Some believe that the mere beneficiaries of wrongdoing of others ought to disgorge their tainted benefits. Others deny that claim. Both sides of this debate concentrate on unavoidable beneficiaries of the wrongdoing of others, who are presumed themselves to be innocent by virtue of the fact they have neither contributed to the wrong nor could they have avoided receiving the benefit. But as we show, this presumption is mistaken for unavoidable beneficiaries who intend in certain ways to benefit from (...) wrongdoing, and who have therefore done something wrong in forming and acting on such an intention. (shrink)

The moral principle of fairness or fair play is widely believed to be a solid ground for political obligation, i.e., a general prima facie moral duty to obey the law qua law. In this article, I advance a new and, more importantly, principled objection to fairness theories of political obligation by revealing and defending a justificatory gap between the principle of fairness and political obligation: the duty of fairness on its own is incapable of preempting the citizen‟s liberty to reciprocate (...) fairly in ways other than obeying the law. This justificatory gap is unaffected by the ongoing debate between the voluntarist and the nonvoluntarist accounts of fairness, and it cannot be bridged by the two arguments that are perhaps implicit in Klosko‟s account, namely the presumptive benefits argument and the democratic procedure argument. (shrink)

The article briefly analyzes the concept of a person, arguing that personhood does not coincide with the actual enjoyment of certain intellectual capacities, but is coextensive with the embodiment of a human individual. Since in PVS patients we can observe a human individual functioning as a whole, we must conclude that these patients are still human persons, even if in a condition of extreme impairment. It is then argued that some forms of minimal treatment may not be futile for these (...) patients; they may constitute a form of respect for their human dignity and benefit these patients, even if they are not aware of that. Moreover, it is important to consider the symbolic significance of care: while many believe that PVS is a kind of imprisonment, for others providing food and fluids is the only way to testify our proximity to these persons. The best policy would be to provide, as a general rule, artificial nutrition and hydration to PVS patients: this treatment could be withdrawn, after a period of observation and reflection by the family and proxies, on the basis of the proxies' objection to the continuation or of the patient's advance directives specifically referring to this situation. (shrink)

The article briefly analyzes the concept of a person, arguing that personhood does not coincide with the actual enjoyment of certain intellectual capacities, but is coextensive with the embodiment of a human individual. Since in PVS patients we can observe a human individual functioning as a whole, we must conclude that these patients are still human persons, even if in a condition of extreme impairment. It is then argued that some forms of minimal treatment may not be futile for these (...) patients; they may constitute a form of respect for their human dignity and benefit these patients, even if they are not aware of that. Moreover, it is important to consider the symbolic significance of care: while many believe that PVS is a kind of imprisonment, for others providing food and fluids is the only way to testify our proximity to these persons. The best policy would be to provide, as a general rule, artificial nutrition and hydration to PVS patients: this treatment could be withdrawn, after a period of observation and reflection by the family and proxies, on the basis of the proxies' objection to the continuation or of the patient's advance directives specifically referring to this situation. (shrink)

Written for a symposium in the University of San Diego Law School in September 2013 on Laurence Claus, Law’s Evolution and Human Understanding, this article appears in the final issue of volume 52 of the San Diego Law Review. With new illustrations and considerations suggested by the book, the article argues for a number of theses: “Because I/we say so” is never a reasonable ground or formulation of authoritative acts such as enactments or parental or other orders. The moral authority (...) of rule makers is never peremptory in a binary as distinct from presumptive and defeasible sense. Deliberation towards the exercise or acceptance of authority is never primarily a matter of prediction or predictability of action, and is always a matter, rather, of purpose, and of creation by intelligent design than of non-purposive evolution. Those who exercise authority have no right to be obeyed, and the persons with the right correlative to a duty of compliance are those for whose benefit the rule or order was made and/or those who comply with it. The authority to make rules is a responsibility to serve the true interests of a community to which those subject to the rule belong. (shrink)

Given advances in the science of fertility preservation and the link between fertility choices and wellbeing, it is time to reframe our ethical thinking around fertility preservation procedures for children and young people with cancer. The current framing of fertility preservation as a possible offer may no longer be universally appropriate. There is an increasingly pressing need to discuss the ethics of failing to preserve fertility, particularly for patient groups for whom established techniques exist. I argue that the starting point (...) for deliberating about a particular patient should be a rebuttable presumption that fertility preservation ought to be attempted. Consideration of the harms applicable to that specific patient may then override this presumption. I outline the benefits of attempting fertility preservation; these justify a presumption in favour of the treatment. I then discuss the potential harms associated with fertility preservation procedures, which may justify failing to attempt fertility preservation in an individual patient's particular case. Moving from a framework of offer to one of rebuttable presumption in favour of fertility preservation would have significant implications for medical practice, healthcare organizations and the state. (shrink)

Although the standard theory and actual practice of cost-benefit analysis are seriously defective, the general idea of making social policy in accord with an aggregative, maximizing, consequentialist criterion is a sensible one. Therefore it is argued, against Bantz, that interpersonal utility comparisons can be meaningful, and, against both Bantz and MacLean, that quantitative overall assessments of expected value provide a presumptively rational basis for social choice. However, it does not follow that introducing cost-benefit tests into the political or legal process (...) would always be optimal: recognizing some quite stringent legal rights against involuntary exposure to pollution or risk may actually promote cost-beneficial results more reliably than cost-benefit tests employed in very imperfect circumstances. (shrink)

In this article, Harvey notes the initial confusion about the statement made by the pope concerning artificial nutrition and hydration on patients suffering persistent vegetative states (PVS) due to misunderstanding through the translation of the pope's words. He clarifies and assesses what was meant by the statement. He also discusses the problems of terminology concerned with the subject of PVS. Harvey concludes that the papal allocution was in line with traditional Catholic bioethics, and that while maintaining the life of a (...) patient is favorable, in particular cases this presumption wanes when it is clear that this treatment modality would be futile or very burdensome. (shrink)

According to the Good True Self (GTS) theory, if an action is deemed good, its psychological source is typically viewed as more reflective of its agent’s true self, of who the agent really is ‘deep down inside’; if the action is deemed bad, its psychological source is typically viewed as more external to its agent’s true self. In previous work, we discovered a related asymmetry in judgments of blame- and praiseworthiness with respect to the mitigating effect of moral ignorance via (...) childhood deprivation. Inspired by work motivating the GTS theory, we ran a new study to discover whether our asymmetry likewise reflected judgments about the true self. It did. However, it is unclear whether our results fit with the ‘good’ part of the GTS theory: some of our and others’ results suggest that, in certain contexts, wrong actions are taken to be more expressive of agents’ true selves than right ones. In this paper, we propose that our and others’ data can be explained by the hypothesis that we are inclined to judge as the GTS theory predicts when there is a readily available external explanation for an agent’s action. In short, we give people the benefit of the doubt. (shrink)

The procurement of fetal tissue for transplantation may promise great benefit to those suffering from various pathologies, e.g., neural disorders, diabetes, renal problems, and radiation sickness. However, debates about the use of fetal tissue have proceeded without much attention to ethical theory and application. Two broad moral questions are addressed here, the first formal, the second substantive: Is there a framework from other moral paradigms to assist in ethical debates about the transplantation of fetal tissue? Does the use of fetal (...) tissue entail cooperation in abortion? To answer these questions I develop a theoretical framework by combining the paradigm of just-war reasoning with canons governing the use of cadaverous tissue. The kinds of safeguards provided by this paradigm allow fetal tissue to be procured without the taint of association with abortion. Central to solving the problem of cooperation is the distinction between intending and foreseeing a moral misdeed. Fetal researchers may foresee fetal death in elective abortions without intending such deaths to occur. Thus, even those who object unequivocally to elective abortion may condone the procurement of fetal tissue, if sufficient reason exists. Keywords: fetal tissue, casuistry, prima facie duties, just-war tenets, complicity CiteULike Connotea Del.icio.us What's this? (shrink)

