In an earlier article in this journal I argued that the question of whether heroin addicts can give voluntary consent to take part in research which involves giving them a choice of free heroin does not – in contrast with a common assumption in the bioethics literature – depend exclusively on whether or not they possess the capacity to resist their desire for heroin. In some cases, circumstances and beliefs might undermine the voluntariness of the choices a person (...) makes even if they do possess a capacity for self-control. Based on what I took to be a plausible definition of voluntariness, I argued that the circumstances and beliefs typical of many vulnerable heroin addicts are such that we have good reasons to suspect they cannot give voluntary consent to take part in such research, even assuming their desire for heroin is not irresistible. In a recent article in this journal, Uusitalo and Broers object to this on the grounds that I misdescribe heroin addicts' options set, that the definition of voluntariness on which I rely is unrealistic and too demanding, and, more generally, that my view of heroin addiction is flawed. I think their arguments derive from a misunderstanding of the view I expressed in my article. In what follows I hope therefore to clarify my position. (shrink)

Does addiction to heroin undermine the voluntariness of heroin addicts' consent to take part in research which involves giving them free and legal heroin? This question has been raised in connection with research into the effectiveness of heroin prescription as a way of treating dependent heroin users. Participants in such research are required to give their informed consent to take part. Louis C. Charland has argued that we should not presume that heroin addicts are competent to do this since heroin (...) addiction by nature involves a loss of ability to resist the desire for heroin. In this article, I argue that Charland is right that we should not presume that heroin addicts are competent to consent, but not for the reason he thinks. In fact, as Charland's critics correctly point out, there is plenty of evidence showing that heroin addicts can resist their desire for heroin. These critics are wrong, however, to conclude from this that we should presume that heroin addicts are competent to give their voluntary consent. There are, I shall argue, other conditions associated with heroin addiction that might constrain heroin addicts' choice in ways likely to undermine the voluntariness of their consent. In order to see this, we need to move beyond the focus on the addicts' desires for heroin and instead consider the wider social and psychological circumstances of heroin addiction, as well as the effects these circumstances may have on the addicts' beliefs about the nature of their options. (shrink)

The article studies the reception of Aristotle’s treatments of voluntariness and decision (EN 3.1–5) in the first three Latin commentaries (two by Albert the Great, one by Thomas Aquinas) that are based on the integral text of the Nicomachean Ethics. In particular, my goal is to examine how Albert’s and Thomas’s non-Aristotelian concepts of the will as a faculty distinct from reason influences their explanations of the Aristotelian account. It is argued that the Dominican commentators emphasize the idea of freedom (...) more than Aristotle did. (shrink)

In this essay, we respond to Angelo Corlett’s criticism of our paper ‘Ethics, Brain Injuries, and Sports: Prohibition, Reform, and Prudence’. To do so, first, we revisit certain assumptions and arg...

The American Journal of Bioethics, Volume 11, Issue 8, Page 33-35, August 2011.

Philosophers have shown little interest in the concept of voluntariness during the last fifty years, mainly because Anscombe's book Intention persuaded us that it plays a relatively minor role in thought about human action, compared to the concept of acting intentionally or acting for a reason, and does not raise any interesting problems of its own, once the nature of intentional action has been explained. But this seems to be wrong. The nature of voluntariness, and its relationship with guilt, coercion, (...) obligation, intention, knowledge and choice, merit careful analysis. This article makes a start. (shrink)

This chapter contains sections titled: Agent Causation Choice Agent Causation (Cont.) Knowledge Moral Responsibility Moral Responsibility for Virtue and Vice Determinism and Compatibilism Criticisms Notes Bibliography.

