The US federal research regulations prohibit informed consent, whether written or oral, from including provisions in which human subjects waive or appear to waive legal rights. We argue that policies that prevent human subjects from waiving legal rights in research can be ethically justified under the rationale of group, soft paternalism. These policies protect competent adults from making adverse decisions about health and legal matters that they may not understand fully. However, this rationale is less defensible (...) if there is a comprehensive compensation for injury programme available in which subjects are asked to waive some legal rights in order to participate in the programme. In this situation, subjects should be allowed to waive some legal rights to obtain the benefits of the programme. (shrink)

Criminal defendants in many countries are faced with a dilemma: If they waive their right to trial and plead guilty, they typically receive charge or sentence reductions in exchange for having done so. If they exercise their right to trial and are found guilty, they often receive stiffer sanctions than if they had pled guilty. I characterize the former as ‘waiver rewards’ and the latter as ‘non-waiver penalties.’ After clarifying the two and considering the relation between them, I briefly (...) explicate the grounds for a moral right to trial. I then assess the defensibility of such rewards and penalties. In addition to considering whether waiver rewards and non-waiver penalties serve the aims of legal punishment, I address the three main arguments for permitting them. The first suggests that defendants willing to plead display more remorse for their crimes and thus are deserving of lighter sentences. The second defends waiver rewards and non-waiver penalties in cases where prosecutors are alleged to know that defendants are guilty but face problems establishing their guilt at trial. The third holds that guilty defendants who are willing to plead conserve scarce state resources and should be rewarded for it, whereas those unwilling to plead squander such resources and should be penalized accordingly. I contend that none of these arguments provides persuasive grounds for waiver rewards or non-waiver penalties, even on the assumption that we can distinguish those defendants who should waive their right to trial from those who should not. This conclusion presents a fundamental challenge to contemporary plea bargaining practices. (shrink)

Critical ethical questions arise concerning whether studies among adolescents of new behavioral and biomedical HIV preventive interventions such as Pre-Exposure Prophylaxis should obtain parental permission. This paper examines the relevant regulations and ethical guidance concerning waivers of parental permission, and arguments for and against such waivers. Opponents of such waivers may argue that adolescent decision-making is “too immature” and that parents always have rights to decide how to protect their children. Yet requiring parental permission may put adolescents at risk, (...) and/or limit adolescent participation, jeopardizing study findings’ validity. This paper presents recommendations on when researchers and Institutional Review Boards should waive parental permission, and what special protections should be adopted for adolescents who consent for themselves, e.g., assuring adolescent privacy and confidentiality, screening for capacity to consent, and identifying adolescents who are at elevated risk from study participation. We also present a series of specific areas for future research to design tools to help make these assessments, and to inform researcher and IRB decisions. These recommendations can help ensure that research is conducted that can aid adolescents at risk for HIV, while minimizing risks and protecting these individuals' rights as much as possible. (shrink)

This article argues that, given the current pervasive uncertainty about the reliability of jury deliberation, we ought to treat it with epistemic humility. I further argue that epistemic humility should be expressed and enforced by turning jury deliberation from a mandatory rule of the jury trial to a waivable right of the defendant. I consider two main objections to my argument: the first one concerns the putative self-defeatingness of humility attitudes; the second objection points to the burdensomeness of granting an (...) unconditional jury deliberation waiver to the defendant. (shrink)