The moral principle of fairness or fair play is widely believed to be a solid ground for political obligation, i.e., a general prima facie moral duty to obey the law qua law. In this article, I advance a new and, more importantly, principled objection to fairness theories of political obligation by revealing and defending a justificatory gap between the principle of fairness and political obligation: the duty of fairness on its own is incapable of preempting the citizen’s liberty to reciprocate (...) fairly in ways other than obeying the law. This justificatory gap is unaffected by the ongoing debate between the voluntarist and the nonvoluntarist accounts of fairness, and it cannot be bridged by the two arguments that are perhaps implicit in Klosko’s account, namely the presumptive benefits argument and the democratic procedure argument. (shrink)

I offer a new account of fair-play obligations for non-excludable benefits received from the state. Firstly, I argue that non-acceptance of these benefits frees recipients of fairness obligations only when a counterfactual condition is met; i.e. when non-acceptance would hold up in the closest possible world in which recipients do not hold motivationally-biased beliefs triggered by a desire to free-ride. Secondly, I argue that because of common mechanisms of self-deception there will be recipients who reject these benefits (...) without meeting the counterfactual condition. For this reason, I suggest that those who reject non-excludable benefits provided by the state have a duty to support their rejection with adequate reasons. Failing that, they can be permissibly treated as if they had fair-play obligations (although in fact they might not have them). Thus, I claim that there is a distinction, largely unappreciated, between the question of whether we have a duty of fairness to obey the law and the question of whether we can be permissibly treated as if we had one. (shrink)

The article analyses the components of the presumption of innocence and tries to clarify some of the conceptual and logical difficulties surrounding the notion of ‘innocence’ and the structure of legal presumptions. It is argued that all conceivable literal interpretations of the maxim make little or no sense, and that the presumptions form is, as such, devoid of original content: presumptions do not explain nor justify anything but are auxiliary norms which refer to the legal consequences spelled out in other (...) norms. Therefore, the presumption of innocence can be used to express any kind of requirement and standard for the criminal process and the treatment of suspect citizens only in a tautological, albeit rhetorically forceful, way. This instrumental use of the presumption of innocence is theoretically without merit but can be practically beneficial as long as there is no developed system of fundamental rights and protections of individual freedoms in a given legal order. Finally, a functional understanding of the presumption of innocence is proposed which gives it an original, though limited field of application as a guarantee of the procedure itself, in particular of the openness of the outcome. (shrink)

The risk of creating cerebral organoids/assembloids conscious enough to suffer is a recurrent concern in organoid research ethics. On one hand, we should, apparently, avoid discovering how to distinguish between organoids that it would be permissible (non-conscious) and impermissible (conscious) to use in research, since if successful we would create organoids that suffer. On the other, if we do not, the risk persists that research might inadvertently continue to cause organoids to suffer. Moreover, since modeling some brain disorders may require (...) inducing stress in organoids, it is unclear how to eliminate the risk, if we want to develop effective therapies. We are committed to harm avoidance but hamstrung by a presumption that we should avoid research that might tell us clearly when suffering occurs. How can we negotiate this challenge and maximize the therapeutic benefits of cerebral organoid research? The author interrogates the challenge, suggesting a tentative way forward. (shrink)

Lockdown measures in response to the COVID-19 pandemic involve placing huge burdens on some members of society for the sake of benefiting other members of society. How should we decide when these policies are permissible? Many writers propose we should address this question using cost-benefit analysis, a broadly consequentialist approach. We argue for an alternative non-consequentialist approach, grounded in contractualist moral theorising. The first section sets up key issues in the ethics of lockdown, and sketches the apparent appeal of addressing (...) these problems in a CBA frame. The second section argues that CBA fundamentally distorts the normative landscape in two ways: first, in principle, it allows very many morally trivial preferences—say, for a coffee—might outweigh morally weighty life-and-death concerns; second, it is insensitive to the core moral distinction between victims and vectors of disease. The third section sketches our non-consequentialist alternative, grounded in Thomas Scanlon’s contractualist moral theory. On this account, the ethics of self-defence implies a strong default presumption in favour of a highly restrictive, universal lockdown policy: we then ask whether there are alternatives to such a policy which are justifiable to all affected parties, paying particular attention to the complaints of those most burdened by policy. In the fourth section, we defend our contractualist approach against the charge that it is impractical or counterintuitive, noting that actual CBAs face similar, or worse, challenges. (shrink)

Surgical clinical trials have seldom used a “sham” or placebo surgical procedure as a control, owing to ethical concerns. Recently, several ethical commentators have argued that sham surgery is either inherently or presumptively unethical. In this article I contend that these arguments are mistaken, and that there are no sound ethical reasons for an absolute prohibition of sham surgery in clinical trials. Reflecting on three cases of sham surgery, especially on the recently reported results of a sham-controlled trial of arthroscopic (...) surgery for arthritis of the knee, I present an ethical analysis that focuses on the methodological rationale for use of sham surgery, risk-benefit assessment, and informed consent. (shrink)

Surgical clinical trials have seldom used a "sham" or placebo surgical procedure as a control, owing to ethical concerns. Recently, several ethical commentators have argued that sham surgery is either inherently or presumptively unethical. In this article I contend that these arguments are mistaken and that there are no sound ethical reasons for an absolute prohibition of sham surgery in clinical trials. Reflecting on three cases of sham surgery, especially on the recently reported results of a sham-controlled trial of arthroscopic (...) surgery for arthritis of the knee, I present an ethical analysis that focuses on the methodological rationale for use of sham surgery, risk-benefit assessment, and informed consent. (shrink)

Beginning with the premise that the principal function of a criminal trial is to find out the truth about a crime, Larry Laudan examines the rules of evidence and procedure that would be appropriate if the discovery of the truth were, as higher courts routinely claim, the overriding aim of the criminal justice system. Laudan mounts a systematic critique of existing rules and procedures that are obstacles to that quest. He also examines issues of error distribution by offering the first (...) integrated analysis of the various mechanisms - the standard of proof, the benefit of the doubt, the presumption of innocence and the burden of proof - for implementing society's view about the relative importance of the errors that can occur in a trial. (shrink)

Many believe that the treatment-enhancement distinction marks an important ethical boundary that we should use to shape public policy on biomedical interventions. A common justification for this purported normative force appeals to the idea that, whereas treatments respond to genuine medical needs, enhancements can only satisfy mere preferences or “expensive tastes”. This article offers a critique of that justification, while still accepting the TED as a conceptual tool, as well as some of the key ethical axioms endorsed by its proponents. (...) I begin by laying out the TED, the practical implications that tend to be drawn from it, and the justification just sketched for these implications. Using examples drawn from preventive medicine, biomedical technology, and other categories of biomedical interventions, I then go on to challenge both the presupposition of a fundamental dichotomy between treatments and enhancements, and the assumption that enhancements – barring rare exceptions – cannot serve legitimate medical needs. Finally, I consider some ways in which supporters of the TED might try re-formulating the distinction to blunt the force of my critique. I conclude that such a move cannot fully succeed, and that while the TED does have some degree of normative force, it nevertheless cannot play the role that its advocates expect from it. Seeking to justify a general presumption against enhancements based on the rationale I critique here would mean ignoring their various potential benefits, including medical or therapeutic, and would reflect a prejudice – which I refer to as “treatment fetishism”. (shrink)