Parents’ perception of having no choice and strong emotions like fear about the prospect of living liver donation can lead professionals to question the voluntariness of their decision. We discuss the relation of these experiences (no choice and emotions), as they are communicated by parents in our study, to the requirement of voluntariness. The perceived lack of choice, and emotions are two themes we found in the interviews conducted within the “Living Related Donation; a Qualitative-Ethical Study” research (...) program. As a framework for the interpretation of these themes we discuss views of moral agency. We adopt a view in which relations are seen as constitutive of moral agency. Judging from this view, the perceived lack of choice can best be understood as a sign of commitment. We argue in this article that neither seeing no choice, nor emotions in themselves should be seen as compromises of a voluntary consent. However both experiences draw attention to aspects that are important to come to an evaluation of consent to donation. We discuss the story of one mother as an exemplary case to show how both themes can intertwine. (shrink)

In the polarized debates about abortion and voluntary euthanasia, disability advocates, who normally align with left-wing social forces, have tended to side with conservative and religious voices in expressing concerns about the impact of technological and sociopolitical developments on disabled futures. This paper draws on the social model of disability and the virtue ethics tradition to explain the alignment between the religious and disability perspectives, and the theory of transformative choice to highlight the limits and biases of the (...) pro-choice logic. Yet, it also recognizes the inherent contradiction of disabled advocates taking a paternalistic position against the personal agency of women and people facing terminal illnesses. A disability perspective serves the discussion of abortion and euthanasia as an encouragement to work together for the building of a society that enables people with diverse disabilities to exist and flourish, and helps pregnant women, people facing disabling and terminal illnesses, and politicians and social influencers to make informed choices. (shrink)

The claims of those who are compelled to migrate are, in general, taken to be more urgent and pressing than the claims of those who were not forced to do so. This article does not defend the moral relevance of voluntarism to the morality of migration, but instead seeks to demonstrate two complexities that must be included in any plausible account of that moral relevance. The first is that the decision to start the migration journey is distinct from the decision (...) to stop that journey, through resettlement; the latter may involve voluntary choice, without that voluntarism impugning the involuntary nature of the former. The second is that the migration decision of the individual might be voluntary, even while that individual's family or social network might be compelled to insist upon some particular individual member's migration. That is, the fact that any particular person might be free to refuse migration does not contradict the fact that the group in question does not have the effective freedom to avoid the migration of some group members. Once these two complexities are understood, I argue, the moral relevance of voluntarism in the ethics of migration becomes more complex and nuanced than is generally understood. (shrink)

The degree of autonomy present in the choices made by individuals with an addiction, notably in the context of research, is unclear and debated. Some have argued that addiction, as it is commonly understood, prevents people from having sufficient decision-making capacity or self-control to engage in choices involving substances to which they have an addiction. Others have criticized this position for being too radical and have counter-argued in favour of the full autonomy of people with an addiction. Aligning ourselves with (...) middle-ground positions between these two extremes, we flesh out an account of voluntary action that makes room for finer-grained analyses than the proposed all-or-nothing stances, which rely on a rather static metaphysical understanding of the nature of the voluntariness of action. In contrast, a dynamic concept of voluntary action better accounts for varying levels of voluntariness of the person with an addiction which takes into consideration internal and external determinants of choice. Accordingly, like other components of autonomous choices such as level of information, voluntariness can fluctuate. Therefore, there are important implications for research and clinical ethics in matters of consent, recruitment, and therapeutic approaches. Overall, our proposal is inspired by a pragmatist understanding of voluntary action, notably with respect to how voluntariness is both informed by actions and experiences that shape one's view of the world. (shrink)

IN her work on the distinction between freedom and voluntariness, Serena Olsaretti suggests the following definition of voluntary action: an action is voluntary if it is not non-voluntary, and non-voluntary if it is performed because there are no acceptable alternatives, where ‘acceptable’ means conforming to some objective standard (which Olsaretti suggests might be well-being). Olsaretti suggests that ascriptions of responsibility are underwritten by judgments of voluntariness, rather than freedom. Also, Olsaretti notes that a concern for (...) class='Hi'>voluntary choice might be grounded in respect for autonomy. So, two important questions in political philosophy – when an agent is responsible for her actions and what we must do if we want agents to live autonomous lives – hang upon whether Olsaretti's account of voluntariness is correct once it has been developed in detail. This article is a contribution to that development. I show that well-informedness about our options is crucial to whether we act voluntarily or not, and I argue that we should restrict the scope of what we consider relevantly unacceptable to include only things which involve serious prudential harm. Inevitably there are some questions left unanswered, but what follows indicates what I take to be the strongest form of Olsaretti's theory, and one which can play the role described for it above. (shrink)

