. This article explores a variety of topics relating to consent, and the role it plays in contract law doctrine and theory. The article begins by a brief examination of the nature of consent, then turns to contract doctrines that turn on the alleged absence of consent (e.g., duress and undue influence); contract rules and principles (e.g., implied terms) that turn on hypothetical consent; the challenges to consent that arise from electronic contracting and bounded rationality, and theories of contract law that emphasize consent. (shrink)

Moral enhancements aim to morally improve a person, for example by increasing the frequency with which an individual does the right thing or acts from the right motives. Most of the applied ethics literature on moral enhancement focuses on moral bioenhancement – moral enhancement pursued through biomedical means – and considers examples such as the use of drugs to diminish aggression, suppress implicit racial biases, or amplify empathy. A number of authors have defended the voluntary pursuit of moral bioenhancement, (...) or the development of technologies that would enable it. They have highlighted the need for humans to morally improve themselves in order to address moral failures such as the oppression of women, the mistreatment of animals, and anthropogenic climate change. They have also emphasised the moral similarities between moral bioenhancement and more familiar forms of moral enhancement, such as that achieved through childhood education, introspective reflection, and engagement with literature. Critics of moral enhancement have argued that it may undermine our freedom to ‘fall’ (i.e. be immoral), and therefore our moral agency, or exacerbate the domination of individuals by political authorities. They have also questioned the potential for biomedical interventions to produce the deepest and most valuable forms of moral improvement, and have highlighted the risks that technologies for moral bioenhancement might misfire or be intentionally misused, thereby producing moral deterioration. Underlying some of these worries is the observation that there is little agreement on which psychological transformations would constitute moral improvements, and in which contexts. Defenders of moral enhancement have made various proposals for resolving or side-stepping these disagreements, but it remains unclear how far these proposals can take us beyond establishing consensus on the worst types of moral failure. (shrink)

Three strategies for developing just and consistent global business practices are examined: 1) international treaties and agreements, 2) global codes of business conduct, and 3) voluntary self-restraint. International agreements investigated are: NAFTA, Global Warming Treaty, OECD Anti-Bribery Treaty and Infant Formula Agreement. The codes examined are the Caux Round Table’s Principles for Business, The Global Sullivan Principles and The United Nations Global Compact with Business. Each of these three strategies is probed for its relative strengths and weaknesses, and (...) its prospects for developing ethical business practices—especially in the areas of improving the environment, human rights and working conditions. (shrink)

Three strategies for developing just and consistent global business practices are examined: 1) international treaties and agreements, 2) global codes of business conduct, and 3) voluntary self-restraint. International agreements investigated are: NAFTA, Global Warming Treaty, OECD Anti-Bribery Treaty and Infant Formula Agreement. The codes examined are the Caux Round Table’s Principles for Business, The Global Sullivan Principles and The United Nations Global Compact with Business. Each of these three strategies is probed for its relative strengths and weaknesses, and (...) its prospects for developing ethical business practices—especially in the areas of improving the environment, human rights and working conditions. (shrink)

The concept of adversariality, like that of argument, admits of significant variation. As a consequence, I argue, the question of adversarial argument has not been well understood. After defining adversariality, I argue that if we take argument to be about beliefs, rather than commitments, then two considerations show that adversariality is an essential part of it. First, beliefs are not under our direct voluntary control. Second, beliefs are costly both for the psychological states they provoke and for the fact (...) that they are causally related to our actions. As a result, argument involving agreement can also be understood to be adversarial. (shrink)

Background Informed consent is often cited as the “cornerstone” of research ethics. Its intent is that participants enter research voluntarily, with an understanding of what their participation entails. Despite agreement on the necessity to obtain informed consent in research, opinions vary on the threshold of disclosure necessary and the best method to obtain consent. We aimed to investigate Australian researchers’ views on, and their experiences with, obtaining informed consent. Methods Semi-structured interviews were conducted with 23 researchers from NSW institutions, (...) working in various fields of research. Interviews were analysed and coded to identify themes. Results Researchers reported that consent involved information disclosure, understanding and a voluntary decision. They emphasised the variability of consent interactions, which were dependent on potential participants’ abilities and interests, study complexity and context. All researchers reported providing written information to potential participants, yet questioned the readability and utility of this information. The majority reported using signed consent forms to ‘operationalise’ consent and reported little awareness of, and lack of support in implementing more dynamic informed consent procedures, such as verbal informed consent, that was fit for the purposes of their studies. Views on Human Research Ethics Committees varied. Some reported inconsistent, arduous inputs on the information form and consent process. Others expressed reliance on HRECs for guidance, viewing them as institutional safeguards. Conclusions This study highlights the importance of transparent relationships, both between researchers and participants, and between researchers and HRECs. Where the relationship with study participants was reported as more robust, researchers felt that they were better able to ensure participants made better, more informed decisions. Where the relationship with HRECs was reported as more robust, researchers were more likely to view them as institutional safeguards, rather than as bureaucratic hindrances. Conscientious and mindful researchers are paramount to ensuring the procedure accommodates individual requirements. This study advocates that when designing ethical informed consent practices, researchers should be integrated as autonomous players with a positive input on the process, rather than, in the worst case, predatory recruiters to be curtailed by information forms and oversight. (shrink)