Parental decision making is necessary for contracting medical interventions that require personal risk–benefit evaluation, and for overseeing matters of education. In the nineteenth century, exemptions from obligatory vaccination were granted for religious and conscientious reasons. Then and today, religion and moral values play marginal roles in vaccine hesitancy and denialism. Rather, the key values invoked by vaccine hesitants and denialists are liberty and pluralism. Neither is compatible with limiting adolescents’ choice. Because vaccination does not require assessment of personal medical risks, (...) because it does not need to occur within the sphere of the doctor–patient relationship, and because the risk involved is within the range of their daily activities, adolescents have the right to free access to vaccination without legal requirement of parental involvement. Drawing on the development of Common Law, and on the development of respect for personal conscience in the history of ideas, this paper does not promote an argument that grants public health an overriding moral power. Rather, this paper rejects the presumption that vaccination of adolescents might involve a conflict between parental authority and public health. Free access to vaccination is compatible with the law and ethics of adolescents’ evolving autonomy in relation to healthcare. (shrink)

The slavery contract is not a rights violation since the right not to be enslaved and the right not to give out a benefit are waivable and the conjunction of their voluntary waiver is not itself a rights violation. The case for the contract being pejoratively exploitative is not clear. Hence given the general presumption in favor of liberty of contract, such a transaction ought to be permitted. The contract is also not invalid on the grounds that the wrongdoer’s consent (...) to it necessarily reflects involuntariness or irrationality or on the grounds that it is logically impossible for the wrongdoer to satisfy the contract. Allowing such contracts may not have desirable consequences, but for the liberal this by itself is not a sufficient reason against allowing them. One case where the slavery contract might be relevant is where a victim’s agent or the state agrees to waive its claim to harsh punishment in return for the offender agreeing to be enslaved. (shrink)

According to Autumn Fiester, the Presumption of Restraint—the thesis that an application of biotechnology to an animal is unethical unless backed by morally compelling reasons—is justified by five ethical claims. In this commentary, I explore the relevance of what Derek Parfit has dubbed the Non-Identity Problem for the implications of one of these claims, the Animal Welfare Claim. I conclude that while the Animal Welfare Claim condemns the alteration of founder animals in ways that are bad for them when there (...) is no important human or animal health benefit in the offing, it fails to condemn the alteration of animals in the context of important research projects, even if the alteration causes some animal suffering, and, given the Non-Identity Problem, it fails to condemn the subsequent creation of animals bred from the founders, so long as the subsequent animals have a life worth living. (shrink)

Communication is an essentially cooperative activity. However, cooperation only makes sense in a particular kind of environment – one in which cooperation leads to shared benefits. This can be seen once we take Grice’s Cooperative Principle and consider its implications in the general context of game theory. The effect is that something like metaphysical realism underpins normal human discourse, such discourse becoming impossible without that presumption.

Standard, familiar models portray harms and benefits as symmetrical. Usually, harm is portrayed as involving a worsening of one's situation, and benefits as involving an improvement. Yet morally, the aversion, prevention, and relief of harms seem, at least presumptively, to matter more than the provision, protection, and maintenance of comparable and often greater benefits. Standard models of harms and benefits have difficulty acknowledging this priority, much less explaining it. They also fail to identify harm accurately and (...) reliably. In this paper, I develop these problems, argue that we should reconsider our commitment to the standard models, and then merely gesture at the direction in which we might locate a superior approach, one that better accounts for the moral significance of harm and its relation to autonomy rights. (shrink)

The profile and possibilities of in vitro meat are rapidly expanding, creating new ethical conundrums about how to approach this nascent biotechnology. The outcomes of these ethical debates will shape the future viability of this technology and its acceptability for potential consumers. In this paper we focus on how in vitro meat is being ethically constructed in academic literatures and contrast this with discourses evident in the mainstream print media. The academic literature is analysed to identify a typology of ethical (...) discourses, ordered from the most common to least expressed. We then apply this typology to investigate the frames present in Australian print media reportage on the topic. In the academic literature, discourses relating to in vitro meat’s promised environmental, animal welfare and food security benefits are most prominent. In contrast, ontological struggles over its ‘nature’ have emerged as the dominant feature in the Australian print media. Although these spaces of engagement evidence decidedly different discursive trends, ethical discourses critical of in vitro meat’s wider socio-cultural ramifications are currently under-represented in both. This paper therefore calls for critical scholars to move beyond the narrow, presumptive framings of in vitro meat as a technological remedy for our consumptive ills, to more seriously engage with the ethical consequences of this new form of food. (shrink)

the arguments in their favour are weak. Arguments based on reciprocity fail to explain why only means-tested public benefits should be subject to work requirements, and why unpaid dependant care work should not count as satisfying citizens’ obligations to reciprocate. Argu- ments based on promoting the work ethic misattribute recipients’ nonwork to deviant values, when their core problem is finding steady employment consistent with supporting a family and meeting dependant care responsibilities. Rigid work requirements impose unreasonable costs on some (...) of the poor. A welfare system based on a rebuttable presumption that recipients will work for pay, conjoined with more generous work supports, would promote justice better than either unconditional welfare or strict requirements [1]. (shrink)

This paper examines three approaches to the relationship between our moral reasons to bear costs for others’ sake before and beyond the call of duty. Symmetry holds that you are required to optimise your beneficial sacrifices even when they are genuinely supererogatory. If you are required to bear a cost C for the sake of a benefit B, when they are the only costs and benefits at stake, you are also conditionally required to bear an additional cost C, for (...) the sake of an additional benefit B, when enough other costs and benefits are at stake that both of your alternatives are presumptively supererogatory. Disconnection rejects the requirement to optimise when your options are presumptively supererogatory and maintains that you have an entirely free hand to choose as you will among them. Asymmetry holds that when acting beyond the call of duty you are entitled to a measure of additional freedom compared to when you are not taking on supererogatory costs—you can prioritise your own well-being and reasons to a greater degree—but places constraints on the options that you may permissibly choose. We defend a version of Asymmetry and explore its implications for recent debates on charitable giving. (shrink)

Risk is the most often cited reason for ethical concern about any medical science or technology, particularly those new technologies that are not yet well understood, or create unfamiliar conditions. In fact, while risk and risk-benefit analyses are but one aspect of ethical oversight, ethical review and risk assessment are sometimes taken to mean the same thing. This is not surprising, since both the Common Rule and Food and Drug Administration foreground procedures for minimizing risk for human subjects and require (...) local IRBs to engage in some sort of risk-benefit analysis in decisions to approve or deny proposed research. Existing ethical review and oversight practices are based on the presumption that risk can be clearly identified within the planned activities of the protocol, that metrics can reasonably accurately predict potential hazards, and that mitigation measures can be taken to deal with unintended, harmful, or catastrophic events. (shrink)

This paper argues that there exists a collective epistemic state of ‘Broad Medical Uncertainty’ regarding the effectiveness of many medical interventions. We outline the features of BMU, and describe some of the main contributing factors. These include flaws in medical research methodologies, bias in publication practices, financial and other conflicts of interest, and features of how evidence is translated into practice. These result in a significant degree of uncertainty regarding the effectiveness of many medical treatments and unduly optimistic beliefs about (...) the benefit/harm profiles of such treatments. We argue for an ethical presumption in favour of openness regarding BMU as part of a ‘Corrective Response’. We then consider some objections to this position, including concerns that public honesty about flaws in medical research could undermine trust in healthcare institutions. We suggest that, as it stands, the Anti-Corrective Response is unconvincing. (shrink)