It appears at least intuitively appropriate to claim that we owe it to victims to punish those who have wronged them. It also seems plausible to state that we owe it to society to punish those who have violated its norms. However, do we also owe punishment to perpetrators themselves? In other words, do those who commit crimes have a moral right to be punished? This work examines the sustainability of the right to be punished from the standpoint of the (...) two main theories of rights—the will and the interest conceptions. The right to be punished is shown to be largely indefensible on both accounts: on the will theory, the right to be punished conflicts with autonomy, and it can neither be claimed nor waived by a perpetrator; on the interest theory, a perpetrator’s interest in punishment, inasmuch as it exists, is not sufficient to ground a duty on the part of the state. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Update on Waiving Informed Consent in Emergency ResearchCharles R. McCarthyMadam: The closing statement of my article on Waiving Informed Consent in Emergency Research published in the June 1995 issue of the Kennedy Institute of Ethics Journal was: "No doubt we shall hear more of this issue."Indeed, we have heard much more on this issue. (1) In May 1995, after my article had already gone to press, the Food and (...) Drug Administration (FDA) and the National Institutes of Health (NIH) jointly published a report on the Public Forum on Informed Consent in Clinical Research Conducted in Emergency Circumstances. (2) On July 26, 1995, the Department of Health and Human Services (HHS) published in the Federal Register a Notice of Action Related to Emergency Research Activity (60 FR 38353-54). This action constituted a waiver of the requirement to obtain prior informed consent from subjects, as required by the Department's Regulations for the Protection of Human Subjects (45 CFR 46), for one specific NIH-funded project under strictly defined circumstances. (3) On September 21, 1995, FDA published a proposed rule to amend its current informed consent regulations (21 CFR 50) to permit harmonization of federal policies on emergency research and to reduce confusion as to when such research can proceed without obtaining prior informed consent from research subjects. The proposed regulation provides a narrow exception to the requirement for obtaining and documenting informed consent from each human research subject.The HHS waiver (a harbinger of a proposed amendment to its regulations) and the FDA proposed rule are intended to be harmonized so that an Institutional Review Board (IRB) in compliance with one set of regulations relative to the waiver of informed consent will be, ipso facto, in compliance with the other set of regulations.In brief: The FDA proposed amendments will allow an IRB to waive informed consent in emergency situations when:1. The human subjects are in a life threatening condition;2. Obtaining informed consent is not feasible because: (i) the subjects will not be able to provide consent because of their medical condition, (ii) the intervention must be administered before consent from legally authorized representatives is feasible, (iii) there is no reasonable way to identify prospectively the individuals likely to become eligible for the research because the emergence of the condition to be studied cannot be predicted reliably in particular individuals; [End Page 385]3. The opportunity to participate is in the interest of the subjects because: (i) a life threatening situation necessitates intervention, (ii) the risk of the intervention is reasonable in the light of what is known about the medical condition and the patient, the risks and benefits of current therapy, if any, and what is known about the risks and benefits of the proposed intervention or activity;4. The research could not practicably be carried out without the waiver;5. Additional protection of the rights and welfare of the subjects will be provided including, at least: (i) consultation (which may include consultation carried out by the IRB itself) with representatives of the communities from which the subjects will be drawn, (ii) public disclosure prior to commencement of the study sufficient to describe the study and its risks and benefits, (iii) public disclosure of sufficient information following completion of the study to apprise the community and researchers of the study and its results, and (iv) the establishment of an independent data and safety monitoring board;6. The IRB has reviewed and approved an informed consent document for use with subjects or legal representatives in situations in which obtaining such consent may be feasible for some subjects.The preamble to the proposed amendments to the regulations and the amendments themselves contain much more information than is presented here. Readers are therefore encouraged to study the proposals carefully. The public comment period ended November 6, and the FDA is expected to issue a final rule in 1996.Charles R. McCarthyKennedy Institute of Ethics Georgetown University Washington, DCCopyright © 1995 The Johns Hopkins University Press... (shrink)

Recently, an agonizing twist intersecting predictive genetic tests and surrogacy contracts made news headlines in Canada. The intended parents, a couple from British Columbia, instructed the surrogate mother with whom they were working to undergo First Trimester Screening and Chorionic Villi Sampling, which revealed the fetus likely had Down syndrome. The parents directed the surrogate to terminate the fetus or they would abdicate their parental claim upon birth. This story raised numerous legal and ethical questions relating to the transferability of (...) decision making for prenatal screening, diagnostic tests, and the connected decision of termination when additional interested parties – the intended parents – are involved in the medical decision-making relationship. First, although the surrogate is the patient, what are the implications when the intended parents' wishes influence or even dictate the relationship between her and her obstetrician and genetic counselor? Second, if the intended parents' level of authority reaches explicit demands, may the intended parents ethically and legally require the surrogate to waive her right to informed consent for prenatal screening and diagnosis? (shrink)

The use of medical records in research can yield information that is difficult to obtain by other means. When such records are released to investigators in identifiable form, however, substantial privacy and confidentiality risks may be created. These risks become more common and more serious as medical records move to an electronic format. In 1996, the state of Minnesota enacted legislation with respect to consent requirements for the use of medical records in research. This legislation has been widely criticized because—it (...) is claimed—it creates an unnecessary impediment to research. In this article, we show that these arguments rest upon misinterpretation and/or misrepresentation of the 1996 legislation. A consent requirement had actually been present in Minnesota since 1976 (though codified in a patient rights statute rather than a privacy statute). The 1996 law does not require specific consent, as often claimed, but rather only a general authorization. The campaign against the Minnesota legislation appears to have been motivated by concern with respect to the then impending federal privacy rule. The HIPAA rule, as enacted, is in fact less stringent with respect to consent than the Minnesota consent law. On the other hand, the Minnesota consent law has not been effectively applied or enforced. As we change the way we manage sensitive medical information, new efforts are needed to provide protection against the confidentiality risks in research. Patient consent is an important tool in this regard. New instrumentalities are needed to solicit and document consent. (shrink)

