This book explores and elaborates three theories of public reason, drawn from Rawlsian political liberalism, natural law theory, and Confucianism. Drawing together academics from these separate approaches, the volume explores how the three theories critique each other, as well as how each one brings its theoretical arsenal to bear on the urgent contemporary debate of medical assistance in dying. The volume is structured in two parts: an exploration of the three traditions, followed by an in-depth overview of the conceptual and (...) historical background. In Part I, the three comprehensive opening chapters are supplemented by six dynamic chapters in dialogue with each other, each author responding to the other two traditions, and subsequently reflecting on the possible deficiencies of their own theories. The chapters in Part II cover a broad range of subjects, from an overview of the history of bioethics to the nature of autonomy and its status as a moral and political value. In its entirety, the volume provides a vibrant and exemplary collaborative resource to scholars interested in the role of public reason and its relevance in bioethical debate. (shrink)
T. M. Scanlon’s contractualism is a meta-ethical theory that explains moral motivation and also provides a conception of how to carry out moral deliberation. It supports non-consequentialism – the theory that both consequences and deontological considerations are morally significant in moral deliberation. Regarding the issue of punishment, non-consequentialism allows us to take account of the need for deterrence as well as principles of fairness, justice, and even desert. Moreover, Scanlonian contractualism accounts for permissibility in terms of justifiability: An act is (...) permissible if and only if it can be justified to everyone affected by it. This contractualist thesis explains why it is always impermissible to frame an innocent person, why vicarious punishment is impermissible, and why there has to be a cap on sentences. Contractualism therefore allows us to take deterrence as a goal of punishment without the excess of utilitarianism. This paper further argue that the resulting view is superior to pure retributivism. Finally, it shows why legal excuses and mitigation can be justified in terms of the notion of negative desert. (For access to this paper: http://www.tandfonline.com/eprint/sJ2JBVXkztyFMGmxS7tS/full ) . (shrink)
This paper examines whether physician-assisted suicide is morally permissible, and whether it should be legalised in the sense that those seeking or performing such procedure will be immune from prosecution. The issues of moral and legal permissibility1 are closely connected. One way to argue for the permissibility of PAS is grounded in the argument that a patient has the right to refuse life-saving equipment, or to have it withdrawn,2 and then to further argue that there is no relevant distinction between (...) refusal/withdrawal and PAS, if the patient consents. This is essentially the argument raised in “The Philosophers’ Brief ”, filed by six distinguished philosophers. However, this argument has been soundly criticised. Frances Kamm points out that the general claim on which Dworkin et al. rely—that there is no moral difference per se between killing and letting die—is false. This is because a patient has the right to refuse treatment even when this is against his interest because the alternative would be forced treatment, but it is not true to say that a patient has the right to PAS even when it is against his interest. Also at issue is the Doctrine of Double Effect, according to which there is a moral distinction between an action that is intended to cause death and one that is merely foreseen to cause death. [End Page 224] In section I of this paper, I shall argue against DDE, which purports to disallow PAS but not refusal/withdrawal. I shall argue that since it is permissible for a physician to prescribe morphine to a patient suffering excruciating pain, it is also permissible for her to prescribe such a drug to a patient suffering pain, with the intention that he be killed and hence relieved of the suffering. The grounds on which I rely is the thesis that intention is irrelevant to permissibility, as proposed by Judith Thomson and T.M. Scanlon. In section II, I shall discuss David Velleman’s argument that termination of life is morally impermissible. I proceed to examine in section III the theoretical version of the Slippery Slope Argument. In section IV, I shall consider the practical version of the Slippery Slope Argument. In section V, I shall discuss other consequentialist objections to the legalisation of PAS. In the final section, I shall consider the view that even if PAS is morally permissible, it does not follow that it should be legalised. The argument I consider is the consequentialist one that legalising PAS may have a very different significance—when we consider the total consequences—than if there is only a single act of PAS, considered in isolation. While I agree that consequences are generally very important, I shall argue that we should approach the issue from a contractualist rather than a utilitarian perspective.3. (shrink)
Tristram Engelhardt, Jr. offers erudite and compelling arguments for the view that all families should try to realize the traditional family. Although I tend to agree with him from my personal standpoint, I doubt that this view can be justified to those with whom we are in reasonable disagreement about the family. I make three critical points. First, though Engelhardt stops short of saying that the state should encourage people to form traditonal families, or discourage those who do not, some (...) state perfectionists might do so. From the perspective of public reason, it is unjust for the state to favor some conceptions of the good over others, if these conceptions are all reasonable. Moreover, those whose conceptions of the good are not favored would feel that they are disrespected. Second, insofar as Engelhardt thinks that all families should try to realize the traditional families, the traditional family would not be a good to those who do not like children. Moreover, it would be difficult to persuade those who have decided not to have children for reasons of career, burden, or more altruistic concern. Third, against Engelhardt’s stance against the “egalitarian aspirations” of liberalism, I argue that too often women sacrifice their possible careers for the sake of the family, even should they hold advanced degrees from prestigious universities, or professional qualifications. This kind of injustice is too uncomfortable to ignore. (shrink)
I argue that "quality of life" can be understood in three main ways: as purchasing power, together with social and political goods; as the subjective state of mind: happiness; happiness as related to the meaningfulness of one's profession or cause.