In response to the spread of COVID-19, governments across the world have, with very few exceptions, enacted sweeping restrictive lockdown policies that impede citizens’ freedom to move, work, and assemble. This paper critically responds to the central arguments for restrictive lockdown legislation. We build our critique on the following assumption: public policy that enjoys virtually unanimous support worldwide should be justified by uncontroversial moral principles. We argue that that the virtually unanimous support in favor of restrictive lockdowns is not adequately (...) justified by the arguments given in favor of them. Importantly, this is not to say that states ought not impose restrictive lockdown measures, but rather that the extent of the acceptance of these measures is not proportionate to the strength of the arguments for lockdowns. -/- We begin by exploring the case for restrictive lockdowns. We first argue that several of the principles that are used to justify the lockdowns yield unexpectedly revisionary implications for other political problems that many would be unwilling to accept. We then outline what we consider the strongest argument for a lockdown—namely, that its net welfare benefits are great enough to defeat the moral presumption against restricting citizens’ civil liberties to move, work, and assemble. However, we give a number of reasons for doubting that the lockdown’s net welfare benefits are, in fact, sufficiently high to defeat the presumption against it. (shrink)

Parents have the autonomous right to choose or refuse a treatment for their child, even those that are life sustaining, if it is extraordinary or disproportionate and it is within the best interest and well-being of their child. Pediatric health care is practiced with the goal of promoting the best interests of the child to do so. Treatment is generally rendered under a presumption in favor of sustaining life. However, in some circumstances, the balance of benefits and burdens to (...) the child leads to an assessment that forgoing life-sustaining medical treatment (LSMT) is ethically supportable or advisable. Input from specialists in palliative care, ethics, pastoral care, and other disciplines enhances support for families and medical staff when decisions to forgo LSMT are being considered. (shrink)

Moral and legal notions engaged in clinical ethics should not only possess analytic clarity but a sound basis in empirical findings. The latter condition brings into question the expansion of the mature minor exception. The mature minor exception in the healthcare law of the United States has served to enable those under the legal age to consent to medical treatment. Although originally developed primarily for minors in emergency or quasi-emergency need for health care, it was expanded especially from the 1970s (...) in order to cover unemancipated minors older than 14 years. This expansion initially appeared plausible, given psychological data that showed the intellectual capacity of minors over 14 to recognize the causal connection between their choices and the consequences of their choices. However, subsequent psychological studies have shown that minors generally fail to have realistic affective and evaluative appreciations of the consequences of their decisions, because they tend to over-emphasize short-term benefits and underestimate long-term risks. Also, unlike most decisionmakers over 21, the decisions of minors are more often marked by the lack of adequate impulse control, all of which is reflected in the far higher involvement of adolescents in acts of violence, intentional injury, and serious automobile accidents. These effects are more evident in circumstances that elicit elevated affective responses. The advent of brain imaging has allowed the actual visualization of qualitative differences between how minors versus persons over the age of 21 generally assess risks and benefits and make decisions. In the case of most under the age of 21, subcortical systems fail adequately to be checked by the prefrontal systems that are involved in adult executive decisions. The neuroanatomical and psychological model developed by Casey, Jones, and Summerville offers an empirical insight into the qualitative differences in the neuroanatomical and neuropsychological bases of adolescent versus adult decision making. These and other data, as well as developing law bearing on the culpability of juvenile criminal offenders, argue for critically re-evaluating the expansion of the mature minor exception with regard to medical decision making, as well as in support of a rebuttable presumption in favor of treating minors as immature decisionmakers. The clinical ethics of adolescent medical decision making will need foundationally to be reconsidered. (shrink)

In spite of these efforts in the 1920s and 1930s to initiate ongoing research on contraception, the subject of birth control remained a problem of concern primarily to the social activist rather than to the research scientist or practicing physician.80 In the 1930s, as has been shown, American scientists turned to the study of other aspects of reproductive physiology, while American physicians, anxious to eliminate the moral and medical dangers of contraception, only reluctantly accepted birth control as falling within their (...) professional domain.As a result, the problem of cheap, effective, and safe contraception was not solved by these earliest attempts. Consideration of the subject was initiated afresh by private philanthropy after World War II, sparked by a new wave of interest in population studies.81 Summarizing such efforts to support research in the reproductive sciences, a recent Ford Foundation study has noted: “To initiate and sustain serious research in the reproductive sciences has required for more than half a century concerted effort by interested individuals and private organizations, mainly from outside the mainstreams of the biomedical research community.”82The early laboratory research on chemical contraception described in this paper was but one important outcome of the concerted effort made by reformers in the 1920s to eliminate a variety of social problems thought to derive from excessive fertility. Scientific arguments and expertise were employed to advocate reform as well as to define the appropriate solution to such social problems. Scientists were recruited as advocates for the movement, but they were also employed as researchers in laboratory investigations sponsored by these same reformers.Sponsors of these early laboratory studies noted the difficulty of obtaining first-class investigators.83 The routine analyses necessary for such research, as well as the traditional scientific aversion to applied problems, provide only a partial explanation for this response. The real difficulty lay in recruiting investigators to a field that had previously been taboo. Once opened up — first as socially relevant, and finally as scientifically sound — there was much interest in this area, and the appeal to researchers of the scientific issues surrounding fertility and reproduction soon surpassed that of the reforming value of birth control.A survey of the kinds of experimental investigations sponsored by birth control advocates indicates the range of physiological problems explored by contraceptive research. The most definitive work was done on the efficacy and safety of spermicides, but the potential of other contraceptive methods was also examined. Investigators attempted to develop spermatoxins that would effectively immunize women against sperm, and they also tried to elucidate the mechanism of hormonal control of reproduction. In fact, speculations about the possible hormonal manipulation of fertility were expressed at the Seventh International Birth Control Conference held in Zurich in 1930.84In the 1920s, clinical studies were undertaken to assess the effectiveness of the various birth control methods. Laboratory investigators complemented this work by screening spermicides for safety and testing for their ability to kill sperm. There were a variety of birth control preparations on the market, but no one really knew whether these were effective or even safe.85 Although the physiology of other major organ systems was well advanced, the scientific study of reproductive physiology and contraceptive technology was clearly in its infancy in this period. Routine analyses simply could not be conducted, because the fundamental research establishing baselines had not yet been done. Scientists used this fact to redirect attention to basic research on reproduction.Laboratory research on contraception indicated important unexplored areas for physiological investigation. Social activists, who had encouraged prominent scientists to become interested in both the social value and the genetic implications of birth control, found these investigators revising the goals of their research. The biologists had formed their own network and had begun to seek out funding, reformulating the justification for sponsorship of further investigations. The eugenic motivations underlying these studies, which had initially made them theoretically attractive to biologists, were gradually eroded. Concern with “human evolution” ceded its place to interest in physiological mechanisms. Crew and others began to note that the use of biological theory to justify essentially political decisions had serious limitations. Biologists had become uncomfortable with those very arguments which had originally captured their interest. Recognition of the potential political abuse wrought by applying scientific principles to society was expressed by Crew just one year after the Zurich meeting. Referring to previous assessments of the role of sex in reproduction, he generalized: “In the past the biologist has justified feudalism, Manchester Liberalism, socialism and every other type of social organization and political programme by reference to selected biological phenomena.”86 By 1932 Crew had also begun to question the biological logic of regulated breeding, and had made it clear to his American sponsor that there was no simple correspondence between the practice of birth control and the genetic improvement of the human race.87Biologists further began to recognize, however, that although the hopeful genetic solution to human problems was probably an illusion, contraception still remained one tangible means to alleviate, human misery. Some laboratory scientists, like Crew, acknowledged the applicability of their own particular skills to this problem. For a few brief years, social needs and scientific goals were mutually supportive and closely intertwined. But as laboratory researchers gained interest in the study of reproduction and established their own priorities in this field, they temporarily withdrew from the arena of debate over birth control as an important mechanism for social reform.With the rise of Hitler, the genetic arguments for birth control rapidly lost their appeal. But by that time the scientific problem of how to achieve effective contraception had entered the professional consciousness. Both physicians and scientists began to be aware of birth control as a subject within their domain of expertise, although outside the principal focus of their research. Scientific discussion of birth control permanently altered from a question of justification to a problem of method: How could one achieve reliable and safe contraception? This had been Sanger's and Dickinson's goal from the beginning. Laboratory scientists had indeed been persuaded to undertake this work; this research had in turn affected biologists' perceptions of the whole field of reproductive physiology, encouraging further study of reproductive mechanisms. The promise of new knowledge provided for continued funding of this research, despite the caution by scientists that the social benefits would not be as immediate or as far-reaching as advocates and they themselves had first argued.The activities of birth control activists and their supporting agencies, and the financial backing of private contributors and foundations, notably the Rockefeller philanthropies, provided an important new stimulus to the development of research on the biology of reproduction in the late 1920s and early 1930s. Biologists were able to claim an enlarged realm of issues for scientific study through their activities as advocates and as investigators for the birth control movement. At the same time, they promised as-yet-undiscovered possibilities for regulating human reproduction once its physiology was understood. The knowledge and control that they promised lay in understanding the whole reproductive cycle — not merely in evaluating the toxic effects of presumptive spermicides.Chemical spermicides never summoned the interest of scientists as the contraceptive pill was to do, yet that research did reinforce the widespread perceptions of scientific research as essential to social reform. Spermicide investigations focused research efforts in reproductive biology by challenging traditional taboos, defining problems for further study, and providing laboratory investigators the opportunity to assert the social and scientific value of their own skills. Crew echoed this attitude as he observed in 1934:Man has turned from the adventurous conquest of his environment to the conquest of himself. To-day is the day of biological invention, eagerly used for the control of the undesirable and the unwanted. Sex and reproduction are no longer hedged around by myth and taboo; they are no longer accepted as mysteries that defy understanding. They are matters inviting examination and explanation; they are regarded as expressions of physico-chemical forces, the nature of which is to be displayed. It is accepted that when knowledge is sufficient, control will be absolute, and, though knowledge is not yet sufficient, readers... must be persuaded to the view that this will not always be so.88The synergism between reproductive biology and social needs has been temporary and sporadic, but recurring, since the 1920s. Scientific research programs have clearly been influenced by issues raised by public debate. Nevertheless, reproductive biologists have continued to assert their own professional goals. For the most part, they have rejected problems without inherent scientific interest and have spurned applied research except as it has had a direct bearing on current research themes. This attitude, apparent among American and British investigators in the 1930s, created the intellectual context for the invention and acceptance of the technically sophisticated oral contraceptive pill. It did not foster the production and improvement of the simple, safe, effective, and cheap vaginal contraceptive desired by early birth control advocates. (shrink)