Mother-to-child transmission of the Human Immunodeficiency –Virus is a serious public health problem, contributing up to 90% of childhood HIV infections. In Tanzania, the prevention-of-mother-to-child-transmission feature of the HIV programme was rolled out in 2000. The components of PMTCT include counselling and HIV testing directed at antenatal clinic attendees. It is through the process of Provider Initiated Counseling and Testing that counselling is offered participant confidentiality and voluntariness are upheld and valid consent obtained. The objective of the study was to (...) explore antenatal clinic attendees’ experiences of the concept of voluntariness vis- a- vis the implementation of prior counseling and subsequent testing for HIV under the PITC as part of their antenatal care. In-depth interviews were conducted with17 antenatal clinic attendees and 6 nursing officers working at the Muhimbili National Hospital antenatal clinic. The study data were analyzed using qualitative content analysis. Antenatal clinic attendees’ accounts suggested that counselling and testing for HIV during pregnancy was voluntary, and that knowledge of their HIV status led them to access appropriate treatment for both mother and her newborn baby. They reported feeling no pressure from nursing officers, and gave verbal consent to undergo the HIV test. However, some antenatal clinic attendees reported pressure from their partners to test for HIV. Healthcare providers were thus faced with a dilemma of disclosure/ nondisclosure when dealing with discordant couples. Antenatal clinic attendees at MNH undertook the PITC for HIV voluntarily. This was enhanced by their prior knowledge of HIV, the need to prevent mother- to- child transmission of HIV, and the effectiveness of the voluntary policy implemented by nursing officers. (shrink)

Absent mistake or misrepresentation, most scholars assume that parties who agree to contract do so voluntarily. Scholars tend further to regard that choice as an important exercise in moral agency. Hanoch Dagan and Michael Heller are right to question the quality of our choices. Where the fundamental contours of the transaction are legally determined, parties have little opportunity to exercise autonomous choice over the terms on which they deal with others. To the extent that our choices in contract (...) do not reflect our individual moral constitutions — our values, virtues, vices, the set of reasons we reject and the set of reasons we endorse — we are not justified in regulating contracts reluctantly. Contracts are entitled to the privilege of liberal regulatory deference only to the extent that they are the work product of individual autonomy. The assumption that contract is voluntary does enormous work in most normative theories of contract. This Article takes still more seriously the obstacles to autonomous choice that contracting parties face. The most important constraints are not in contract law itself but in the material and moral imperatives that dictate parties’ contracting preferences. Many contracts are driven by circumstantial considerations or actual background obligations. While these contracts are not wholly lacking in the element of voluntariness, we should distinguish them from those choices — and those contracts — which more fully realize our potential to self-consciously author our relations with others. Autonomous choice in contract requires more than Dagan and Heller imply, and it is likely beyond the power of contract law standing alone to deliver it. (shrink)

In an interesting response to an article I published in CQ that questions the ability of advance directives to reflect autonomy, Christopher Tollefsen raises a number of issues that deserve greater attention. Tollefsen offers several examples to illustrate how the critique of advance directives I offer would also threaten other choices that most people would consider autonomous. Importantly, I largely agree that the examples Tollefsen offers should be captured as autonomous. Where I disagree, however, is whether these examples reflect the (...) particular type of second order decision strategy that I categorize advance directives as, and so whether the critique of advance directives I offer, if accepted, would commit us to an unreasonably narrow conception of autonomy. (shrink)

While various items closely associated with belief, such as speech?acts of assertion, or what have recently been termed acts of ?acceptance?, can clearly be voluntary, it is commonly supposed that belief itself, being intrinsically truth?directed, is essentially passive. I argue that while this may be true of belief proper, understood as a kind of disposition, it is not true of acts of assent or ?judgment?. Judgments, I contend, must be deemed voluntary precisely because of their truth?aimedness, for in (...) their case this feature entails that they can always be regarded as the subjects of a kind of implicit practical reasoning. By emphasizing the familiar point that voluntariness need not involve anything more than this, and by invoking the soft determinist option of holding causation to be compatible with choice, I seek to deflect some anticipated objections to this argument. (shrink)