I offer some reasons for the theory that, compared with human beings, non-human animals have some but lesser intrinsic value. On the basis of this theory, I first argue that we do not know how to compare an animal's claim to be free from a more serious type of harm, and a human's claim to be free from some lesser type of harm. For we need to take account of these parties' intrinsic value, and their competing types of claim. Yet, (...) there exists no known way for making such comparison, when a human's intrinsic value is higher than that of an animal, whereas the type of claim an animal has is morally weightier than the type of claim a human has. Second, I explain why utilitarianism is unhelpful in making such comparison. Third, in the case where some animals can be sacrificed for saving a larger number of humans, it is crucial to ask whether animals have the right to life, and I argue that this question is more perplexing than we might think. My conclusion is that the various difficulties mentioned above have a deeper source than we have so far acknowledged, and that this reflects that the moral reality is less tidy and more complex than many theories portray. (shrink)
The fact that half of the world is ruled under the banner of Marxism and that there were no easily comprehensible and thorough studies of Marxist theory of law makes it worth investigating in some detail whether there is a Marxian theory of law, and, if so, what a Marxian theory of law would be like. Although Marx's and Engels' writings broadly relevant to law amount to some two hundred pages, it is clear that in these writings neither Marx nor (...) Engels has put forward anything like a theory of law. If there is a Marxian theory of law to be discovered, it would have to be extracted, extrapolated and reconstructed from these writings. ;The reconstruction undertaken here has turned out to be fruitful. It seeks to demystify and explain the phenomenon of law. It is argued that one major function of law is to promote and stabilize the economic realm of society, and that law exists in order that the economic realm can be developed. And hence the various features of law as a whole are to be explained functionally by the needs and dynamics of the economic realm. ;The second, equally vital, role of law is its class character. It is argued that there is a ruling class in pre-socialist societies, and that the ruling class uses the law to maintain and further its own interest. How the law is used as a ruling-class instrument is examined in some detail. ;Further, it is explained how various legal ideas are delusive, and how the process of trial is prone to the pervasiveness of the dominant ideology. It is shown that many phenomena in law cannot be satisfactorily accounted for except via a Marxian perspective. Especially true is the absence of a starvation defence in criminal law. For if there is the provocation defence, an analogous reasoning makes the case for a starvation defence compelling. And while the absence of the starvation defence cannot be justified, it can be explained on a Marxian perspective. ;The focus of the dissertation is on the law in capitalist societies, especially in England, because Marx and Engels wrote mostly on the English society, and because the development of law reaches its highest point in capitalism. Another reason is that the author is most familiar with English law. (shrink)
This chapter is divided into two parts. In the first part, I explain the foundational differences between A Theory of Justice and Political Liberalism, despite the fact that Rawls maintains the Two Principles of Justice in both works. Moreover, I expound why, in view of the fact that reasonable people would subscribe to different comprehensive religious, philosophical, and moral doctrines, Rawls needs a new foundation for social stability in a constitutional liberal democracy. I explain the connection between Rawls’ ideas of (...) overlapping consensus, political conception, and public reason. Moreover, I explain Rawls’ idea of “duty of civility” and the condition under which a controversial issue can be legitimately resolved by way of voting. Further, instead of pursuing Rawls’ idea that bioethical issues could be resolved by way of “reasonable balancing” of “political values,” I turn to T. M. Scanlon’s contractualist approach, which is congenial to Rawlsian political liberalism and can resolve moral, political, and bioethical issues. In the second part of this chapter, I try to resolve the problem of medical assistance in dying by using Thomson’s/Scanlon’s idea that permissibility is not affected by intention. I deal with the Slippery Slope Arguments, the argument from abuse, and the argument from pressure on elderly patients who might feel obligated to die. Finally, I argue that Scanlonian contractualism is preferable to utilitarianism, and that contractualism can defuse the problem from pressure which has plagued utilitarianism. (shrink)
I argue that the personhood of a fetus is analogous to the the heap. If this is correct, then the moral status or intrinsic value of a fetus would be supervenient upon the fetus's biological development. Yet to compare its claim vis-a-vis its mother's, we need to consider not only their moral status, but also the type of claim they each have. Thus we have to give weight to the two factors or variables of the mother's moral status and her (...) claim to some lesser good . And then we have to consider the fetus's lesser moral status and its claim to some greater good, namely, life. I argue that we do not know how to compare these two-variable claims. This also explains why the central cases of abortion have been so difficult to resolve. I suggest that the problem of animal rights has a similar structure. (shrink)
In this chapter, Li argues against the Natural Law Theory approach expounded by Farrell and Tham in Chap. 2. Li also explains why Fan’s version of Confucianism in Chap. 3 is problematic. Li concludes that neither Farrell and Tham, nor Fan, have successfully argued that medical assistance in dying is impermissible.