Physicians make some medical decisions without disclosure to their patients. Nondisclosure is possible because these are silent decisions to refrain from screening, diagnostic or therapeutic interventions. Nondisclosure is ethically permissible when the usual presumption that the patient should be involved in decisions is defeated by considerations of clinical utility or patient emotional and physical well-being. Some silent decisions - not all - are ethically justified by this standard. Justified silent decisions are typically dependent on the physician's professional judgment, experience and (...) knowledge, and are not likely to be changed by patient preferences. We condemn the inappropriate exclusion of the patient from the decision-making process. However, if a test or treatment is unlikely to yield a net benefit, disclosure and discussion are at times unnecessary. Appropriate silent decisions are ethically justified by such considerations as patient benefit or economy of time. (shrink)

Governments of all nations presume they possess full discretionary policymaking powers over the lands and waters within their geopolitical boundaries. At least one global environmental issue—the rapid loss of the world’s biodiversity, the sixth major mass extinction event in geological time—challenges the legitimacy of this presumption. Increment by increment, the present generation is depleting the world’s biodiversity by way of altering species’ habitats for the sake of short term economic gain. When biodiversity is understood as an essential environmental condition—essential in (...) the long term because it is the source of the biological resources upon which humans depend—then the strongly differential distribution of benefits and burdens between generations raises an issue of intergenerational justice. We receive the short-term benefits of economic development; future generations will receive the resulting burden of a biosphere in which one of the life-support systems necessary for humanity will have been compromised. Using Ronald Dworkin’s conceptions of distributive justice, it can be demonstrated that constitutional constraints on the discretionary powers of governments, for the sake of intergenerational justice, are entirely consistent with central tenets of liberal democracy. As a result, we should abandon to some extent the presumption that governments have full jurisdiction over the lands and waters within their boundaries. (shrink)

Many scientists and doctors hope that affordable genome sequencing will lead to more personalized medical care and improve public health in ways that will benefit children, families, and society more broadly. One hope in particular is that all newborns could be sequenced at birth, thereby setting the stage for a lifetime of medical care and self‐directed preventive actions tailored to each child's genome. Indeed, commentators often suggest that universal genome sequencing is inevitable. Such optimism can come with the presumption that (...) discussing the potential limits, cost, and downsides of widespread application of genomic technologies is pointless, excessively pessimistic, or overly cautious. We disagree. Given the pragmatic challenges associated with determining what sequencing data mean for the health of individuals, the economic costs associated with interpreting and acting on such data, and the psychosocial costs of predicting one's own or one's child's future life plans based on uncertain testing results, we think this hope and optimism deserve to be tempered.In the analysis that follows, we distinguish between two reasons for using sequencing: to diagnose individual infants who have been identified as sick and to screen populations of infants who appear to be healthy. We also distinguish among three contexts in which sequencing for either diagnosis or screening could be deployed: in clinical medicine, in public health programs, and as a direct‐to‐consumer service. Each of these contexts comes with different professional norms, policy considerations, and public expectations. Finally, we distinguish between two main types of genome sequencing: targeted sequencing, where only specific genes are sequenced or analyzed, and whole‐exome or whole‐genome sequencing, where all the DNA or all the coding segments of all genes are sequenced and analyzed.In a symptomatic newborn, targeted or genome‐wide sequencing can help guide other tests for diagnosis or for specific treatment that is urgently needed. Clinicians use the infant's symptoms (or phenotype) to interrogate the sequencing data. These same complexities and uncertainties, however, limit the usefulness of genome‐wide sequencing as a population screening tool. While we recognize considerable benefit in using targeted sequencing to screen for or detect specific conditions that meet the criteria for inclusion in newborn screening panels, use of genome‐wide sequencing as a sole screening tool for newborns is at best premature. We conclude that sequencing technology can be beneficially used in newborns when that use is nuanced and attentive to context. (shrink)

