George Klosko
- Published in print:
- 2005
- Published Online:
- April 2005
- ISBN:
- 9780199256204
- eISBN:
- 9780191602351
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256209.001.0001
- Subject:
- Political Science, Political Theory
Provides a full defence of a theory of political obligation on the basis of the principle of fairness (or fair play). The book responds to the most important objections and extends a theory-based on ...
More
Provides a full defence of a theory of political obligation on the basis of the principle of fairness (or fair play). The book responds to the most important objections and extends a theory-based on fairness into a developed ‘multiple principle’ theory of obligation. The ‘self-image of the state’ in regard to political obligations is explored through examination of judicial decisions in three different democratic countries, while the book also breaks new ground by studying attitudes towards political obligations, through the use of small focus groups.Less
Provides a full defence of a theory of political obligation on the basis of the principle of fairness (or fair play). The book responds to the most important objections and extends a theory-based on fairness into a developed ‘multiple principle’ theory of obligation. The ‘self-image of the state’ in regard to political obligations is explored through examination of judicial decisions in three different democratic countries, while the book also breaks new ground by studying attitudes towards political obligations, through the use of small focus groups.
Alasdair R Maclean
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199545520
- eISBN:
- 9780191721113
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199545520.003.0007
- Subject:
- Law, Medical Law
The law, particularly the judge-made reactive common law, is always open to the influence of ethical discourses challenging the dominant view. In the context of healthcare provision, the power of the ...
More
The law, particularly the judge-made reactive common law, is always open to the influence of ethical discourses challenging the dominant view. In the context of healthcare provision, the power of the medical profession traditionally allowed the dominant approach to remain relatively safe from external challenge. More recently, with the development of the discipline of bioethics and other societal changes, the traditional norms have come under increasing scrutiny and challenge and this continuing ethical critique is at its strongest in the field of healthcare law. This chapter examines the possible impact that this relatively new discourse has had on the legal regulation of consent to medical treatment, focusing particularly on the legal duty to disclose information.Less
The law, particularly the judge-made reactive common law, is always open to the influence of ethical discourses challenging the dominant view. In the context of healthcare provision, the power of the medical profession traditionally allowed the dominant approach to remain relatively safe from external challenge. More recently, with the development of the discipline of bioethics and other societal changes, the traditional norms have come under increasing scrutiny and challenge and this continuing ethical critique is at its strongest in the field of healthcare law. This chapter examines the possible impact that this relatively new discourse has had on the legal regulation of consent to medical treatment, focusing particularly on the legal duty to disclose information.
Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195335842
- eISBN:
- 9780199868926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195335842.003.0012
- Subject:
- Philosophy, General
Since testing for HIV became possible in 1985, the testing of pregnant women has been primarily voluntary, “opt-in,” but there have been repeated predictions that with the development of more ...
More
Since testing for HIV became possible in 1985, the testing of pregnant women has been primarily voluntary, “opt-in,” but there have been repeated predictions that with the development of more reliable testing and more effective therapy, testing should become routine with “opt-out” provisions, or even mandatory. This chapter asks—in the light of new technologies for rapid testing such as OraQuick and the capacity to reduce maternal/fetal transmission rates to less than 2%—whether that time is now. Illustrating the argument with cases from the United States, Kenya, Peru, and an undocumented Mexican worker in the United States, this chapter shows that when testing is accompanied by assured multi-drug continuing treatment for HIV for the mother, the argument for mandatory testing of pregnant women is strong, but that it is problematic where testing is accompanied by adverse events such as spousal abuse, or by inadequate intrapartum or followup treatment—the latter a circumstance common where aggressive AIDS testing programs are being introduced in many areas of the world. The difference is not a “double standard,” but reflects the presence of conflicts between the health interests of the mother and the fetus—conflicts that would be abrogated by the assurance of therapy. In light of these conflicts where they still occur, as in much of the world, careful processes of informed consent are appropriate, rather than mandatory or “opt-out” testing.Less
Since testing for HIV became possible in 1985, the testing of pregnant women has been primarily voluntary, “opt-in,” but there have been repeated predictions that with the development of more reliable testing and more effective therapy, testing should become routine with “opt-out” provisions, or even mandatory. This chapter asks—in the light of new technologies for rapid testing such as OraQuick and the capacity to reduce maternal/fetal transmission rates to less than 2%—whether that time is now. Illustrating the argument with cases from the United States, Kenya, Peru, and an undocumented Mexican worker in the United States, this chapter shows that when testing is accompanied by assured multi-drug continuing treatment for HIV for the mother, the argument for mandatory testing of pregnant women is strong, but that it is problematic where testing is accompanied by adverse events such as spousal abuse, or by inadequate intrapartum or followup treatment—the latter a circumstance common where aggressive AIDS testing programs are being introduced in many areas of the world. The difference is not a “double standard,” but reflects the presence of conflicts between the health interests of the mother and the fetus—conflicts that would be abrogated by the assurance of therapy. In light of these conflicts where they still occur, as in much of the world, careful processes of informed consent are appropriate, rather than mandatory or “opt-out” testing.
Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195335842
- eISBN:
- 9780199868926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195335842.003.0004
- Subject:
- Philosophy, General
This chapter first documents the virtually complete absence of infectious disease examples and concerns at the time bioethics emerged as a field. It then argues that this oversight was not benign by ...
More
This chapter first documents the virtually complete absence of infectious disease examples and concerns at the time bioethics emerged as a field. It then argues that this oversight was not benign by considering two central issues in the field—informed consent and distributive justice—and showing how they might have been framed differently had infectiousness been at the forefront of concern. The solution to this omission might be to apply standard approaches in liberal bioethics, such as autonomy and the harm principle, to infectious examples. It is argued that this is insufficient, however. Taking infectious disease into account requires understanding the patient as victim and as vector. Infectiousness reminds us that as autonomous agents we are both embodied and vulnerable in our relationships with others. The chapter concludes by applying this re-understanding of agency to the examples of informed consent and distributive justice in health care.Less
This chapter first documents the virtually complete absence of infectious disease examples and concerns at the time bioethics emerged as a field. It then argues that this oversight was not benign by considering two central issues in the field—informed consent and distributive justice—and showing how they might have been framed differently had infectiousness been at the forefront of concern. The solution to this omission might be to apply standard approaches in liberal bioethics, such as autonomy and the harm principle, to infectious examples. It is argued that this is insufficient, however. Taking infectious disease into account requires understanding the patient as victim and as vector. Infectiousness reminds us that as autonomous agents we are both embodied and vulnerable in our relationships with others. The chapter concludes by applying this re-understanding of agency to the examples of informed consent and distributive justice in health care.
Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195335842
- eISBN:
- 9780199868926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195335842.003.0008
- Subject:
- Philosophy, General
This chapter begins to put the PVV view to work in the analysis of both traditional and newer ethical issues in bioethics. Here, the chapter re-examines staple issues of bioethics such as ...
More
This chapter begins to put the PVV view to work in the analysis of both traditional and newer ethical issues in bioethics. Here, the chapter re-examines staple issues of bioethics such as truth-telling, informed consent, privacy and confidentiality, and end-of-life decision making in light of the importance of taking both victimhood and vectorhood into account. To take one example, refusals of patients to be told the truth that might be respected on traditional autonomy grounds look quite different if the truth at issue includes possibilities of contagion. Informed consent must include a discussion of the risks the patient potentially poses to others—as well as the risks posed by others. Using the PVV view, this chapter also takes up more novel issues about duties of physicians, such as the duty to warn, the duty to treat, and the duty to reduce levels of mistakes. Physicians who are potentially infectious themselves, for example, have a duty to consider their own roles as vectors, not solely the interests of the patient.Less
This chapter begins to put the PVV view to work in the analysis of both traditional and newer ethical issues in bioethics. Here, the chapter re-examines staple issues of bioethics such as truth-telling, informed consent, privacy and confidentiality, and end-of-life decision making in light of the importance of taking both victimhood and vectorhood into account. To take one example, refusals of patients to be told the truth that might be respected on traditional autonomy grounds look quite different if the truth at issue includes possibilities of contagion. Informed consent must include a discussion of the risks the patient potentially poses to others—as well as the risks posed by others. Using the PVV view, this chapter also takes up more novel issues about duties of physicians, such as the duty to warn, the duty to treat, and the duty to reduce levels of mistakes. Physicians who are potentially infectious themselves, for example, have a duty to consider their own roles as vectors, not solely the interests of the patient.
Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780195335842
- eISBN:
- 9780199868926
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195335842.003.0010
- Subject:
- Philosophy, General
Research ethics has focused on protecting the autonomy of the individual research subject, insisting on informed consent and a reasonable risk/benefit ratio for a study to be ethical. At the same ...
