Thus, Meyers provides a valuable account, not only of current medical attitudes, but also of relevant case and statute law as it stands at present.

Mother and Fetus: Rights in Conflict A. INTRODUCTION After fertilization of the female egg (ovum) with male sperm the resulting zygote may implant ...

Human rights law has been called upon to help with the problem of persistently high greenhouse gas emissions. An obligation on states and other legal entities to lower their emissions (mitigation) is said to be deducible from that body of law. I refute this thesis. First, I consider two practical difficulties—causality and non-triviality—that face a plaintiff who, with emission mitigation as the objective, attempts to prove a human rights violation using the regular pattern of proof for a (...) violation. Proponents of the “human rights approach” to mitigation have held that proof of an emission “contribution” by the defendant together with proof of an “impact” by climate change on the plaintiff’s human rights are sufficient to discharge the evidentiary burden for the proof of causation. The rest of the causation chain is simply presumed. Thus, the original proof pattern for a human rights violation is abandoned. The proponents’ answer to the triviality difficulty has been to aggregate emitters into very large entities and sue _them_. However, aggregation can be shown to lead to a _reductio ad absurdum_. In my argument’s second part, I identify a more fundamental difficulty with the human rights approach to mitigation: The defendant’s emissions do not amount to a norm violation. Everyone contributes emissions without legislative or other prohibition. Treaty law on climate change itself recognizes emitting behaviour as lawful and permits the continuation of state emissions through to at least 2050. A rise in global warming from preindustrial levels to 1.5° Celsius with room for an even greater rise to close to 2° Celsius has been _budgeted for_ by the Paris Agreement on Climate Change. The setting up of a budget affirms the normalized status of within-budget emissions. This universal license to emit denies the human rights approach to mitigation the very conditions of application of human rights law. (shrink)

How should the law deal with the challenges of advancing biotechnology? This book is a philosophical and legal re-analysis.

This is the first book to unpack the legal and ethical issues surrounding unauthorised intimate examinations during labour. The book uses feminist, socio-legal and philosophical tools to explore the issues of power, vulnerability and autonomy. The collection challenges the perception that the law adequately addresses different manifestations of unauthorised medical touch through the lens of women's experiences of unauthorised vaginal examinations during labour. The book unearths several broader themes that are of huge significance to lawyers and healthcare professionals such as (...) the legal status of women and their bodies. The book raises questions about women's experiences during childbirth in hospital settings. It explores the status of women's bodies during labour and childbirth where too easily they become objectified, and it raises important issues around consent. The book highlights links to the law on sexual offences and women's loss of power under the medical gaze. The book includes contributions from leading feminist philosophers, medical professionals, and academics in medicine and law, and offers pioneering analysis relevant to lawyers and healthcare professionals with an interest in medical law and ethics; feminist theory; criminal law; tort law; and human rights law. (shrink)

This paper surveys the conceptions of law and of legislation to be found in the philosophy of Julian the Emperor. A hierarchy of levels of law is described, going from transcendent divine orders and paradigmatic laws down to the laws of nature, laws innate in human souls and regional laws. Julian’s ideal legislator is discussed, as inspired by transcendent, paradigmatic laws and as subordinate to law and its protector. An example of Julian’s legislation is discussed. Attention is paid to (...) Julian’s use of Plato’s Republic, Statesman, and Laws. (shrink)

Healthcare Ethics, Law and Professionalism: Essays on the Works of Alastair V Campbell features 15 original essays on bioethics, and healthcare ethics specifically. The volume is in honour of Professor Alastair V Campbell, who was the founding editor of the internationally-renowned Journal of Medical Ethics, and the founding director of three internationally leading centres in bioethics, in Otago, New Zealand, Bristol, UK, and Singapore. Campbell was trained in theology and philosophy and throughout his career worked with colleagues from various disciplines, (...) including law and various branches of healthcare. The diversity of topics and depth of contributors' insights reflect the breadth and impact of Campbell's philosophical work and policy contributions to healthcare ethics. Throughout his long academic career, Campbell's emphasis on healthcare ethics being practice-oriented, yet driven by critical reflection, has shaped the field in vital ways. The chapters are authored by leading scholars in healthcare ethics and law. Directly engaging with Campbell's work and influence, the essays discuss essential questions in healthcare ethics relating to its methodology and teaching, its intersection with law and policy, medical professionalism, religion, and its translation in different cultural settings. Chapters also grapple with specific enduring topics, such as the doctor-patient relationship, justice in health and biomedical research, and treatment of the human body and the dead. (shrink)