Anselm of Canterbury holds that freedom of the will is a necessary condition for moral responsibility. This condition, however, turns out to be trivially fulfilled by all rational creatures at all times. In order to clarify the necessary conditions for moral responsibility, we must look more widely at his discussion of the nature of the will and of willed action. In this paper, I examine his theory of voluntariness by clarifying his account of the sin of Satan in De casu (...) diaboli. Anselm agrees with Augustine that the sinful act cannot be given a causal explanation in terms of a distinct preceding act of will or desire or choice. He thus rejects volitionalist accounts of Satan's sin and thus of voluntary action in general. He moves beyond his predecessor, however, in insisting on the necessity of an explanation in terms of reasons, and his theory of the dual nature of the rational will is designed to meet this demand. A comparison of Satan's case with the case of the miser of De casu diaboli 3,... (shrink)

Ethical arguments about assisted dying often focus on whether or not respect for an individual’s autonomy gives a reason to offer them an assisted death if they want it. In this paper, I present an argument for legalising assisted dying which appeals to the autonomy of people who don’t want to die. Adding that option can transform the nature of someone’s choice set, enabling them to pursue other options voluntarily where that would otherwise be harder or impossible. This does (...) not contradict the more familiar arguments for legalising assisted dying based on the autonomy of those who seek to die. But it does suggest that a wider constituency of support for that legislative change might be created by emphasising that one need not be in that position to be benefited by the change. (shrink)

Nearly 400 million adults have been vaccinated against COVID-19. Children have been excluded from the vaccination programmes owing to their lower vulnerability to COVID-19 and to the special protections that apply to children’s exposure to new biological products. WHO guidelines and national laws focus on medical safety in the process of vaccine approval, and on national security in the process of emergency authorisation. Because children suffer much from social distancing, it is argued that the harms from containment measures should be (...) factored in a broader perspective on the good of the child. Considering the available knowledge on the disease, vaccine, and coping strategies, the decision about vaccine access to children is a public responsibility. The ultimate choice is a matter of paediatric informed consent. Moreover, jurisdictions that permit non-participation in established childhood vaccination programmes should also permit choice of vaccines outside of the approved programmes. Even if vaccine supply is too short to cover the paediatric population, the a priori exclusion of children is unjust. It may also exacerbate local and global inequalities. The second part of the paper delineates a prudent and ethical scheme for gradual incorporation of minors in vaccination programmes that includes a rigorous postvaccination monitoring. This is a theoretical paper in ethics that uses the Pfizer vaccine as a stock example, without discussing possible differences among existing vaccines. The key purpose is reflection on the good of the child in emergencies and vaccine policymaking. All data relevant to the study are included in the article and in its refernces. (shrink)

This paper argues that a sweatshop worker's choice to accept the conditions of his or her employment is morally significant, both as an exercise of autonomy and as an expression of preference. This fact establishes a moral claim against interference in the conditions of sweatshop labor by third parties such as governments or consumer boycott groups. It should also lead us to doubt those who call for MNEs to voluntarily improve working conditions, at least when their arguments are based (...) on the claim that workers have a moral right to such improvement. These conclusions are defended against three objections: 1) that sweatshop workers' consent to the conditions of their labor is not fully voluntary, 2) that sweatshops' offer of additional labor options is part of an overall package that actually harms workers, 3) that even if sweatshop labor benefits workers, it is nevertheless wrongfully exploitative. (shrink)

Feminists have argued that oppressive socialization undermines the liberal model of autonomy. We contend that this argument can also be employed effectively as a challenge to the standard bioethical model of informed consent. We claim that the standard model is inadequate because it relies on presumptions of procedural autonomy and rational choice that overlook the problem of how agents are often socialized so that they adopt and internalize oppressive norms as part of their motivational structure. The argument that oppressive (...) socialization undermines liberalism’s view of autonomy is most relevant to what Beauchamp and Childress call the threshold elements of informed consent—competence and voluntariness. We show how these elements fail to account for morally relevant factors such as oppressive socialization. (shrink)

Feminists have argued that oppressive socialization undermines the liberal model of autonomy. We contend that this argument can also be employed effectively as a challenge to the standard bioethical model of informed consent. We claim that the standard model is inadequate because it relies on presumptions of procedural autonomy and rational choice that overlook the problem of how agents are often socialized so that they adopt and internalize oppressive norms as part of their motivational structure. The argument that oppressive (...) socialization undermines liberalism’s view of autonomy is most relevant to what Beauchamp and Childress call the threshold elements of informed consent—competence and voluntariness. We show how these elements fail to account for morally relevant factors such as oppressive socialization. (shrink)