This paper gives an ethical argument for temporarily waiving intellectual property protections for COVID-19 vaccines. It examines two proposals under discussion at the World Trade Organization : the India/South Africa proposal and the WTO Director General proposal. Section I explains the background leading up to the WTO debate. Section II rebuts ethical arguments for retaining current IP protections, which appeal to benefiting society by spurring innovation and protecting rightful ownership. It sets forth positive ethical arguments for a temporary waiver that (...) appeal to standing in solidarity and holding companies accountable. After examining built-in exceptions to existing agreements and finding them inadequate, the paper replies to objections to a temporary waiver and concludes, in section III, that the ethical argument for temporarily waiving IP protection for COVID-19 vaccines is strong. There are no data in this work. (shrink)

Privacy rights can surely be waived. But can they also be forfeited? If so, why and under what conditions? This article takes up these questions by developing a novel theory of privacy rights forfeiture that draws inspiration from Judith Thomson’s canonical work on privacy. The paper identifies two species of forfeiture rooted in modes of negligent and reckless conduct and argues that both self-directed and other-regarding considerations play a role in grounding forfeiture. The paper also contributes to the (...) literature by proposing a new taxonomy of how Hohfeldian entitlements can be divested generally. It likewise engages at length with a recent article by Benedict Rumbold and James Wilson in which the authors criticize Thomson’s work and appear to reject the very idea of privacy forfeiture. In response, I make the case that Rumbold and Wilson’s forfeiture-free model of privacy is unconvincing on substantive moral grounds. (shrink)

Should the law recognize an individual's right not to be a genetic parent when genetic parenthood does not carry with it legal or gestational parenthood? If so, should we allow individuals to waive that right in advance, either by contract or a less formal means? How should the law's treatment of gestational and legal parenthood inform these questions? Developments in reproductive technology have brought these questions to the fore, most prominently in the preembryo disposition cases a number of courts (...) have confronted - disputes over the use of stored frozen preembryos that couples have fertilized in the course of In Vitro Fertilization (IVF) - but other examples abound.In this Article, I argue that in analyzing these cases it is essential to unbundle the possible rights not to be a genetic, gestational, and legal parent, and to recognize that the three rights do not stand and fall together. I show that we cannot move from the discourse surrounding the rights not to be a gestational and legal parent to a justification for a right not to be a genetic parent. Instead, I argue that the normative mooring of the right not to be a genetic parent is best understood as a way of protecting individuals from what I call "attributional parenthood," a harm that stems from the social assignment of the status of parent to the provider of genetic material that persists notwithstanding the fact that the legal system has declared him or her a non-parent.Using this framework, I argue for the recognition of the right not to be a genetic parent. However, I reject the claim, common among courts and commentators, that this right should not be capable of advance waiver. I instead conclude that we should permit advance waiver of the right through contract, with several interventions aimed at improving contractual consent. In preembryo disposition disputes where the parties have not contracted, I argue for a general default rule of non-use, perhaps with a sub-rule permitting use when non-use would mean the impossibility of one party ever having any genetic children. (shrink)

This article concerns the nature and limits of individuals’ rights to privacy over information that they have made public. For some, even suggesting that an individual can have a right to privacy over such information may seem paradoxical. First, one has no right to privacy over information that was never private to begin with. Second, insofar as one makes once-private information public – whether intentionally or unintentionally – one waives one’s right to privacy to that information. In this article, (...) however, we suggest the moral situation is more complicated than this. Rather, we argue that there is a class of public information – namely, once-private information that individuals have made public unintentionally – which remains within the scope of an individuals’ right to privacy, even when it has passed into the public domain. Significantly, this class includes any information rights-holders were unaware could be inferred from information they have made public and which they would not otherwise have wanted to be in the public domain. As we show, as well as clarifying several everyday dilemmas with regards to individuals’ privacy rights, this finding has elucidates a number of problems in the ethics of Big Data. (shrink)