Whistleblowing is the public disclosure of information with the purpose of revealing wrongdoings and abuses of power that harm the public interest. This book presents a comprehensive theory of whistleblowing: it defines the concept, reconstructs its origins, discusses it within the current ethical debate, and elaborates a justification of unauthorized disclosures. Its normative proposal is based on three criteria of permissibility: the communicative constraints, the intent, and the public interest conditions. The book distinguishes between two forms of whistleblowing, civic and (...) political, showing how they apply in the contexts of corruption and government secrecy. The book articulates a conception of public interest as a claim concerning the presumptive interest of the public. It argues that public interest is defined in opposition to corporate powers and its core content identified by the rights that are all-purposive for the distribution of social benefits. A crucial part of the proposal is dedicated to the impact of security policies and government secrecy on civil liberties. It argues that unrestrained secrecy limits the epistemic entitlement of citizens to know under which conditions their rights are limited by security policies and corporate interests. When citizens are denied the right to assess when these policies are prejudicial to their freedoms, whistleblowing represents a legitimate form of political agency that safeguards the fundamental rights of citizens against the threat of unrestrained secrecy by government power. Finally, the book contributes to shifting the attention of democratic theory from the procedures of consent formation to the mechanisms that guarantee the expression of dissent. It argues that whistleblowing is a distinctive form of civil dissent that contributes to the demands of institutional transparency in constitutional democracies and explores the idea that the way institutions are responsive to dissent determines the robustness of democracy, and ultimately, its legitimacy. What place dissenters have within a society, whether they enjoy personal safety, legal protection, and safe channels for their disclosure, are hallmarks of a good democracy, and of its sense of justice. (shrink)

This paper examines workplace surveillance and monitoring. It is argued that privacy is a moral right, and while such surveillance and monitoring can be justified in some circumstances, there is a presumption against the infringement of privacy. An account of privacy precedes consideration of various arguments frequently given for the surveillance and monitoring of employees, arguments which look at the benefits, or supposed benefits, to employees as well as to employers. The paper examines the general monitoring of work, (...) and the monitoring of email, listservers and the World Wide Web. It is argued that many of the common justifications given for this surveillance and monitoring do not stand up to close scrutiny. (shrink)

Equal Justice explores the role of the idea of equality in liberal theories of justice. The title indicates the book’s two-part thesis: first, I claim that justice is the central moral category in the socio-political domain; second, I argue for a specific conceptual and normative connection between the ideas of justice and equality. This pertains to the age-old question concerning the normative significance of equality in a theory of justice. The book develops an independent, systematic, and comprehensive theory of equality (...) and egalitarianism. The principal question is about the importance of equality in a theory of justice. More precisely, we should pose questions in four contracting circles: 1. Is justice the supreme value guiding our setup of the basic structure of society, or are there other, equally important values, such as recognition, care, communal belonging? 2. If justice is the highest guiding principle, which competing ideals—especially equality and freedom—ought to have precedence in a policy oriented toward justice? What status does the ideal of equality have in that framework? 3. If equality is a basic ideal of just policy, how should it be practically realized? What sort of equality (equal opportunity, equality of welfare, resource equality) should be demanded? 4. What patterned distribution of which specific goods does the ideal of equality demand? Which principles of distribution can be justified according to our justice ideal? To conclude and summarize: 5. What is the essential core of an egalitarian theory of justice, as opposed to an inegalitarian theory? These five questions structure the work’s order of argumentation. Part A elaborates the conceptual foundations and basic moral principles of justice and equality. Chapter I sets out to install justice as the central moral category in the socio-political domain. At the beginning of the first chapter, the conceptual foundations of justice are clarified. While not eliminating the classical distinctions between different forms of justice, I argue that the distributive paradigm is of primary importance. The primacy of justice in the socio-political domain is developed out of a confrontation with alternative positions, those which maintain either that justice generally, or distributive justice in particular, are subsidiary virtues. At the end of Chapter I, the first of the questions mentioned above is answered in a way that establishes justice as the guiding normative concept for the foundation and evaluation of any social order. To clarify the role of equality in a theory of justice, Chapter II separates the idea of equality into four different principles. They are organized in a way that begins with the most general and uncontroversial principle of equality, and progresses towards increasingly detailed and contested principles. There are two theses that articulate and defend the significance of equality for justice: First there is a conceptual connection between justice and equality, in that principles of formal and proportional equality are necessary in order to explicate the concept of justice. These two principles establish an unbreakable bond between justice and equality. Justice can only be explained—or so I argue—by reference to these and other (normative) principles of equality. The second thesis posits a normative relationship between justice and equality, which is disclosed by three substantive principles of equality: moral equality, the presumption of equality, and the principle of responsibility. I argue that the normative core of an egalitarian theory of justice is expressed by the latter two principles, which are themselves based on the first principle, that of moral equality. When we view one another as persons, what form of equality or equal treatment is normatively demanded? I argue that the answer to this question is given by the procedural principle of the presumption of equality: regardless of their apparent differences, all persons deserve strictly equal treatment, unless certain kinds of differences have whatever particular relevance would justify, on generally acceptable grounds, unequal treatment or unequal distribution. The justification of the presumption of equality is central to this work and has considerable importance. If the presumption principle’s validity can be justified by enlisting the principle of general justification, then the primacy of equality, and the essential argument for an egalitarian theory of justice, is established. This would likewise provide a procedure for the construction of a material theory of justice. The second question is answered thereby at the end of Chapter II: Equality should have primacy over competing ideals within a justice-oriented policy. The presumption of equality establishes this primacy and, at the same time, offers an appropriate metric and guideline for the construction of a material theory of distributive justice. The presumption of equality in Part B offers an elegant procedure for the development of a theory of distributive justice. Chapter III clearly sets out the necessary prerequisites that a theory of distribution must satisfy in order to determine a liberal-egalitarian distributional framework. We need to specify in which situation the distribution takes place; which goods are and are not to be distributed; in which respect the presumptive equality is to be produced; and by and to whom, and for what period, the relevant goods are to be distributed. The distribution is based on resources understood as general-purpose means. It is necessary to divide goods into different categories, since the justification for unequal treatment in one domain will not carry over into another. This makes presumptive equality necessarily complex. To that end, four spheres of justice are distinguished: (1) the political sphere, which involves allocating rights through the distribution of civil liberties; (2) the democratic sphere, in which political power and the rights of political participation are regulated; (3) the economic sphere, in which income and property are distributed; (4) the social sphere, in which social positions and opportunities are distributed. This framework of distributive justice answers the third of our guiding questions, about the nature of equality, in terms of equality of resources. Chapters IV and V set out the egalitarian distributive criteria for each sphere. I argue that the generally accepted, fundamental rights of classical liberalism are more effectively reconstructed by reference to the equal resource distribution presumptively required in those spheres. Chapter IV shows that when it comes to the first two spheres, those involving basic rights and freedoms and entitlement political participation, there can be no justified exceptions to the equal distribution of the relevant goods. That section argues, contrary to what we commonly find in theories of freedom or popular sovereignty, that the value of freedom and self-determination as the political basis of autonomy is best realized through the presumption of equal distribution. Chapter V deals with the other two spheres, those of economic goods and social positions, and argues for justified exceptions to equal distribution. In the economic sphere we find one principal reason favouring unequal distribution of resources, and three restrictions and compensations limiting that inequality. The basic exception to equal economic distribution arises from the unequal consequences of personal responsibility. From a suitably egalitarian standpoint, the principle of responsibility is the normative principle that determines which reasons justify economic inequality. Here the basic idea is that unequal shares of social goods are fair if they result from the choices and deliberate actions of the relevant parties. That individuals have to bear the costs of their own choices is a condition of autonomy. However, benefits or disadvantages arising from arbitrary and unmerited differences in social circumstances or natural endowments is unfair. The unequal consequences of independent decision-making and action must therefore be limited by compensating first for preferences, secondly for disadvantages, and thirdly by redistributing wealth in aid of the worse-off. I situations of emergency, compensating for disadvantages has priority over all other claims, owing to the urgency of the situation. Social inequalities go beyond the permissible limit if it is possible to improve the long-term social or economic situation of the worse-off by redistributing wealth to them. These exceptions lead to a complex system of free economic action within a framework of compensatory tax and transfer mechanisms. Finally, in the social sphere, the distribution of social positions, offices and opportunities must be structured to ensure that equally talented and motivated citizens have roughly equal chances of obtaining those offices or positions, irrespective of their economic or social class backgrounds. This compromise is permissible for reasons of freedom and prudence, and it makes a certain measure of inequality acceptable. The fourth of our guiding questions is answered accordingly. There are five principles of justice for the basic structure of society, and five legal principles that govern the special distribution of goods in the respective spheres—all are ranked according to their most defensible grounds of priority, ensuring that everyone is accorded equal justice. Chapter VI recapitulates the initial question of equality’s value. The conception of equal justice developed in this work postulates five principles of equality and five principles of law; these constitute an egalitarian framework because they support and promote social justice. Equality has value with respect to them, but is not given any independent, intrinsic value. That is why I call the account developed here a form of constitutive egalitarianism: justice is realized through the realization of equality, itself accomplished by applying the five postulates of equality and five distributive principles of law. This is an egalitarianism on two levels. The first level is involves the claim that morality or justice is conceptually connected with equality. The second level gives equality a substantial weight in what is conceptually validated at the first level, namely the presumption of equality, and constructs an appropriate interpretation and conception of distributive justice through principles of distribution for the individual spheres. The weight and importance of equality is shown by the distributive criteria applied to those spheres. This answers our final guiding question about the nature of an egalitarian theory. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Ought We to Require Emotional Capacity as Part of Decisional Competence?Paul S. Appelbaum* (bio)AbstractThe preceding commentary by Louis Charland suggests that traditional cognitive views of decision-making competence err in not taking into account patients’ emotional capacities. Examined closely, however, Charland’s argument fails to escape the cognitive bias that he condemns. However, there may be stronger arguments for broadening the focus of competence assessment to include emotional capacities, centering on (...) the ways in which emotions aid humans in processing information. Before emotional capacities are added to the list of functions essential for decisional competence, though, the feasibility and utility of such a reorientation must be demonstrated.To what extent ought persons’ capacities to experience emotion be taken into account when determining whether they should be deemed competent to make their own decisions? In the previous article, Louis Charland (1998) argues that traditional models of decision-making competence—of which the MacArthur Competence Treatment Study is a typical example—are mistaken in focusing narrowly on persons’ cognitive abilities to the neglect of emotional factors. In contrast, he suggests, constructs of competence ought explicitly to require a capacity to experience emotions, which he believes is central to meaningful decision making, before deeming persons competent.Charland, as he acknowledges, is not the first to suggest that the presence of some degree of emotional capacity is a necessary element of competence, but his argument is among the most elaborate to date and is certainly worth closer examination. Looked at carefully, however, Charland’s argument does not make quite the case for the determination of emotional capacity in competence assessment that he claims for it. Indeed, as I demonstrate below, Charland may share the same “pernicious [End Page 377] cognitive bias” that he ascribes to more traditional approaches. However, despite what I identify as the problems in Charland’s argument, others have raised more disturbing questions about the lack of attention to emotional issues in competence assessment. Thus, I am not ready to reject entirely the possibility that determinations of decisional competence ought to consider emotional factors. I conclude by outlining the questions that remain to be answered to identify more clearly the potential benefits of such an approach.The Construct of Decision-Making CompetenceSome preliminary comments about the nature of the dominant construct of decision-making competence may provide a useful frame for my response to Charland’s paper. Contemporary ideas of competence are tied inextricably to the ideal of self-determination in modern Western societies. Such societies are committed to respect for individual choice, both as a good in its own right and on the grounds that each person knows best what choices will maximize his or her own welfare. In general, therefore, states will not intervene to prevent persons from acting on their decisions, even when the choices they make—like the decision to smoke or to refuse potentially life-saving medical care—may objectively be thought to be detrimental to them.In some cases, however, the presumption that people will act in their own interests, as well as the notion that there is something intrinsically valuable in respecting their choices, fails (Buchanan and Brock 1989). When people’s minds are so disordered that they cannot be said to be making meaningful choices, other values come into play. Such people are called “incompetent.” When persons reach that point, the state’s interest in protecting its citizens becomes primary and someone else must make decisions on their behalf. Note that the size of this group must be sharply limited, lest a liberal society’s commitment to self-determination be undermined: There is no more profound infringement of the rights of citizens than the determination that they are incompetent. Thus, the criteria for incompetence must be selected in a deliberately narrow fashion—alternately, one might say that the standards for competence are made intentionally broad—so that all but a tiny percentage of citizens will be permitted to make decisions on their own.In the Anglo-American world, the process of formulating criteria of competence by and large has been left to the common law courts. Over the course of centuries they have identified the capacities that are, in... (shrink)