Bill 20, An Act to Enact the Act to promote access to family medicine and specialized medicine services and to amend various legislative provisions relating to assisted procreation, was introduced to reduce costs associated with Québec’s healthcare in general and in vitro fertilisation in particular. Passed in November 2015, the new law introduces a number of exclusion criteria for access to and funding for IVF treatment. Remarkably, one exclusion criterion—prior voluntary sterilisation—has prompted little critical commentary. The two justifications offered (...) for restricting funding for IVF on the basis of voluntary sterilisation are that there are cheaper options than IVF for sterilised individuals who want children, and society should not have to pay for IVF for persons who are infertile by choice. I argue that both of these justifications are unsatisfactory, insofar as they contravene the chief value underlying, and current practices of, Canadian healthcare, and rely on problematic ascriptions of personal responsibility for health. (shrink)

In this paper, I discuss an example from Buchanan of active voluntary euthanasia (AVE). I first refute objections to the intuitive permissibility of the killing described in the example. After explaining why the killing is intentional, I evaluate Buchanan's solution to the ‘problem of intending death’. According to Buchanan, what justifies a physician in intentionally bringing about a patient's death by AVE is a principle that embodies the values of patient self-determination and well-being. I argue that these two considerations (...) are not sufficient for justifying AVE. The motive of the physician matters, but it is his desire rather than his intention that is relevant. An ethical physician may bring about intentionally the death of his patient if in forming his intention, he began with an appropriate desire to keep the patient alive as well as a legitimate desire to prevent prolonged suffering, with the latter outweighing the former. The ethical physician also desires to respect the choice of his patient wherever possible. On my account, the physician should be guided by the virtues and goals of his profession rather than by strict ‘all-or-nothing’ principles. I defend my account by describing the advantages of my account, and dismissing possible objections. (shrink)

From 1966 to 1990 there was a marked rise in the use of voluntary sterilization in Flanders, followed by a fall in women under the age of 40. In the last three decades a remarkable change has occurred in the choice between male and female sterilization. Compared with many other European countries, sterilization of men and women is widely practised in Flanders. In 1996 40% of 40- to 44-year-old women underwent voluntarily sterilization or had voluntarily sterilized partners. Additionally, (...) another 9% of these women were sterilized for medical reasons. Voluntarily sterilized couples are on average older than non-sterilized couples, and, obviously, consider their families to be complete. For couples with a complete family, parity is the most important predictor in the choice between sterilization and non-sterilization. Regularly practising Catholics undergo sterilization least. Also, highly educated couples are less likely to have a sterilization. Couples who ever experienced a contraceptive failure choose sterilization more. Voluntary sterilization has no substantial effect on the fertility of the population since the effect on the prevented numbers of both wanted and unwanted births appears to be small. However, if voluntary sterilization did not occur, differences in fertility within the population would probably increase. It is presumed that the popularity of voluntary sterilization in Flanders has passed its peak and that its use will decline in the near future. (shrink)

Pickard’s contribution reminds me that conceptualizing choice is no simple matter. Pickard sees choice as entirely voluntary, while I argue that choice is only partially voluntary. Choices are based on appraisals of situations, which fluctuate due to external circumstances and internal states such as emotion and mood. Habit itself competes with volition, and all these parameters vary with development. Psychological factors such as delay discounting and especially one's belief in one's agency are critical for volitional (...) choice as well. (shrink)

Normative thinking about addiction has traditionally been divided between, on the one hand, a medical model which sees addiction as a disease characterized by compulsive and relapsing drug use over which the addict has little or no control and, on the other, a moral model which sees addiction as a choice characterized by voluntary behaviour under the control of the addict. Proponents of the former appeal to evidence showing that regular consumption of drugs causes persistent changes in the (...) brain structures and functions known to be involved in the motivation of behavior. On this evidence, it is often concluded that becoming addicted involves a transition from voluntary, chosen drug use to non-voluntary compulsive drug use. Against this view, proponents of the moral model provide ample evidence that addictive drug use involves voluntary chosen behaviour. In this paper we argue that although they are right about something, both views are mistaken. We present a third model that neither rules out the view of addictive drug use as compulsive, nor that it involves voluntary chosen behavior. -/- . (shrink)