There is a common view in medical ethics that the patient's right to be informed entails, as well, a correlative right not to be informed, i.e., to waive one's right to information. This paper argues, from a consideration of the concept of autonomy as the foundation for rights, that there can be no such ‘right’ to refuse relevant information, and that the claims for such a right are inconsistent with both deontological and utilitarian ethics. Further, the right to (...) be informed is shown to be a mandatory right (though not a welfare right); persons are thus seen to have both a right and a duty to be informed. Finally, the consequences of this view are addressed: since the way in which we conceptualize our problems tends to determine the actions we take to resolve them, it is important properly to conceptualize patients' requests not to be informed. There may be many reasons for acting in accord with such a request, but it is a mistake to conceptualize one's act as ‘respecting a right possessed by persons’. Keywords: medical ethics, informed consent, autonomy, information-waivers, rights, obligations CiteULike Connotea Del.icio.us What's this? (shrink)

In this paper I argue, against the current consensus, that the right to withdraw from research is sometimes alienable. In other words, research subjects are sometimes morally permitted to waive their right to withdraw. The argument proceeds in three major steps. In the first step, I argue that rights typically should be presumed alienable, both because that is not illegitimately coercive and because the general paternalistic motivation for keeping them inalienable is untenable. In the second step of the (...) argument, I consider three special characteristics of the right to withdraw, first that its waiver might be exploitative, second that research involves intimate bodily access, and third that it is irreversible. I argue that none of these characteristics justify an inalienable right to withdraw. In the third step, I examine four considerations often taken to justify various other allegedly inalienable rights: concerns about treating yourself merely as a means as might be the case in suicide, concerns about revoking all your future freedoms in slavery contracts, the resolution of coordination problems, and public interest. I argue that the motivations involved in these four types of situations do not apply to the right to withdraw from research. (shrink)

Basic human rights are supposed to protect people from abuse and harm. They are the means whereby we protect our humanity. One would expect, therefore, that basic human rights would be valid and sacred in any context, including industrial relations. However, the complexity of the employee–employer relationship obscures this issue, and it is not clear whether such rights can be protected or whether they are valid in the context of industrial relations. Since rights are relational, they (...) are preconditioned on the special nature of the relationship between employee and employer. Hence, the specific meaning that these rights have in industrial relations cannot be grounded in the notion of human rights as such, but rather depends on the special relationships between employers and employees. Though much legislation has been passed to regulate the relationship between employees and employers, the issues surrounding this relationship remain one of the most debated topics in business ethics. Our paper focuses specifically on the right to equal pay and the right to privacy. With respect to the right to property, the paper examines whether there is a conflict between general human rights and the fundamental right of employers to their property. The Israeli legislature has responded to this conflict by enacting ‘protective laws’ that legally outline and mandate certain human rights. Under these laws, employees are prevented and prohibited from waiving the rights granted to them by law, even if employed in private industries. Despite this legislative effort, market forces are at times stronger, and consequently some basic rights are not fully applied or implemented. (shrink)

Ethical guidelines commonly state that research subjects should have a right to withdraw consent to participate. According to the guidelines we have studied, this right applies also to research on biological samples. However, research conducted on human subjects themselves differs in important respects from research on biological samples. It is therefore not obvious that the same rights should be granted research participants in the two cases. This paper investigates arguments for and against granting a right to withdraw consent to (...) research on biobank samples. We conclude that (1) there are no explicit arguments for such a right in the guidelines we have studied, (2) the arguments against such a right are inconclusive, (3) considerations of autonomy, privacy, personal integrity, and trust in medical research provide sufficient reasons for granting a right to withdraw consent to research on biobank samples, (4) in certain cases, research participants should be allowed to waive this right. (shrink)

Ravelingien et al1 argue that, given the restrictions that must be imposed on recipients of xenotransplanted organs, we should conduct clinical trials of xenotransplantation only on patients in a persistent vegetative state. I argue that there is no ethical barrier to using terminally ill patients instead. Such patients can choose to waive their rights to the liberties that xenotransplantation would probably restrict; it is surely rational to prefer to waive your rights rather than to die, and (...) permissible to allow patients to make this choice.Perhaps the single most important advance in the history of moral thought occurred when it came to be generally recognised that all people are protected by rights that are inviolable, at least without their consent. The precise nature and content of these rights is controversial, but there is a consensus among reasonable people over their core. We all have a right to life, to liberty, to security of person and to equality before the law. Other rights—so-called positive rights, such as the right to economic security, or cultural rights, for instance—may be controversial, but we all agree at least on these.Ravelingien et al1 therefore seem to be on solid ground when they conclude that it would not be permissible to use living persons as subjects in clinical trials of xenotransplantation, as such trials, potentially or actually, result in the violation of the core human rights of the subjects. Their argument is as follows:" Xenotransplantation carries with it a currently unquantifiable risk of the transmission of viruses, from the animal that is the source of the organ transplanted, to the human recipient. Such viruses could have potentially catastrophic consequences, up to and including triggering a global and devastating pandemic. Therefore, it would be necessary to monitor the health status of recipients of … ". (shrink)