More
Research ethics has focused on protecting the autonomy of the individual research subject, insisting on informed consent and a reasonable risk/benefit ratio for a study to be ethical. At the same time, it has largely ignored the situation of the “indirect participant” in research: someone who might be adversely affected by another's participation in a research study. There are many historical examples of this failure: self-experimentation with infectious disease, the Tuskegee syphilis study, and the Willowbrook study of infectious hepatitis, among others. And there are many more contemporary examples, too, such as tests of the oral polio vaccine or of short-course anti-retroviral therapy for HIV+ pregnant women. This chapter argues that risks to indirect participants must be considered in assessing the risk/benefit ratio of study designs. Where there are identifiable indirect participants and risks to them are significant, their informed consent should also be required for participation of the direct subject in research. Where indirect participants cannot easily be identified, but risks may be substantial, the chapter suggest employing models drawn from community consent to conduct of research.Less
Research ethics has focused on protecting the autonomy of the individual research subject, insisting on informed consent and a reasonable risk/benefit ratio for a study to be ethical. At the same time, it has largely ignored the situation of the “indirect participant” in research: someone who might be adversely affected by another's participation in a research study. There are many historical examples of this failure: self-experimentation with infectious disease, the Tuskegee syphilis study, and the Willowbrook study of infectious hepatitis, among others. And there are many more contemporary examples, too, such as tests of the oral polio vaccine or of short-course anti-retroviral therapy for HIV+ pregnant women. This chapter argues that risks to indirect participants must be considered in assessing the risk/benefit ratio of study designs. Where there are identifiable indirect participants and risks to them are significant, their informed consent should also be required for participation of the direct subject in research. Where indirect participants cannot easily be identified, but risks may be substantial, the chapter suggest employing models drawn from community consent to conduct of research.
Matthew Clayton
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199268948
- eISBN:
- 9780191603693
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199268940.003.0005
- Subject:
- Political Science, Political Theory
This chapter offers an account of political or citizenship education. It argues that a central feature of citizenship education in a liberal society is the development of a sense of justice, and the ...
More
This chapter offers an account of political or citizenship education. It argues that a central feature of citizenship education in a liberal society is the development of a sense of justice, and the virtues of civility and reciprocity that are constitutive of that sense. The discussion begins with the analysis of Brighouse’s consent-based objections to the shaping of political motivations. An alternative political motivation model is defended, which draws on Rawls’s account of the natural duty of justice. The aims of political education, with respect to the skills, attitudes and values of liberal citizens, are briefly discussed. Education for justice rejects the view that political education should seek to cultivate a sense of nationality. The aims of political education in the context of questions about global justice are considered. Certain educational issues that arise in the non-ideal world from the point of view of developing a sense of justice are addressed.Less
This chapter offers an account of political or citizenship education. It argues that a central feature of citizenship education in a liberal society is the development of a sense of justice, and the virtues of civility and reciprocity that are constitutive of that sense. The discussion begins with the analysis of Brighouse’s consent-based objections to the shaping of political motivations. An alternative political motivation model is defended, which draws on Rawls’s account of the natural duty of justice. The aims of political education, with respect to the skills, attitudes and values of liberal citizens, are briefly discussed. Education for justice rejects the view that political education should seek to cultivate a sense of nationality. The aims of political education in the context of questions about global justice are considered. Certain educational issues that arise in the non-ideal world from the point of view of developing a sense of justice are addressed.
Monique Deveaux
- Published in print:
- 2006
- Published Online:
- January 2007
- ISBN:
- 9780199289790
- eISBN:
- 9780191711022
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199289790.003.0003
- Subject:
- Political Science, Democratization
This chapter considers how human rights perspectives understand the gender/culture tension and the kinds of normative and practical solutions that they offer. In addition to discussing writing by ...
More
This chapter considers how human rights perspectives understand the gender/culture tension and the kinds of normative and practical solutions that they offer. In addition to discussing writing by feminist human rights scholars, it considers the work of philosopher Martha Nussbaum, who focuses on women’s capabilities for well-being, as well as the work of philosopher Onora O’Neill, who argues that we need to attend to the circumstances and capacities that women need if they are to genuinely give their consent to cultural practices and arrangements.Less
This chapter considers how human rights perspectives understand the gender/culture tension and the kinds of normative and practical solutions that they offer. In addition to discussing writing by feminist human rights scholars, it considers the work of philosopher Martha Nussbaum, who focuses on women’s capabilities for well-being, as well as the work of philosopher Onora O’Neill, who argues that we need to attend to the circumstances and capacities that women need if they are to genuinely give their consent to cultural practices and arrangements.