This paper considers the normative assessment of bonded labor from the perspectives of libertarianism and Paretian welfare economics. I argue that neither theory can account for our objections to bonded labor arrangements; moreover, they fail in interesting ways. Reflecting on their normative failures focuses us on other considerations besides individual choice and efficiency. Such considerations include: the effects of labor markets on workers' preferences and capacities; the exploitation of the vulnerabilities of the poor; and the permanent binding of one (...) person to another. (shrink)

Does the desirability of social institutions for public goods provision depend on the extent to which they include mechanisms for endogenous enforcement of cooperative behavior? We consider alternative institutions that vary the use of direct punishments to promote social cooperation. In one institution, subjects participate in a public goods experiment in which an initial stage of voluntary contribution is followed by a second stage of voluntary, costly sanctioning. Another institution consists of the voluntary contribution stage only, with (...) no subsequent opportunity to sanction. In a third stage subjects vote for which institution they prefer for future interactions: do they prefer one that does allow sanctions or one that does not allow sanctions? Our results show that even though sanctions are frequently used when available, the clear majority of individuals vote for the institution that does not allow sanctions. Thus, a distinction is required between the principles that guide the choice of institutions and the principles that apply to actions guided by institutions. Our results indicate that it is the wealth generated by the institution that determines its desirability. (shrink)

Left freely to themselves, a group of rational individuals often fail to cooperate even when the product of social cooperation is beneficial to all. Hence, the author argues, a rule of collective decision making is clearly needed that specifies how social cooperation should be organised among contributing individuals. Suzumura gives a systematic presentation of the Arrovian impossibility theorems of social choice theory, so as to describe and enumerate the various factors that are responsible for the stability of the (...) class='Hi'>voluntary association of free and rational individuals. Among other topics covered are an axiomatic characterisation of the concept of a rational choice, the simple majority decision rule and its extensions, the social choice implications of the concept of equity as nonenvy, the constrained majoritarian collective choice rules and the conflict between the Paretian ethics and the libertarian claims of individual rights. (shrink)

Presents a sustained and original challenge to the orthodox understanding of the relationship between morality and voluntary choice. The two main theses of the book are that we can be morally responsible for aspects of our character that we have not chosen or otherwise authored, and that we can enter into interpersonal commitments to which we have not voluntarily consented.

Problems of cooperation have often been simplified as the choice between defection and cooperation, although in many empirical situations it is also possible to walk away from the interaction. We present the results of two lab-in-the-field experiments with a diverse pool of subjects who play optional and compulsory public goods games both with and without punishment. We find that the most important institution to foster cooperation is punishment, which is more effective in a compulsory game. In contrast to Rand (...) and Nowak (Nat Commun 2(1):1–7, 2011), we find that loners are not responsible for anti-social punishment, which is mostly imputable to low-contributors (free-riders). Loners neither totally free-ride nor they significantly punish cooperators (or other types of players): they simply avoid all forms of participation whenever possible. (shrink)

Claims that life is God's property or that life is God's gift have been prominent among reasons for rejecting the choice of death as morally legitimate. This essay examines the worth of arguments based upon such claims, considering what assumptions these arguments would require and what implications an approach based on them might have for particular types of cases. The essay concludes with a reflection on the role of significant metaphors in moral judgment.

In his paper 'The Voluntariness of Judgment' Mark Thomas Walker claims that judgments are voluntary acts. According to Walker, theoretical reasoning can be seen as an instance of practical reasoning, and the outcomes of practical reasoning are actions. There are two reasons why Walker's argument does not establish this conclusion: (i) There are non-reflective judgments which cannot reasonably be described as instances of practical reasoning; Walker's argument does not apply to these judgments, (ii) If one judges that p as (...) a result of deliberation, one has had no choice sincerely to judge as well that non-p instead of p , that is, one cannot judge contrary to one's evidence. Therefore, reflective judgments are not voluntary actions. Walker cannot show that reflective judgments are voluntary, because he fails to give a clear notion of a voluntary action and the role of choice. (shrink)