Preclinical xenotransplantation research using genetically engineered pigs has begun to show some promising results and could one day offer a scalable means of addressing organ shortage. While it is a fundamental tenet of ethical human subject research that participants have a right to withdraw from research once enrolled, several scholars have argued that the right to withdraw from xenotransplant research should be suspended because of the public health risks posed by xenozoonotic transmission. Here, we present a comprehensive critical evaluation of (...) the claim that xenotransplant recipients should be required to waive their right to withdraw from lifelong biosurveillance. We conclude that if xenotransplantation requires participants to waive their right to withdraw, then clinical trials may not be justifiable, given the ethical and legal obstacles involved with doing so. Consequently, if clinical trials are permitted with a right to withdraw, then they may pose a significant public health risk. (shrink)

Basic human rights are supposed to protect people from abuse and harm. They are the means whereby we protect our humanity. One would expect, therefore, that basic human rights would be valid and sacred in any context, including industrial relations. However, the complexity of the employee–employer relationship obscures this issue, and it is not clear whether such rights can be protected or whether they are valid in the context of industrial relations. Since rights are relational, they (...) are preconditioned on the special nature of the relationship between employee and employer. Hence, the specific meaning that these rights have in industrial relations cannot be grounded in the notion of human rights as such, but rather depends on the special relationships between employers and employees. Though much legislation has been passed to regulate the relationship between employees and employers, the issues surrounding this relationship remain one of the most debated topics in business ethics. Our paper focuses specifically on the right to equal pay and the right to privacy. With respect to the right to property, the paper examines whether there is a conflict between general human rights and the fundamental right of employers to their property. The Israeli legislature has responded to this conflict by enacting ‘protective laws’ that legally outline and mandate certain human rights. Under these laws, employees are prevented and prohibited from waiving the rights granted to them by law, even if employed in private industries. Despite this legislative effort, market forces are at times stronger, and consequently some basic rights are not fully applied or implemented. (shrink)

Some rights are so important for human autonomy and well-being that many scholars insist they should not be waived, traded, or abandoned. Privacy is a recent addition to this list. At the other end of the spectrum is the belief that privacy is a mere unimportant interest or preference. This paper defends a middle path between viewing privacy as an inalienable, non-waivable, non-transferrable right and the view of privacy as a mere subjective interest. First, an account of privacy is (...) offered that clarifies the concept and demonstrates how privacy is directly related to human health and well-being. Second, along with considering and rejecting several accounts for why privacy might be considered an inalienable right, an argument is offered for why it is morally permissible to waive, transfer, abandon, or alienate privacy. (shrink)

It is common for philosophers and legal theorists to bemoan the proliferation of the language of rights in popular discourse.1 In a wide range of contemporary public political and ethical debates, disputants are quick to appeal to the existence of rights that support their position – the ‘human rights’ of innocent victims of war, animals’ noninterference rights, individuals’ and businesses’ rights to economic freedom. It is often maintained, with some plausibility, that these public disputes involve (...) hasty and undefended reliance on assumptions that certain specific rights exist, and that such profligacy with the language of rights does little to clarify and enhance public debate. By contrast, the two prominent theoretical analyses of the concept ‘a right’ – the Will Theory and the Interest Theory – are both revisionary theories which, if widely adopted, would require people to revise their usage of the term ‘a right’. The Will Theory is an explicitly revisionary theory, according to which rights can be held only by beings capable of waiving their rights (and hence rights cannot be held by animals or young children).2 I shall argue that traditional versions of the Interest Theory would also require revisions of popular usage of the term ‘a right’ (by implying that certain property rights and promissory rights cannot genuinely qualify as rights). Such revisionary analyses of the concept ‘a right’ might be applauded for aiming to enhance the conceptual clarity of public debate. However, my stance in this paper is avowedly non-revisionary. My aims are to seek an analysis of the concept ‘a right’ that accords with the multifarious ways in which this term is used in everyday ethical and political debates, and to argue that philosophers and legal theorists would benefit from adopting such a non-revisionary approach. (shrink)

In this article, the logical implications of a right to life are examined. It is first argued that the prohibition of Termination of life on request confers an inalienable right to life. A right is inalienable if it cannot legitimately be waived or transferred. Since voluntary euthanasia entails waiver of the right to life, the inalienability yields that it cannot be justified. Therefore, any ethical position that is in favor of voluntary euthanasia has to argue that the right to life (...) is an inalienable right and accept the conclusion that killing on request is justified. (shrink)