This paper examines workplace surveillance and monitoring. It is argued that privacy is a moral right, and while such surveillance and monitoring can be justified in some circumstances, there is a presumption against the infringement of privacy. An account of privacy precedes consideration of various arguments frequently given for the surveillance and monitoring of employees, arguments which look at the benefits, or supposed benefits, to employees as well as to employers. The paper examines the general monitoring of work, (...) and the monitoring of email, listservers and the World Wide Web. It is argued that many of the common justifications given for this surveillance and monitoring do not stand up to close scrutiny. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Bioethics Reconsidered: Theory and Method in a Post-Christian, Post-Modern AgeH. Tristram Engelhardt Jr. (bio)A candid assessment of the moral significance of our post-Christian, post-modern era calls for a reconsideration of the very project of bioethics. For many bioethicists, concerns for theory and method are secondary. 1 These scholars presuppose a common morality and a reasonable, overlapping consensus regarding [End Page 336] an appropriate polity. They assume as well that (...) we, as humans, possess middle-level principles, casuistic capacities, and guiding intuitions that enable us, inter alia, to identify which allocations of health care are unfair, whether the purchase of organs from the poor is exploitative, and if physicians may require as a condition for treatment agreement on a professional standard for the disclosure of information in the acquisition of consent. In this account of bioethics, we are taken to share a content-full moral understanding. Theory may illuminate that understanding and method may resolve particular controversies, but neither is necessary to disclose the nature of the moral life in the domain of health care. The account presents us as bound by a content-full morality, about which we have pretheoretical knowledge and in terms of which we are able to reach appropriate decisions, even if we have competing theoretical understandings of that morality.This dominant account of bioethics has interesting similarities with Roman Catholic moral theology in assuming (1) the existence of a common canonical morality grounded in our nature, our sentiments, and/or our reason, as well as (2) the ability of reason, reflection, or analysis to disclose the substance of that morality. The difficulty is that there are diverse moral sentiments, sympathies, and visions. The depth of our disagreements can be gauged in our substantive disputes regarding abortion, physician-assisted suicide, and health care reform. Furthermore, no appeal to middle-level principles or to casuistry can bridge such differences when people really disagree. Such appeals only underscore what separates.Consider how an appeal to the principle of autonomy or justice in mediating disputes regarding the licensing of for-profit euthanatization services or the enactment of a health care proposal like that produced by the Clinton administration in 1993 (White House 1993) will only disclose how deep the disagreements are, if the disputants are a Rawlsian and a Nozickian (Rawls 1971, Nozick 1974). Or, consider an appeal to casuistry for the resolution of health care policy debates among parties, some of whom consider dumping and skimming to be morally exemplar acts of autonomy, frankness, and appropriate stewardship of resources (Engelhardt and Rie 1988), while the other parties regard them as exemplar acts of injustice. Such disputants will agree neither about the proper descriptions of the cases, nor about how to derive moral guidance from them, because they bring to the cases disparate moral senses and different understandings of moral rationality. In a world in which there are as many different accounts of fairness and justice as there are major religions, and where many may hold that exploiters are those who do not allow the poor to sell their organs to the rich, the presumption of a moral consensus or background morality (Bayertz 1994) serves more as an ideology than as a general authoritative moral disclosure. [End Page 337]In addition, it is not possible to choose among many 2 of the competing visions or accounts of justice, fairness, and appropriate behavior on the basis of sound rational argument. To choose authoritatively among competing content-full moralities or moral accounts, one must already have background moral guidance. If one is to choose the account that maximizes benefits over harms, one must be able to compare competing benefits. For example, in terms of consequences, one cannot compare liberty and equality outcomes without already knowing how to rank liberty and equality. One must already know the answer about which morality—e.g., the one that gives priority to liberty over equality, or the one that gives priority to equality over liberty—is authoritative. Nor will an appeal to preference satisfaction solve the difficulty of determining how to establish the canonical ethics and bioethics. One must first know how one should correct preferences, compare impassioned versus considered... (shrink)