In “The Choice Theory of Contracts,” we explain contractual freedom and celebrate the plurality of contract types. Here, we reply to critics by refining choice theory and showing how it fits and shapes what we term the “Contract Canon”. I. Freedom. (1) Charles Fried challenges our account of Kantian autonomy, but his views, we show, largely converge with choice theory. (2) Nathan Oman argues for a commerce-enhancing account of autonomy. We counter that he arbitrarily slights noncommercial spheres (...) central to human interaction. (3) Yitzhak Benbaji suggests that choice theory’s commitment to autonomy is overly perfectionist. Happily, in response to Benbaji, we can cite with approval Charles Fried’s point that contract types are “enabling our liberties.” II. Choice. (4) Aditi Bagchi criticizes our inattention to impediments to choice. We show how choice theory’s commitments to both multiplicity and relational justice ameliorate these impediments. (5) Gregory Klass explores parol evidence to highlight the mechanisms of choice. We substantially concur with his position, and show how such mechanisms can ensure voluntariness, an essential element of choice. (6) Oren Bar-Gill and Clayton Gillette question the institutional capacity of existing legal actors to implement choice theory. Working from the example of cohabitation, we offer a somewhat more optimistic view. III. Contracts. (7) Peter Benson contends our focus on the rational slights the reasonable. Although we did not use this Rawlsian vocabulary, choice theory complies with its strictures — more so than transfer theory. (8) Daniel Markovits and Alan Schwartz claim provocatively that contract theory must: capitulate before pluralism (as they endorse); leverage it; or fall victim to a so-called “embracing” approach (their charge against us). We reject the charge that choice theory is foundationally value-pluralist. Instead, we cabin pluralism and put it to work. (9) The Contract Canon starts on the next big step for choice theory by explaining existing doctrine (rebutting Benson on lack of fit) and helping adjudicate contract practice (countering Markovits and Schwartz on the vices of our pluralism). Each Article in this Issue advances the field; each prompts us to refine choice theory — all steps, we hope, toward a more just and justified law of contract. (shrink)

This essay, as will become obvious, owes a huge debt to Mark Kelman, particularly to his article “Interpretative Construction in the Substantive Criminal Law.” That debt is one of both concept and content. There is rich irony in my aping Kelman's deconstructionist enterprise, for I do not share his enthusiasm for either the “insights” or the political agenda of the Critical Legal Studies movement. I do not believe that either the law in general or the criminal law in particular is (...) radically indeterminate, rife with internal contradictions, or an expression of the interests of a dominant economic class. And although, like Kelman, I believe that the freedom/determinism, act/character, and rule/principle dichotomies must ultimately be dealt with in order to have a completely satisfactory account of criminal law, I also believe that these dichotomies loom just as large in other areas of law and in normative theory generally. They are problems for Crits as well as for liberal-legalists. In any event, my intentions in undertaking this deconstructionist enterprise are modestly reformist, not revolutionary. I do not intend to shift any paradigms, but to work with well-established ones. I will assume that criminal law seeks to accomplish some blend of retributive response to and deterrence of culpable choices, choices to defy moral norms that are also legal norms. I will also assume that a culpable choice is one that reflects negatively on the values held by the chooser. Beyond these quite modest assumptions, I need not and will not venture in this paper, realizing, of course, that much has and can be written about the proper aims of punishment and the proper account of culpability. (shrink)

With the cure rate for many pediatric malignancies now between 70% and 90%, infertility becomes an increasingly important issue. Strategies for preserving fertility in girls and adolescent women occur in two distinct phases. The first phase includes oophorectomy and cryopreservation of ovarian cortex slices or individual oocytes; ultrasound-guided needle aspiration of oocytes, with or without in vitro maturation, followed by cryopreservation; and ovarian autografting to a distant site. The second phase occurs if the woman chooses to pursue pregnancy, and includes (...) IVM of the oocytes, followed by in vitro fertilization and transfer of any created embryos to the woman's uterus. For ovarian autografting, the woman would undergo menotropin ovarian stimulation and retrieval of matured oocytes. The ethical challenges with each of these phases are many of fertility preservation and include issues of informed choice. The lack of proven benefit with these strategies and the associated potential physical and psychological harms require careful attention to the key elements of informed choice, which include decisional capacity, disclosure, understanding and voluntariness, and to the benefits of in-depth counseling to promote free and informed choice at a time that is emotionally difficult for the decision makers. (shrink)