Can appealing to children’s rights help to solve the non-identity problem in cases of procreation? A number of philosophers have answered affirmatively, arguing that even if children cannot be harmed by being born into disadvantaged conditions, they may nevertheless be wronged if those conditions fail to meet a minimal standard of decency to which all children are putatively entitled. This paper defends the tenability of this view by outlining and responding to five prominent objections that have been raised against (...) it in the contemporary literature: the identifiability objection; the non-existence objection; the waiving of rights objection, the lack of legitimate complaint objection; and the unfairness objection. (shrink)

In March of 2014 Nature Publishing Group, responsible for the publication of journals such as Nature and ScientificAmerican, was subject to criticism for its requirement that contributing authors waive their moral rights in relation to their published articles. Some of the rights included under the umbrella term ‘moral rights’ are the right to have any copies of one’s work reproduced accurately and without alteration; the right to the accurate attribution of one’s work under one’s own name; (...) and the right not to have the work of others falsely attributed to oneself. The Nature Publishing case, from the criticism it sparked to the group’s own response, highlights a category error that occurs when moral rights are conceived of as property rights. Rather, moral rights are natural, non-proprietary rights. In correcting this category error it becomes evident that moral rights offences are not property offences, such as theft, but fraud offences—like plagiarism and forgery. Subsequently, whereas property rights, by definition, are able to be transferred or waived, it can be shown that no justification can be made for treating moral rights as transferrable or able to be waived. (shrink)

The rule that a patient should give a free, fully-informed consent to any therapeutic intervention is traditionally thought to express merely a right of the patient against the physician, and a duty of the physician towards the patient. On this view, the patient may waive that right with impugnity, a fact sometimes expressed in the notion of a right not to know. This paper argues that the rule also expresses a duty of the patient towards the physician and a (...) right of the physician against the patient. The argument turns, first, on the truism that a physician has no obligation to commit a battery, or unauthorized touching, and, second, on the thesis that a patient necessarily cannot consent to something that is unknown to him. The conclusion is drawn that a patient is not free to receive treatment voluntarily without knowledgeably authorizing it. CiteULike Connotea Del.icio.us What's this? (shrink)

What is privacy? What does privacy mean in relation to biobanking, in what way do the participants have an interest in privacy, (why) is there a right to privacy, and how should the privacy issue be regulated when it comes to biobank research? A relational view of privacy is argued for in this article, which takes as its basis a general discussion of several concepts of privacy and attempts at grounding privacy rights. In promoting and protecting the rights (...) that participants in biobank research might have to privacy, it is argued that their interests should be related to the specific context of the provision and reception of health care that participation in biobank research is connected with. Rather than just granting participants an exclusive right to or ownership of their health information, which must be waived in order to make biobank research possible, the privacy aspect of health information should be viewed in light of the moral rights and duties that accompany any involvement in a research based system of health services. (shrink)

A paradigmatic aspect of a paradigmatic kind of right is that the rights holder is the only one who can alienate it. When individuals waive rights, the normative source of that waiving is normally taken to be the individual herself. This moral feature?immunity?is usually in the background of discussions about rights. We bring it into the foreground here, with specific attention to a recent U.S. Supreme Court decision, Kentucky v. King (2011), concerning search and seizure (...) class='Hi'>rights. An entailment of the Court's decision is that, at least in some cases, a right can be removed by the intentional actions of the very party against whom the right supposedly protects the rights holder. We argue that the Court's decision is mistaken. The police officers in the case were not morally permitted, and should not be legally permitted, to intentionally create the very circumstances that result in the removal of an individual's right against forced, warrantless search and seizure. (shrink)

In a recent article in the Journal of Medicine and Philosophy , David Ost (1984) claims that patients do not have a right to waive their right to information. He argues that patients cannot make informed rational decisions without full information and thus, a right to waive information would involve a right to avoid one's responsibility to act as an autonomous moral agent. In support of his position, Ost cites a passage from Mill. Yet, a correct interpretation of (...) the passage in question would support one's right to remain uninformed in certain situations. If the information would hurt one's chances for survival or hurt one's ability to make calm, rational decisions, then one not only does not have a duty to find out the information, but one's exercising one's right to remain uninformed may be the only rational course of action to take. Keywords: medical ethics, informed consent, autonomy, information waiver, right, rationality CiteULike Connotea Del.icio.us What's this? (shrink)