Alan Wertheimer
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199743513
- eISBN:
- 9780199827145
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199743513.001.0001
- Subject:
- Philosophy, Political Philosophy
Clinical research requires that some people be used and possibly harmed for the benefit of others. What justifies such use of people? This book provides an in-depth philosophical analysis of several ...
More
Clinical research requires that some people be used and possibly harmed for the benefit of others. What justifies such use of people? This book provides an in-depth philosophical analysis of several crucial issues in the ethics of clinical research. Much writing on the ethics of research with human subjects assumes that participation in research is a distinctive activity that requires distinctive moral principles. In most contexts, we allow people to choose the activities in which they engage. By contrast, people are permitted to participate in research only after IRBs determine that it is appropriate for them to do so. Although we assume that consent to participate in research must be preceded by an elaborate disclosure of information, we make no such assumption in many other areas of life. Although it is thought to be morally problematic to provide financial inducements to prospective subjects, we make no such assumptions when we hire people as loggers, fishermen, and fire fighters. Although we readily accept the “off-shoring” of manufacturing, many regard the off-shoring of medical research with great skepticism. This book seeks to widen the lens through which we consider such issues. When we do so, we will find that many standard principles of research ethics are difficult to defend.Less
Clinical research requires that some people be used and possibly harmed for the benefit of others. What justifies such use of people? This book provides an in-depth philosophical analysis of several crucial issues in the ethics of clinical research. Much writing on the ethics of research with human subjects assumes that participation in research is a distinctive activity that requires distinctive moral principles. In most contexts, we allow people to choose the activities in which they engage. By contrast, people are permitted to participate in research only after IRBs determine that it is appropriate for them to do so. Although we assume that consent to participate in research must be preceded by an elaborate disclosure of information, we make no such assumption in many other areas of life. Although it is thought to be morally problematic to provide financial inducements to prospective subjects, we make no such assumptions when we hire people as loggers, fishermen, and fire fighters. Although we readily accept the “off-shoring” of manufacturing, many regard the off-shoring of medical research with great skepticism. This book seeks to widen the lens through which we consider such issues. When we do so, we will find that many standard principles of research ethics are difficult to defend.
George Klosko
- Published in print:
- 2005
- Published Online:
- April 2005
- ISBN:
- 9780199256204
- eISBN:
- 9780191602351
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256209.003.0006
- Subject:
- Political Science, Political Theory
With theories of political obligation based on consent now generally discredited because most people have not actually consented, certain theorists attempt to rescue consent by proposing mechanisms ...
More
With theories of political obligation based on consent now generally discredited because most people have not actually consented, certain theorists attempt to rescue consent by proposing mechanisms through which individuals could consent to government. Various mechanisms are examined, including ‘consent-or-leave’ and Michael Walzer's proposal that citizens who refuse to consent be allowed a lesser status, analogous to that of ‘resident aliens at home’. All these mechanisms confront insuperable difficulties concerning essential public goods. Because resident aliens at home will continue to receive public goods, the alternatives are that they be allowed to receive them cost-free or that they incur obligations, even though they explicitly refused to consent.Less
With theories of political obligation based on consent now generally discredited because most people have not actually consented, certain theorists attempt to rescue consent by proposing mechanisms through which individuals could consent to government. Various mechanisms are examined, including ‘consent-or-leave’ and Michael Walzer's proposal that citizens who refuse to consent be allowed a lesser status, analogous to that of ‘resident aliens at home’. All these mechanisms confront insuperable difficulties concerning essential public goods. Because resident aliens at home will continue to receive public goods, the alternatives are that they be allowed to receive them cost-free or that they incur obligations, even though they explicitly refused to consent.
Bernard Gert, Charles M. Culver, and K. Danner Clouser
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780195159066
- eISBN:
- 9780199786466
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0195159063.003.0009
- Subject:
- Philosophy, Moral Philosophy
This chapter discusses what information doctors should be morally required to give to patients, and whether it should include the new kinds of information that doctors must know. Showing that the ...