A statewide program in California to detect neural tube and other birth defects may revive enthusiasm for mass prenatal screening. Participation in the program is voluntary, but all expectant mothers are asked to sign a statement of “informed consent/refusal.” So far California's program seems to be working well, but questions for the future include the level of participation, the possibility that normal fetuses will be aborted, the kinds of information given to women, and the elusive nature of free (...) class='Hi'>choice. (shrink)

In response to the COVID‐19 pandemic, some authors have advocated a program of controlled voluntary infection (CVI) with SARS‐CoV‐2. Under CVI, during periods where the medical system is under capacity, volunteers from low‐risk groups would be intentionally infected after giving informed consent, and then quarantined until they have developed immunity. Proponents claim that this could have benefits for society, such as building herd immunity and ensuring that critical workers won’t be incapacitated during the peak of the infection. They also (...) claim that this could have benefits for individuals, such as being safely exempted from lockdown measures and (for individuals who are likely to be infected anyway) ensuring that the infection happens under relatively less dangerous conditions. Some respond that CVI would unethical. Here, I argue that, while CVI may or may not be ill‐advised for empirical reasons, there are no in‐principle ethical objections to it (i.e., if CVI would work as well as its proponents think, it would be ethical to implement it). I present three arguments for this conclusion. The first is an argument from informed consent: informed consent to relevantly similar medical procedures renders performing these procedures permissible, so informed consent to CVI would render it permissible. The second is an argument from reasonable beneficence: it draws on recent work by Caspar Hare on relevantly similar choices to argue that CVI is permissible. The third is an argument from precedent: smallpox variolation was permissible, and CVI is relevantly similar to that, so CVI is permissible. (shrink)

Choice-based conceptions of substantive responsibility face a number of powerful counterexamples. In order to avoid some of these counterexamples, it is widely claimed that agents are substantively responsible for disadvantage arising from their choices only when the option set from which they chose satisfied a reasonability criterion. I examine three possible justifications for a reasonability criterion: an agent-responsibility-based motivation, a voluntariness-based motivation, and what I call a ‘denied-claim’-based motivation. In each case, I argue that the putative motivation cannot in (...) fact justify a reasonability condition. I end with some comments on what this result means for choice-based conceptions of substantive responsibility. (shrink)

This paper presents the case of a young man with a diagnosis of schizophrenia, who agreed to inpatient treatment primarily to avoid being formally detained. I draw on Peter Breggin's early critique of coercion of informal patients to supply an updated discussion of the ethical issues raised. Central questions are whether the admission was coercive, and if so, whether unethical. Whether or not involuntary admission would be justified, moral discomfort surrounds its appearance as a threat. This arises in part from (...) ambivalence about autonomy: although a ‘choice’ is made, the threat of detention impinges on the patient's choice. Recent legal developments provide some experience of safeguarding those whose consent is not obtained. This highlights the lack of safeguards in this ‘gap’ and suggests that we have the tools with which to begin to deal with the problem. (shrink)

Francesco Berto proposed a logic for imaginative episodes. The logic establishes certain (in)validities concerning episodic imagination. They are not all equally plausible as principles of episodic imagination. The logic also does not model that the initial input of an imaginative episode is deliberately chosen.Stit-imagination logic models the imagining agent’s deliberate choice of the content of their imagining. However, the logic does not model the episodic nature of imagination. The present paper combines the two logics, thereby modelling imaginative episodes with (...) deliberately chosen initial input. We use a combination ofstit-imagination logic and a content-sensitive variably strict conditional à la Berto, for which we give a Chellas–Segerberg semantics. The proposed semantics has the following advantages over Berto’s: (i) we model thedeliberate choiceof initial input of imaginative episodes (in a multi-agent setting), (ii) we showframe correspondencesfor axiomatic analogues of Berto’s validities, which (iii) allows thepossibility to disregard axiomsthat might be considered not plausible as principles concerning imaginative episodes. We do not take a definite stance on whether theseshouldbe disregarded but give reasons for why one might want to disregard them. Finally, we compare our semantics briefly with recent work, which aims to model voluntary imagination, and argue that our semantics models different aspects. (shrink)