To begin with, we need to separate off the easy talk of “rights” in which they seem automatically to correspond with a person’s duties or obligations. It is of course true that since I have a duty not to wreak murder or mayhem on you, you have the corresponding right that I not do these things. But so far, the talk of “rights” is simply an alternative way to speak of someone else’s duties; the special or unique point (...) to a “right” would seem to be that it places in its possessor’s hands the power to decide whether another person’s obligation toward him may be waived or not. I wouldn’t be able to waive my right to your not murdering me; although I could waive your right to be extraordinarily careful not to cause me harm—as I imagine boxers do (within the limits of the agreed-upon rules) or patients do who will be subjected to experimental therapies and sign consent forms or skydivers do who agree to be dropped from planes at high altitudes. A right places a constraint on the corresponding obligation. (shrink)

In a familiar interpretation, the Non-Identity Problem claims that persons whose existence depends on a seemingly harmful action cannot in fact be harmed through such an action. It is often objected that the persons in question can nevertheless be wronged through a violation of their rights. However, this objection seems to fail because these persons would readily waive any violated right in order to come into existence. The present article will analyze this Waiver Counter Argument in detail and (...) show why it does not succeed. First, it is necessary to distinguish between a prospective and a retrospective waiver scenario. In the prospective scenario an imagined person must consider whether she wants to waive a right in order to come into existence. In the retrospective scenario a person is asked whether she would prefer a wronged existence to never having been born. In both scenarios the conditions of a legitimate waiver of rights are not met, but for different reasons. On this basis, an argument against NIP can be developed. (shrink)

The relationship between legal pluralism and international human rights law is a complex and multi-faceted one. To fully appreciate the nature of this relationship, one has to desegregate the various forms of legal pluralism and analyse whether in their existence or operation they are compatible with international human rights law. This article undertakes such an exercise drawing on the jurisprudence of global and regional human rights bodies. In doing so, it goes beyond a mechanical audit of legal (...) pluralism in the light of specific human rights and explores more foundational issues such as the nature and extent of a State’s human rights obligations when legal pluralism exists within its borders, the possibility of waiving human rights and questions of cultural relativism which hover over any discussion of legal pluralism. What emerges from this analysis is that a tentative conceptual framework exists to regulate the relationship between legal pluralism and international human rights law. It is one that not only requires the State to render legal pluralism compatible with human rights but also stipulates the process by which this should be done. Effectively implemented, it can achieve this objective and harness the pull of religious and customary law to ensure the more effective protection of human rights. (shrink)

The Endangered Species Act of 1973 (ESA) is America's strongest environmental law. Its citizen-suit provisionany personawards implicit intrinsic value, de facto standing, and operational legal rights (sensu Christopher D. Stone) to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 (Palila v. Hawaii Dept. of Land & Natural Resources) and 2004 (Cetacean Community v. Bush), when the Ninth Circuit Court of Appeals ruled that animals could not sue (...) in their own name. Because the Supreme Court has interpreted its habitat destruction as the of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases (culminating with Bennett v. Spear) reconciles the ESA's citizen-suit provision with the particularized and concrete standing requirements devolved from Article III. (shrink)

The Endangered Species Act of 1973 is America's strongest environmental law. Its citizen-suit provision—permitting “any person” whomsoever to sue on behalf of a threatened or endangered species—awards implicit intrinsic value, de facto standing, and operational legal rights to listed species. Accordingly, some cases had gone forward in the federal courts in the name of various listed species between 1979 and 2004, when the Ninth Circuit Court of Appeals ruled that animals could not sue in their own name. Because the (...) Supreme Court has interpreted its habitat destruction as the “taking” of a listed species, some have argued that enforcement of the ESA's critical-habitat-protection provision is a “regulatory taking” of private property without just compensation, contrary to the Fifth Amendment of the Constitution. The courts have not agreed. The ESA citizen-suit provision appears to waive federal-court standing requirements devolved from Article III of the U.S. Constitution, creating much confusion and mutually contradictory rulings. A series of cases reconciles the ESA's citizen-suit provision with the particularized and concrete “injury-in-fact” standing requirements devolved from Article III. (shrink)