Some contend that in the absence of a world state, it is nonsense to speak of the principles of distributive justice. Thomas Nagel is among those who claim that the principles of social justice can only be effectively applied after a world state is established. Nagel supports this claim on the basis of the social contract theory; namely, that a coercive collective authority is necessary to secure obedience to the principles of justice. In this essay, I argue that a world (...) state is neither necessary nor sufficient to fulfill the requirements of social justice among nations. There are good reasons for doubting the efficiency of a world state in satisfying the principles of global distributive justice. Also, there are alternative ways of executing these principles through nation-states on the basis of international agreements or through voluntary international organizations. (shrink)

Miller analyzes the relationship between consent and autonomy by offering three pictures. For autonomy, Miller distinguishes between procedural, substantive, and weak substantive autonomy. The corresponding views of consent are what Miller has termed as consensual minimalism, consensual idealism, and consensual realism. The requirements of sexual consent under consensual minimalism are a voluntary informed agreement. However, feminist critiques reveal the inadequacies of this simple position. Consensual idealism, which corresponds with substantive autonomy, offers a robust picture where consent and autonomy (...) must be based on non-oppression. However, this view is considered too ideal and it ignores context. Weak substantive autonomy takes into account the context in the sexual domain. Correspondingly, consensual realism takes into account the context and still fulfills the requirements of consent. (shrink)

There is a fault line running through classical liberalism as to whether or not democratic self-governance is a necessary part of a liberal social order. The democratic and non-democratic strains of classical liberalism are both present today—particularly in America. Many contemporary libertarians and neo-Austrian economists represent the non-democratic strain in their promotion of non-democratic sovereign city-states (startup cities or charter cities). We will take the late James M. Buchanan as a representative of the democratic strain of classical liberalism. Since the (...) fundamental norm of classical liberalism is consent, we must start with the intellectual history of the voluntary slavery contract, the coverture marriage contract, and the voluntary non-democratic constitution (or pactum subjectionis). Next we recover the theory of inalienable rights that descends from the Reformation doctrine of the inalienability of conscience through the Enlightenment (e.g., Spinoza and Hutcheson) in the abolitionist and democratic movements. Consent-based governments divide into those based on the subjects' alienation of power to a sovereign and those based on the citizens' delegation of power to representatives. Inalienable rights theory rules out that alienation in favor of delegation, so the citizens remain the ultimate principals and the form of government is democratic. Thus the argument concludes in agreement with Buchanan that the classical liberal endorsement of sovereign individuals acting in the marketplace generalizes to the joint action of individuals as the principals in their own organizations. (shrink)

Corporate social responsibility was historically a business-oriented idea that companies should voluntarily improve their social and environmental practices. More recently, CSR has increasingly attracted governments’ attention, and is now promoted in public policy, especially in the European Union. Conflicts can arise, however, when advanced welfare states introduce CSR into public policy. The reason for such conflict is that CSR leaves key public welfare issues to the discretion of private business. This voluntary issue assignment contrasts starkly with advanced welfare states’ (...) traditions favoring negotiated agreements and strong regulation to control corporate conduct. This article analyzes the conflicts and compatibilities arising when advanced welfare states introduce CSR, focusing on how the two traditions diverge and on how conflicts are reconciled. Empirically the study focuses on four Nordic countries—Denmark, Finland, Norway, and Sweden—widely recognized as the most advanced welfare states, and increasingly as leaders in CSR public policy. From interviews of 55 officials of government ministries, nongovernmental organizations, labor unions, and employer associations, the authors conclude that tension indeed exists between CSR public policies and advanced welfare state traditions in all four countries. Whereas CSR’s aims are compatible with Nordic institutional traditions, the means promoted in CSR is in conflict with such Nordic traditions as corporatist agreements and rights-based welfare state regulation of social and environmental issues. There is harmony of goals, but conflict in means between the four Nordic countries studied. (shrink)