More
This chapter discusses what information doctors should be morally required to give to patients, and whether it should include the new kinds of information that doctors must know. Showing that the task a patient must be competent to perform is that of making a rational decision clarifies the relationship between rationality and competence, and explains the inadequacy of all previous accounts of competence. The chapter also explains why what counts as coercion with regard to research volunteers is not the same as what counts as coercion with regard to patients.Less
This chapter discusses what information doctors should be morally required to give to patients, and whether it should include the new kinds of information that doctors must know. Showing that the task a patient must be competent to perform is that of making a rational decision clarifies the relationship between rationality and competence, and explains the inadequacy of all previous accounts of competence. The chapter also explains why what counts as coercion with regard to research volunteers is not the same as what counts as coercion with regard to patients.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.001.0001
- Subject:
- Law, Company and Commercial Law
Boilerplate—the fine-print terms and conditions that we become subject to when we click “I agree” online, rent an apartment, or enter an employment contract, for example—pervades all aspects of our ...
More
Boilerplate—the fine-print terms and conditions that we become subject to when we click “I agree” online, rent an apartment, or enter an employment contract, for example—pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. This book examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and it finds these justifications wanting. It argues that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, the book offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. It goes on to offer possibilities for new methods of boilerplate evaluation and control, and concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.Less
Boilerplate—the fine-print terms and conditions that we become subject to when we click “I agree” online, rent an apartment, or enter an employment contract, for example—pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order. This book examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and it finds these justifications wanting. It argues that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, the book offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. It goes on to offer possibilities for new methods of boilerplate evaluation and control, and concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.
Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0007
- Subject:
- Political Science, Political Theory
Completes the second part of the book, and relies on the conception of political legitimacy delineated in Ch. 5 to advance a justice‐based, rather than a consent‐based, account of system legitimacy: ...
More
Completes the second part of the book, and relies on the conception of political legitimacy delineated in Ch. 5 to advance a justice‐based, rather than a consent‐based, account of system legitimacy: a set of criteria that the international legal system would have to meet in order to be legitimate. Building on groundwork already laid in Chs 1 and 5, it is shown why, contrary to the dominant view among international lawyers, the consent of states cannot confer legitimacy on the international legal system. In addition, it is argued that it is a mistake to assume that political equality among states is a necessary condition for system legitimacy, and that the international legal system, like any system for the exercise of political power, ought to be democratic. It is also shown that the idea of democratizing the international legal system is an ambiguous one and should not be equated with increasing state majoritarianism in the workings of the system; the charge that the international legal system has a “democratic deficit” is valid, but it is a mistake to assume that the remedy is to make the system conform more closely to the ideal of democracy as state majoritarianism. The eight sections of the chapter are: I. The Question of System Legitimacy; II. The Case for Having an International Legal System; III. A Justice‐Based Conception of System Legitimacy; IV. The Consent Theory of System Legitimacy; I. Moral Minimalism and the Consent Theory of System Legitimacy. VI. The Instrumental Argument for State Consent as a Necessary Condition for System Legitimacy; VII. Is Democracy a Necessary Condition of System Legitimacy?; and VIII. The Pursuit of Justice in an Imperfect System.Less
Completes the second part of the book, and relies on the conception of political legitimacy delineated in Ch. 5 to advance a justice‐based, rather than a consent‐based, account of system legitimacy: a set of criteria that the international legal system would have to meet in order to be legitimate. Building on groundwork already laid in Chs 1 and 5, it is shown why, contrary to the dominant view among international lawyers, the consent of states cannot confer legitimacy on the international legal system. In addition, it is argued that it is a mistake to assume that political equality among states is a necessary condition for system legitimacy, and that the international legal system, like any system for the exercise of political power, ought to be democratic. It is also shown that the idea of democratizing the international legal system is an ambiguous one and should not be equated with increasing state majoritarianism in the workings of the system; the charge that the international legal system has a “democratic deficit” is valid, but it is a mistake to assume that the remedy is to make the system conform more closely to the ideal of democracy as state majoritarianism. The eight sections of the chapter are: I. The Question of System Legitimacy; II. The Case for Having an International Legal System; III. A Justice‐Based Conception of System Legitimacy; IV. The Consent Theory of System Legitimacy; I. Moral Minimalism and the Consent Theory of System Legitimacy. VI. The Instrumental Argument for State Consent as a Necessary Condition for System Legitimacy; VII. Is Democracy a Necessary Condition of System Legitimacy?; and VIII. The Pursuit of Justice in an Imperfect System.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0002
- Subject:
- Political Science, International Relations and Politics
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This ...
More
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.Less
This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.