We argue that while presidential candidates have the right to medical privacy, the public nature and importance of the presidency generates a moral requirement that candidates waive those rights in certain circumstances. Specifically, candidates are required to disclose information about medical conditions that are likely to seriously undermine their ability to fulfill what we call the "core functions" of the office of the presidency. This requirement exists because (1) people have the right to be governed only with their (...) consent, (2) people's consent is meaningful only when they have access to information necessary for making informed voting decisions, (3) such information is necessary for making informed voting decisions, and (4) there are no countervailing reasons sufficiently strong to override this right. We also investigate alternative mechanisms for legally encouraging or requiring disclosure. Protecting the public's right to this information is of particular importance because of the documented history of deception and secrecy regarding the health of presidents and presidential candidates. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Index to Volume Fifty-SixArticlesBernier, Bernard, National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, 1 : 84-105Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, Chai-sik Chung, 2 : 253-280Buxton, Nicholas, The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, 3 : 392-408Chan, Sin Yee, The Confucian Notion of Jing (Respect), Sin Yee Chan, 2 : (...) 229-252Chong, Kim-chong, Zhuangzi and the Nature of Metaphor, 3 : 370-391Chung, Chai-sik, Between Principle and Situation: Contrasting Styles in the Japanese and Korean Traditions of Moral Culture, 2 : 253-280The Confucian Ideal of Harmony, Chenyang Li, 4 : 583-603The Confucian Notion of Jing.(Respect), Sin Yee Chan, 2 : 229-252The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? Jay L. Garfield, 2 : 201-228The Crisis of Knowledge in Islam (I): The Case of al-'āmirī, Paul L. Heck, 1 : 106-135The Crow and the Coconut: Accident, Coincidence, and Causation in the Yogavāiṣṭha, Nicholas Buxton, 3 : 392-408De Reu, Wim, Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, 2 : 281-300The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhaga-vadgītā, Christopher Framarin, 4 : 604-617Framarin, Christopher, The Desire You Are Required to Get Rid of: A Functionalist Analysis of Desire in the Bhagavadgītā, 4 : 604-617Garfield, Jay L., The Conventional Status of Reflexive Awareness: What's at Stake in a Tibetan Debate? 2 : 201-228Heck, Paul L., The Crisis of Knowledge in Islam (I): The Case of al-'ā mirī, 1 : 106-135Heidegger's Comportment toward East-West Dialogue, Lin Ma and Jaap van Brakel, 4 : 519-566Ho, Chien-hsing, Saying the Unsayable, 3 : 409-427Kantor, Hans-Rudolf, Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538-597) Tiantai Buddhism, 1 : 16-68Lai, Karyn, Li in the Analects: Training in Moral Competence and the Question of Flexibility, 1 : 69-83Li, Chenyang, The Confucian Ideal of Harmony, 4 : 583-603Li in the Analects: Training in Moral Competence and the Question of Flexibility, Karyn Lai, 1 : 69-83Ma, Lin, and Jaap van Brakel, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566National Communion: Watsuji Tetsurō's Conception of Ethics, Power, and the Japanese Imperial State, Bernard Bernier, 1 : 84-105Ontological Indeterminacy and Its Soteriological Relevance: An Assessment of Mou Zongsan's (1909-1995) Interpretation of Zhiyi's (538- 597) Tiantai Buddhism, Hans-Rudolf Kantor, 1 : 16-68Right Words Seem Wrong: Neglected Paradoxes in Early Chinese Philosophical Texts, Wim De Reu, 2 : 281-300The Role of Time in the Structure of Chinese Logic, Jinmei Yuan, 1 : 136-152Sakya Pandita and the Status of Concepts, Jonathan Stoltz, 4 : 567-582Saying the Unsayable, Chien-hsing Ho, 3 : 409-427Schiltz, Elizabeth, Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, 3 : 451-468Spackman, John, The Tiantai Roots of Dōgen's Philosophy of Language and Thought, 3 : 428-450Stevenson, Frank W., Zhuangzi's Dao as Background Noise, 2 : 301-331Stoltz, Jonathan, Sakya Pandita and the Status of Concepts, 4 : 567-582The Tiantai Roots of Dōgen's Philosophy of Language and Thought, John Spackman, 3 : 428-450 [End Page 709]Two Chariots: The Justification of the Best Life in the Katha Upanishad and Plato's Phaedrus, Elizabeth Schiltz, 3 : 451-468van Brakel, Jaap, and Lin Ma, Heidegger's Comportment toward East-West Dialogue, 4 : 519-566Yuan, Jinmei, The Role of Time in the Structure of Chinese Logic, 1 : 136-152Zhuangzi and the Nature of Metaphor, Kim-chong Chong, 3 : 370-391Zhuangzi's Dao as Background Noise, Frank W. Stevenson, 2 : 301-331Book NotesFenner, David E. W., Introducing Aesthetics (note by James McRae), 3 : 515-516Introducing Aesthetics, by David E. W. Fenner (note by James McRae), 3 : 515-516McRae, James, a book... (shrink)