Organ donation after cardiac or circulatory death (DCD) has been introduced to increase the supply of transplantable organs. In this paper, we argue that the recovery of viable organs useful for transplantation in DCD is not compatible with the dead donor rule and we explain the consequential ethical and legal ramifications. We also outline serious deficiencies in the current consent process for DCD with respect to disclosure of necessary elements for voluntary informed decision making and respect for the donor's (...) autonomy. We compare two alternative proposals for increasing organ donation consent in society: presumed consent and mandated choice. We conclude that proceeding with the recovery of transplantable organs from decedents requires a paradigm change in the ethics of organ donation. The paradigm change to ensure the legitimacy of DCD practice must include: (1) societal agreement on abandonment of the dead donor rule, (2) legislative revisions reflecting abandonment of the dead donor rule, and (3) requirement of mandated choice to facilitate individual participation in organ donation and to ensure that decisions to participate are made in compliance with the societal values of respect for autonomy and self-determination. (shrink)

The ethics review of qualitative health research poses various challenges that are due to a mismatch between the current practice of ethics review and the nature of qualitative methodology. The process of obtaining ethics approval for a study by a research ethics committee before the start of a research study has been described as “procedural ethics” and the identification and handling of ethical issues by researchers during the research process as “ethics in practice.” While some authors dispute and other authors (...) defend the use of procedural ethics in relation to qualitative health research, there is general agreement that it needs to be supplemented with ethics in practice. This article aims to provide an illustration of research ethics in practice by reflecting on the ways in which we identified and addressed ethical and methodological issues that arose in the context of an interview study with mental health service users and relatives. We describe the challenges we faced and the solutions we found in relation to the potential vulnerability of research participants, the voluntariness of consent, the increase of participant access and the heterogeneity of the sample, the protection of privacy and internal confidentiality, and the consideration of personal and contextual factors. (shrink)

Introduction:Prehospital emergency medicine is a specific field of emergency medicine. The basic approach of prehospital emergency medicine is to provide patients with medical intervention at the scene of the incident. This special environment causes health professionals to encounter various problems. One of the most important problems in this field is ethics, in particular questions involving refusal of treatment and the processes associated with it.Objective:The objective of this study is to identify emergency health professionals’ views regarding refusal of treatment.Methods:This study was (...) conducted with 356 health professionals who were on active duty in prehospital emergency health services. The data were collected through a form which included 10 statements. The participants were asked to indicate their level of agreement with the statements given by rating them between 0 and 10.Ethical considerations:Before conducting the research, permission was received from the local ethics committee. Participants were given written information about the purpose of the study. Participants were assured that their participation was voluntary.Results:The healthcare professionals with fewer years of experience in the profession and female participants adopted an attitude of giving priority to providing care. Young participants, in general, respected patient autonomy. However, paradoxically, when it comes to emergency medical cases, they expressed an opinion closer to paternalism.Conclusions:This study has found that prehospital emergency health professionals generally respect the patient’s right to refuse treatment; however, they do not prioritize this right when there is a life-threatening situation or when the person does not have decision-making capacity. In these cases, prehospital emergency health professionals tended to adopt a more paternalistic approach. (shrink)

This article begins with a detailed analysis of how the choice situation of a social contract for international business ethics can be constructed and justified. A choice situation is developed by analyzing conceptions of the multinational firm and the domain of international business. The result is a hypothetical negotiation between two fictional characters, J. Duncan Grey and Elizabeth Redd, who respectively represent the interests of businesses and communities seeking to engage in international trade. The negotiators agree on ethical principles governing (...) wages, the environment, and compliance social and cultural norms. These principles are then shown to rest in wide reflective equilibrium with considered moral judgments on international business ethics, which are drawn from international agreements, such as the UN Declaration on Human Rights, and voluntary business initiatives, such as the Global Sullivan Principles and the UN Global Compact. (shrink)

Since the beginning of the new millennium, initiatives known as roundtables have been developed to create voluntary sustainability standards for agricultural commodities. Intended to be private and voluntary in nature, these initiatives claim their legitimacy from their ability to ensure the participation of all categories of stakeholders in horizontal participatory and inclusive processes. This article characterizes the political and material instruments employed as the means of formulating agreement and taking a variety of voices into consideration in these (...) arenas. Referring to the specific case of the “Roundtable on Sustainable Palm Oil”, I undertake a detailed analysis of the tensions relating to different forms of participation, which create a gap between “local minority voices” and international stakeholders—either non-governmental organizations or industries. Local communities and small-scale farmers face difficulties when making their voices heard in the form of debate proposed. Firstly, some participants attempt to re-impose a vertical hierarchical relationship between small-scale farmers or affected communities and company managers/directors in order to deprive the former of their powers of representation and of being able to transform reality. Secondly, the liberalism of interest groups in the roundtable accords value to experts, global knowledge, strategy, and detachment, at the expense of other capabilities of rooted or attached people who come to defend their real lives with a desire to raise critical issues of injustice. In this context, I highlight the capacity of local NGOs to relieve some of those tensions and to help locally affected communities and small-scale farmers introduce public stages for debates, by accommodating other forms of participation apart from the liberal one. By being close to and by restoring their dignity through a specific work of solicitude and care, local NGOs prepare affected people for public speaking. (shrink)