Jason Ralph
- Published in print:
- 2007
- Published Online:
- September 2007
- ISBN:
- 9780199214310
- eISBN:
- 9780191706615
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199214310.003.0005
- Subject:
- Political Science, International Relations and Politics
This chapter explains why the Clinton administration chose to sign, and the Bush administration chose to ‘unsign’ the Rome Treaty. Both argued that the Treaty violated the principle of sovereign ...
More
This chapter explains why the Clinton administration chose to sign, and the Bush administration chose to ‘unsign’ the Rome Treaty. Both argued that the Treaty violated the principle of sovereign consent and they both appealed to Vienna Convention on the Law of Treaties to support their argument. The chapter then asks why the US finds this argument so compelling when other democratic states are not threatened by the Court. The chapter offers an answer that goes beyond arguments that focus on America's national interests and its international responsibilities. Instead, it focuses on the cultural role that democratic consent plays in constituting America as a separate nation. The policy of opposing the ICC while offering alternative approaches to international criminal justice is, therefore, a representational practice designed to instantiate a particular image of America as well as a political move to protect the national interest.Less
This chapter explains why the Clinton administration chose to sign, and the Bush administration chose to ‘unsign’ the Rome Treaty. Both argued that the Treaty violated the principle of sovereign consent and they both appealed to Vienna Convention on the Law of Treaties to support their argument. The chapter then asks why the US finds this argument so compelling when other democratic states are not threatened by the Court. The chapter offers an answer that goes beyond arguments that focus on America's national interests and its international responsibilities. Instead, it focuses on the cultural role that democratic consent plays in constituting America as a separate nation. The policy of opposing the ICC while offering alternative approaches to international criminal justice is, therefore, a representational practice designed to instantiate a particular image of America as well as a political move to protect the national interest.
Jennifer M. Welsh
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780199267217
- eISBN:
- 9780191601118
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199267219.003.0001
- Subject:
- Political Science, International Relations and Politics
Three main themes emerge from this edited collection. First, there has been an increased incidence of intervention for humanitarian purposes since the end of the Cold War. In these cases, the alleged ...
More
Three main themes emerge from this edited collection. First, there has been an increased incidence of intervention for humanitarian purposes since the end of the Cold War. In these cases, the alleged conflict between sovereignty and human rights has been addressed in one of two ways: through an evolution in the notion of sovereignty, from ‘sovereignty as authority’ to ‘sovereignty as responsibility’; and through an expanded definition of what constitutes a threat to international peace and security under Chapter VII of the UN Charter. Second, despite this new climate of permissiveness, humanitarian intervention remains a controversial norm in international relations – largely because of continued opposition from certain members of international society, and concerns about its potentially negative consequences. Third, while the post Cold War period has seen some successful cases of intervention to address humanitarian catastrophes, the current capability of international organizations to undertake humanitarian interventions remains limited. Indeed, as the book demonstrates, the issue of humanitarian intervention has the potential to divide international institutions such as the UN and damage their credibility.Less
Three main themes emerge from this edited collection. First, there has been an increased incidence of intervention for humanitarian purposes since the end of the Cold War. In these cases, the alleged conflict between sovereignty and human rights has been addressed in one of two ways: through an evolution in the notion of sovereignty, from ‘sovereignty as authority’ to ‘sovereignty as responsibility’; and through an expanded definition of what constitutes a threat to international peace and security under Chapter VII of the UN Charter. Second, despite this new climate of permissiveness, humanitarian intervention remains a controversial norm in international relations – largely because of continued opposition from certain members of international society, and concerns about its potentially negative consequences. Third, while the post Cold War period has seen some successful cases of intervention to address humanitarian catastrophes, the current capability of international organizations to undertake humanitarian interventions remains limited. Indeed, as the book demonstrates, the issue of humanitarian intervention has the potential to divide international institutions such as the UN and damage their credibility.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0002
- Subject:
- Law, Company and Commercial Law
This chapter examines the normative degradation caused by the apparent lack of consent to boilerplate. It first considers the varieties of nonconsent to which consent is contrasted, including ...
