Surgical innovation involves practices, such as new devices, technologies, procedures, or applications, which are novel and untested. Although innovative practices are believed to offer an improvement on the standard surgical approach, they may prove to be inefficacious or even dangerous. This article considers how surgeons considering innovation should reason in the conditions of uncertainty that characterize innovative surgery. What attitude to the unknown risks of innovative surgery should they take? The answer to this question involves value judgments about the acceptability (...) of risk taking when satisfactory scientific information is not available. This question has been confronted in legal contexts, where risk aversion in the form of the precautionary principle has become increasingly influential as a regulatory response to innovative technologies that pose uncertain future hazards. This article considers whether it is appropriate to apply a precautionary approach when making decisions about innovative surgery. (shrink)

This book is a contribution both to analytical philosophy of mind, and to Marxist philosophy. Marxists see pervasive irrationality in the conduct of human affairs, and claim that people in a class-divided society are prone to a variety of misconceptions. They say that we can suffer from "false consciousness" in our views about what inspires our behavior and in our judgments as to what is good for us. Meyerson uses the techniques of analytic philosophy to investigate this picture and argues (...) that Marxism is committed to the idea of motivated belief, and that the idea is philosophically defensible. She shows that there are other philosophically defensible claims which are congenial to Marxism: that there are facts about interests, that interests are not based on wants, that a desire can be contaminated by its history, that our judgments about our interests do not automatically motivate us, and that beliefs can survive the evidence that they are false. Meyerson throws light on puzzling psychological phenomena which confront everyone in their everyday political experience. (shrink)

This article considers the issue of expanded access to innovative treatments in the context of recent legislative initiatives in the United Kingdom and the United States. In the United Kingdom, the supporters of legislative change argued that the common law principles governing medical negligence are a barrier to innovation. In an attempt to remove this perceived impediment, two bills proposed that innovating doctors sued for negligence should be able to rely in their defence on the fact that their decision to (...) innovate was “responsible.” A decision to innovate would be regarded as responsible if it followed a specified process. Although these changes to the law of medical negligence were not passed, this article argues that the idea of a process-based approach was sound. In the United States, a number of states have passed “Right to Try” laws that permit doctors to prescribe and companies to provide investigational products without the need for FDA approval. These laws do not purport to and nor are they able to alter the obligations of individuals and companies under federal law. They are consequently unlikely to achieve their stated aim of expanding access to investigational products. This article argues that they nevertheless have a cogent rationale in so far as they highlight the need for rights-based reform to federal regulations governing access. (shrink)

Demands for access to experimental therapies are frequently framed in the language of rights. This article examines the justifiability of such demands in the specific context of surgical innovations, these being promising but non-validated and potentially risky departures from standard surgical practices. I argue that there is a right to access innovative surgery, drawing analogies with other generally accepted rights in medicine, such as the right not to be forcibly treated, to buy contraceptives, and to choose to have an abortion, (...) including a post-viability abortion where the mother's life or health is threatened by the pregnancy. I argue that we accept these rights because we believe that people are entitled to try to preserve their lives and health and to make choices of an important and intensely personal kind, and I suggest that a person's choice of medical treatment should be seen in the same light. However, since few rights are absolute, I also consider the circumstances in which it may be justifiable to limit the right to access innovative surgery. In discussing this question, I apply the human rights standard of proportionality, comparing the importance of the reasons for limiting the right with the severity of the invasion on liberty. (shrink)

This article considers procedural justice in the law, with specific reference to the adjudicative context of governmental officials applying legal standards to particular cases. We critically survey the three main accounts of procedural justice in the literature: utilitarian, outcome‐based, and dignitarian. Utilitarian and outcome‐based theories share the instrumental view that the only purpose of procedures is to lead to accurate legal outcomes. However, the former are willing to trade off the benefits of accuracy against its costs, whereas the latter hold (...) that procedural rights are necessary to guard against the injustice caused when individuals' legal rights are mistakenly denied. Dignitarian theories maintain that process matters apart from outcomes, because procedures should show respect for individuals' dignity in the Kantian sense of rational agency. We present a new perspective, drawing on relational theory. Relational theory holds that we are social creatures whose self‐identities and sense of self‐respect are bound up with the quality of our relationships with other individuals, groups, and institutions. Our relational account is informed by empirical research in social psychology which has found that people's evaluation of procedures is substantially influenced by relational concerns. (shrink)

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and (...) other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice. (shrink)

The aim of the paper is to provide a philosophical account of our sense that some people are more their own person than others. I begin by exposing the weaknesses in three possible accounts, which I label the "interventionist", the "existentialist" and the "ideal" accounts. I then go on to argue that the distinguishing feature of those who are their own person is that their natural inclinations are accurately expressed in their behaviour.

Australian bills of rights are confined to the protection of civil and political rights. Economic, social and cultural rights were deliberately excluded from their coverage. This article draws on United Kingdom, Canadian and South African judgments with the aim of showing that the equality guarantees contained in these instruments can nevertheless be used as a vehicle for socio-economic claims. It further argues that there are sound moral and philosophical reasons that justify this approach.

Jurisprudence explores fundamental questions about law and justice from a philosophical and theoretical perspective. Rather than merely describing the field, the book provides rigorous evaluation of jurisprudential arguments and explains in clear, accurate and accessible terms, the complex and cutting-edge debates which define the field of contemporary jurisprudence.

Jurisprudence is an accessible and engaging text that brings alive the key concepts of this complex and often difficult subject. Covering all the traditional schools of thought, Jurisprudence first examines the issues then discusses the responses of theorists and their competing positions so that readers can relate the theories to everyday situations. The text also tackles the fluid nature of the subject, helping readers to understand how jurisprudence is constantly being modified and refined by contemporary theorists.

The idea that the exercise of state power should be limited so as to permit free choice in matters of personal conduct has been central to liberalism ever since John Stuart Mill defended the harm principle. However, this surface agreement conceals deeper disagreements. One disputed matter relates to the nature of the tolerant state: is it a state that refrains from improving our moral character by coercive means is it a state that takes no interest whatsoever in the moral character (...) of our lives? A second matter relates to the philosophical justification of tolerance. Should it be justified by relying on distinctively liberal values, such as personal autonomy and self-determination? Or is a less controversial justification available — one that can be endorsed by non-liberals as well as liberals? This article explores these issues. It examines the views of Ronald Dworkin, John Rawls and Joseph Raz, arguing that Rawls?s version of liberalism provides both the best conception and the best justification of the liberal ideal of tolerance. (shrink)

Most bills of rights allow for the restriction of rights in the interests of the public. But how should courts decide when the public interest should prevail? This article draws on philosophical work on practical reasoning to argue against the popular view that courts should use a balancing test which weighs the consequences of protecting the right against the consequences of restricting it. It argues that there are good reasons to 'overprotect' rights: judges, in their reasoning, should assign more weight (...) to rights and less weight to the public interest than they would on an application of the balancing model. (shrink)