BackgroundUse of modified texture diets—thickening of liquids and modifying the texture of foods—in the hope of preventing aspiration, pneumonia and choking, has become central to the current management of dysphagia. The effectiveness of this intervention has been questioned. We examine requirements for a valid informed consent process for this approach and whether the need for informed consent for this treatment is always understood or applied by practitioners.Main textValid informed consent requires provision of accurate and balanced information, and that agreement (...) is given freely by someone who knows they have a choice. Current evidence, including surveys of practitioners and patients in different settings, suggests that practice in this area is often inadequate. This may be due to patients’ communication difficulties but also poor communication—and no real attempt to obtain consent—by practitioners before people are ‘put on’ modified texture diets. Even where discussion occurs, recommendations may be influenced by professional misconceptions about the efficacy of this treatment, which in turn may poison the well for the informed consent process. Patients cannot make appropriate decisions for themselves if the information provided is flawed and unbalanced. The voluntariness of patients’ decisions is also questionable if they are told ‘you must’, when ‘you might consider’ is more appropriate. Where the decision-making capacity of patients is in question, inappropriate judgements and recommendations may be made by substitute decision makers and courts unless based on accurate information.ConclusionResearch is required to examine the informed consent processes in different settings, but there is ample reason to suggest that current practice in this area is suboptimal. Staff need to reflect on their current practice regarding use of modified texture diets with an awareness of the current evidence and through the ‘lens’ of informed consent. Education is required for staff to clarify the importance of, and requirements for, valid informed consent and for decision making that reflects people’s preferences and values. (shrink)

Soldiers sign contracts to obey lawful orders; they also swear oaths to this end. The enlistment contract for the Armed Forces of the United States combines both elements: -/- '9a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be: (1) Required to obey all lawful orders and perform all assigned duties … (4) Required upon order to serve in combat or other hazardous situations.' -/- We standardly (...) think that these oaths and contracts give soldiers new moral reasons to fight. Many also think that soldiers who are ordered to fight by legitimate states have moral reasons to obey those orders, just in virtue of their provenance. -/- We generate these reasons through our voluntary decisions—to sign the contract or swear the oath; to form the institutions and give the orders. They are therefore additional moral reasons, on top of the reasons that we have prior to those voluntary decisions. Simply because they are additional, these reasons seem limited in force and scope. In particular, they arguably cannot override pre-existing commitments. For example, if I already have a duty not to kill an innocent person, my promising to breach that duty seems irrelevant to whether doing so is permissible. Similarly for orders issued by legitimate states: the citizens of a legitimate state have pre-existing moral reasons not to kill the innocent; by what alchemy could their state's orders allow combatants to override those reasons? If additional reasons could make prohibited acts permissible, as Sidgwick observed, ‘we could evade any moral obligation by promising not to fulfil it, which is clearly absurd’ (Sidgwick 1981). -/- We might conclude that the contracts soldiers sign, the oaths they take and the orders they receive have weight only when they pertain to acts that soldiers are already allowed to do. Perhaps these additional reasons can require actions that would otherwise be merely permissible, but they cannot license otherwise prohibited actions. If this is right, then it radically limits the relevance of contracts, oaths and authority to the ethics of war, since almost all conflicts involve soldiers breaching some pre-existing moral duties. -/- This is obviously true for soldiers fighting on the unjust side in a war, since almost all the killing they do is unjust. But in all actual wars soldiers on the just side also kill at least some innocent victims, whether as part of an unjust subordinate aim, as ‘collateral damage’, or simply because their adversaries are not sufficiently responsible for unjustified threats to be liable to be killed. If additional reasons cannot make otherwise prohibited acts permissible, then they are practically irrelevant to the ethics of killing in war, at least in this sense: if fighting is impermissible without regard to the contract, oath and authority of their state, then fighting is simply impermissible. -/- This is a tempting conclusion. In this paper, however, I argue that even if it is true at the level of objective permissibility, it is false for subjective permissibility. And since subjective permissibility is where (at least some of) the action is in the ethics of war, this is a significant result. I explain first why additional reasons can make otherwise subjectively prohibited acts permissible, then why just war theorists should care more than they seem to about subjective permissibility. Although I focus throughout on the ethics of war, my arguments generalise to all kinds of additional reasons. (shrink)