More
This chapter examines the normative degradation caused by the apparent lack of consent to boilerplate. It first considers the varieties of nonconsent to which consent is contrasted, including coercion and its related conceptions of force and duress; fraud, with its allied notions of misrepresentation and deception; and sheer ignorance. It then discusses problematic consent, focusing on situations involving “information asymmetry” and heuristic biases. It also explores strategies of assimilating World B to consent, with particular emphasis on the devolution of voluntary agreement. The chapter shows that consent is problematic even when recipients click a box that says “I agree,” because it remains unclear what they could actually be agreeing to.Less
This chapter examines the normative degradation caused by the apparent lack of consent to boilerplate. It first considers the varieties of nonconsent to which consent is contrasted, including coercion and its related conceptions of force and duress; fraud, with its allied notions of misrepresentation and deception; and sheer ignorance. It then discusses problematic consent, focusing on situations involving “information asymmetry” and heuristic biases. It also explores strategies of assimilating World B to consent, with particular emphasis on the devolution of voluntary agreement. The chapter shows that consent is problematic even when recipients click a box that says “I agree,” because it remains unclear what they could actually be agreeing to.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0009
- Subject:
- Law, Company and Commercial Law
This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, ...
More
This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.Less
This chapter proposes an analytical framework for improving the evaluation of boilerplate. It begins with a discussion of questions for evaluating boilerplate rights deletion schemes; for example, whether all of the rights granted and/or maintained by the state are appropriately considered default rules. It then describes three elements of analysis that can help illuminate how boilerplate waivers should be evaluated: the nature of the right in question and whether that right is alienable; the quality of consent by a recipient; and the extent of social dissemination of the rights deletion. It also examines the effect of nonconsent or market-inalienability on any purported contract, as well as the kinds of rights that are or should be subject to market-inalienability or partial market-inalienability in the presence of problematic consent. Finally, it explores political rights and interests, along with basic human rights and interests.
George Klosko
- Published in print:
- 2005
- Published Online:
- April 2005
- ISBN:
- 9780199256204
- eISBN:
- 9780191602351
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256209.003.0007
- Subject:
- Political Science, Political Theory
This and the following chapters explore the ‘self-image of the state’ in regard to political obligations through analysis of judicial decisions. Examining the reasons that states themselves provide ...
More
This and the following chapters explore the ‘self-image of the state’ in regard to political obligations through analysis of judicial decisions. Examining the reasons that states themselves provide to justify political obligations provides an empirical test of normative theories. Although judicial decisions have no claim to moral truth, the fact that justices regularly argue from certain principles rather than others adds to the plausibility of a theory based on the former and increases the burden of justification for proponents of other principles. Supreme Court justices usually defend their opinions on the basis of statutory or constitutional interpretation and seldom appeal directly to moral principles. However, on occasion they do invoke moral principles to support their opinions, especially in difficult cases. Justices of the US Supreme Court consistently ground obligations on protection that individuals receive from society. The most likely basis of these ‘reciprocal obligations’ is a principle of fairness, as expressed most notably in Arver v. U.S., the most important of the 'Selective Draft Law Cases'.Less
This and the following chapters explore the ‘self-image of the state’ in regard to political obligations through analysis of judicial decisions. Examining the reasons that states themselves provide to justify political obligations provides an empirical test of normative theories. Although judicial decisions have no claim to moral truth, the fact that justices regularly argue from certain principles rather than others adds to the plausibility of a theory based on the former and increases the burden of justification for proponents of other principles. Supreme Court justices usually defend their opinions on the basis of statutory or constitutional interpretation and seldom appeal directly to moral principles. However, on occasion they do invoke moral principles to support their opinions, especially in difficult cases. Justices of the US Supreme Court consistently ground obligations on protection that individuals receive from society. The most likely basis of these ‘reciprocal obligations’ is a principle of fairness, as expressed most notably in Arver v. U.S., the most important of the 'Selective Draft Law Cases'.
Lainie Friedman Ross
- Published in print:
- 2006
- Published Online:
- May 2006
- ISBN:
- 9780199273287
- eISBN:
- 9780191603655
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199273286.003.0006
- Subject:
- Philosophy, Moral Philosophy
This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug ...
More
This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug Administration in April 2001 with the exception of parental waivers under Code of Federal Regulations section 46.408. The moral bases for these requirements are examined: whether the current policies are consistent with these moral foundations, and if not, how the policies should be modified.Less
This chapter presents an overview of the informed consent requirements and waivers in pediatric research under current federal regulations. These consent policies were adopted by the Food and Drug Administration in April 2001 with the exception of parental waivers under Code of Federal Regulations section 46.408. The moral bases for these requirements are examined: whether the current policies are consistent with these moral foundations, and if not, how the policies should be modified.