Most advanced industrial societies are ‘work-centered,’ according high value and prestige to work. Indeed, belief in an interpersonal moral duty to work is encoded in both popular attitudes toward work and in policies such as ‘workfare’. Here I argue that despite the intuitive appeal of reciprocity or fair play as the moral basis for a duty to work, the vast majority of individuals in advanced industrialized societies have no such duty to work. For current economic conditions, labor markets, and government (...) policies entail that the conditions for a reciprocity-based argument to apply to most workers are not usually met. More specifically, many workers fail to provide valuable goods through working or their working does not result in net social benefit. Concurrently, many workers do not receive adequate benefits from working in that they neither have their basic needs met or do not even enjoy an improvement in welfare thanks to working. Hence, workers neither provide nor receive the benefits needed for a reciprocity-based duty to work to apply to them. Furthermore, these conditions are conditions over which workers themselves have very little control. Most workers therefore could not fulfill their ostensible duty to work even if they made conscientious efforts to do so. In most cases, a person who fails to work morally wrongs no one, and in the case of any particular individual or worker, the defeasible presumption ought to be that she has no duty to work. (shrink)

Eric C. Ip has recently argued that seriously anorexic service users ought to be assumed to be legally incapacitous to refuse life‐saving artificial nutrition unless they can demonstrate otherwise, reversing the ordinary legal presumption in place to protect patients’ liberty and values. In this response, I argue against this proposal on two grounds. Firstly, the proposal is wrongfully discriminatory; it would expose service users to serious harm, and wrong them in numerous ways, on the basis of their diagnosis alone, without (...) significantly benefitting them in any way relative to the status quo. Secondly, he is unable to show that a large majority of such service users actually are incapacitous to refuse life‐saving artificial nutrition. This means that his proposal would likely involve declaring a large number of actually capacitous patients to be incapacitous, without even the requirement of a formal assessment, and burdening them with the responsibility of proving their clinical team wrong if they wish to avoid deprivation of liberty and/or compelled treatment. Given this, his proposal is indefensible. (shrink)

A focus of criticism on methodological and ethical grounds, the undercover or `covert' approach to fieldwork persists as a useful technique in certain settings. Questions remain about the credibility of the published findings from such work. Covert researchers nearly always protect the anonymity of their subjects and locations. Other researchers cannot validate the covert researcher's claims, yet ethical guidelines often insist that researchers demonstrate the benefits that derive from a covert study. If researchers cannot show that their studies will (...) prove beneficial, ethical standards will weigh against the study, on the presumption that the omission of informed consent should be counterbalanced by the scientific rewards of the research. An attempt to open the results to greater peer investigation might place subjects at risk of unwanted notoriety or even danger. There does not seem to be a way that covert research can meet ethical guidelines unless we adjust our conceptions of research, ethics, or both. Key Words: fieldwork • ethnography • research ethics • informed consent. (shrink)

It is now medically possible for a baby to have two biological mothers. A fertilized ovum from one woman can be implanted into a second woman for gestation in her uterus. In fact, there have been several such cases. The ova donor is the mother in the genetic sense: her genetic material,along with that of the sperm donor,appears in the developing baby. The uterine hostess is the birth mother: she gestates the fetus and gives birth to it. In essence, the (...) two female reproductive functions, genetic and gestational, can be and have been divided from each other. Our current conception of biological maternity has lagged behind these technological marvels and still assumes that both functions will be performed by the same woman. At a time when two "biological mothers" can and do make claims for the same child,each on the ground that she is the "true mother", it is crucial to examine our concepts of biological maternity and their relation to our social policies about maternity in these cases. In this paper I will argue that the best social and legal policy would involve a prima facie preference for the claims of the gestational mother over the claims of the genetic mother for custody of the child in a contest (if there is no question of parental unfitness on either side). That is, in any dispute, presumption should be in favor of the gestational mother. This argument is made independent of considerations about pre-birth and pre-conception contracts, because the issues raised about the roles of gestational and genetic maternity are substantial in themselves and have obvious implications about the acceptability of such contracts.Rather, I argue that a revision of our concept of biological maternity which emphasizes the importance of gestation and which would prefer the claims of the gestational over the genetic mother would have positive benefits for both women and newborns. (shrink)

The doctrine of clinical equipoise is appealing because it appears to permit physicians to maintain their therapeutic obligation to offer optimal medical care to patients while conducting randomized controlled trials (RCTs). The appearance, however, is deceptive. In this article we argue that clinical equipoise is defective and incoherent in multiple ways. First, it conflates the sound methodological principle that RCTs should begin with an honest null hypothesis with the questionable ethical norm that participants in these trials should never be randomized (...) to an intervention known to be inferior to standard treatment. Second, the claim that RCTs preserve the therapeutic obligation of physicians misrepresents the patient-centered orientation of medical care. Third, the appeal to clinical equipoise as a basic principle of risk-benefit assessment for RCTs is incoherent. Finally, the difficulties with clinical equipoise cannot be resolved by viewing it as a presumptive principle subject to exceptions. In the final sections of the article, we elaborate on the non-exploitation framework for the ethics clinical research and indicate issues that warrant further inquiry. (shrink)

Most management researchers pause at the threshold of objective right and wrong. Their hesitation is understandable. Values imply a “subjective,” personal dimension, one that can invite religious and moral interference in research. The dominant epistemological camps of positivism and subjectivism in management stumble over the notion of moral objectivity. Empirical research can study values in human behavior, but hard-headed scientists should not assume that one value can be objectively better than another. In this article, we invite management researchers to rethink (...) this presumption. We show how accepting at least a limited form of moral objectivity, namely, an epistemic orientation that seeks objective moral reasons, can benefit management research by 1. guiding research practice; 2. using patterns of moral objectivity as clues for formulating empirical hypotheses for psychological explanations; and 3. adding prescriptive power to empirical theories. (shrink)