Scenes of violence and incisions into the flesh informeethe demand for law. The scene of little girls being held down in practices of female circumcision has been a defining and definitive image that demands the attention of human rights, and the intervention of law. But the investment in protecting women and little girls from such a cut is not all that it seems.eeLaw's Cuteeon theeeBody of Human Rights: Female Circumcision, TortureeeandeeSacred Flesheeconsiders how such imageseecome to inform laweeand the (...) investment of advocates of law in an imagination of this scene. Drawing on psychoanalytic andeepostcolonialeetheory, and accompanying ideas in political theology, Juliet Rogers examines the language, imagery and excitement that accompanies recenteeinitiatives to legislate against what is called 'female genital mutilation'. The author compliments this examination witheea consideration of the scene of torture exposed in images from Abu Ghraib and Guantanamo Bay.eeRogers argues that the modes ofeefascination and excitement that accompanyeesceneseeof torture and female circumcisioneebetray the fantasy of aeepolitical conditioneeagainst which the subject of liberal law is imagined; this is subjectivityeein aeestate of non-mutilation, non-prohibition or, in a psychoanalytic idiom, non-castration.eeTo support the fantasy of this subject,eethe mutilated subject, the authors suggests, is rendered as flesh cut from the democratic nation state, deserving of only selective human rights, or none at all. (shrink)

Summarising the interrelationship between law and medical ethics, I would say that in cases which do not touch the patient's body or integrity, such as professional secrecy, statutory law may take precedence over rules of medical ethics. But in cases where the human subject becomes a victim because of domestic statutory laws which are in contradiction with medical ethics, the medical practitioners should insist on adhering to their professional standards in such a way that the legislators will have (...) to adapt their legislations to the laws of humanity and public conscience. Legislators, as well as medical practitioners, should not forget that the term 'being' is preceded and qualified by 'human'. (shrink)

Determining which moral principles should guide political action is a vexing question in political theory. This is especially true when faced with the "toleration paradox": believing that something is morally wrong but also believing that it is wrong to suppress it. In this book, Alex Tuckness argues that John Locke's potential contribution to this debate--what Tuckness terms the "legislative point of view"--has long been obscured by overemphasis on his doctrine of consent. Building on a line of reasoning Locke made explicit (...) in his later writings on religious toleration, Tuckness explores the idea that we should act politically only on those moral principles that a reasonable legislator would endorse; someone, that is, who would avoid enacting measures that could be self-defeating when applied by fallible human beings.Tuckness argues that the legislative point of view has implications that go far beyond the question of religious toleration. Locke suggests an approach to political justification that is a provocative alternative to the utilitarian, contractualist, and perfectionist approaches dominating contemporary liberalism. The legislative point of view is relevant to our thinking about many types of disputed principles, Tuckness writes. He examines claims of moral wrong, invocations of the public good, and contested political roles with emphasis on the roles of legislators and judges. This book is must reading not only for students and scholars of Locke but all those interested in liberalism, toleration, and constitutional theory. (shrink)

Medical ethics and medical practice -- Public health and the state-patient relationship -- Health rights and obligations in the European Union -- Consent to treatment -- Liability for medical injury -- Medical confidentiality -- Genetic information and the law -- The management of infertility and childlessness -- The control of fertility -- Civil and criminal liability in reproductive medicine -- Health resources and dilemmas in treatment -- Treatment of the aged -- Mental health and human rights -- The (...) class='Hi'>body as property -- Medical futility -- The diagnosis of death -- The donation of organs and transplantation -- Euthanasia and assistance in dying -- Biomedical human research and experimentation -- Research on children, fetuses and embryos. (shrink)

Cosmopolitans argue that the account of human rights and distributive justice in John Rawls's The Law of Peoples is incompatible with his argument for liberal justice. Rawls should extend his account of liberal basic liberties and the guarantees of distributive justice to apply to the world at large. This essay defends Rawls's grounding of political justice in social cooperation. The Law of Peoples is drawn up to provide principles of foreign policy for liberal peoples. Human rights are among (...) the necessary conditions for social cooperation, and so long as a decent people respect human rights, a common good, and the Law of Peoples, it is not the role of liberal peoples to impose upon well-ordered decent peoples liberal liberties they cannot endorse. Moreover, the difference principle is not an allocative or alleviatory principle, but applies to design property and other basic social institutions necessary to economic production, exchange and consumption. It presupposes political cooperation—a legislative body to actively apply it, and a legal system to apply it to. There is no feasible global state or global legal system that could serve these roles. Finally, the difference principle embodies a conception of democratic reciprocity that is only appropriate to cooperation among free and equal citizens who are socially productive and politically autonomous. a Footnotesa I am grateful to K. C. Tan for many helpful discussions and criticisms of this essay. I am also grateful to the other contributors to this volume for their comments, and to Ellen Paul for her many helpful suggestions in preparing the final version of this essay. (shrink)

Introduction: human rights in healthcare -- A right to treatment? the allocation of resouces in the National Health Service -- Ensuring quality healthcare: an issue of rights or duties? -- Autonomy and consent in medical treatment -- Treating incompetent patients: beneficence, welfare and rights -- Medical confidentiality and the right to privacy -- Property right in the body -- Medically assisted conception and a right to reproduce? -- Termination of pregnancy: a conflict of rights -- Pregnancy and freedom (...) of choice -- The right to life at the end of life -- The law and ethics of assisted dying: is there a right to die? (shrink)

Law, often neglected in treatments of the Republic, is essential to the philosopher-kings’ rule. Only law accomplishes the partial divinization of citizens at which philosophical politics aims. Socrates’ interrogation of Thrasymachus and Glaucon reveals law to be a command whereby citizens participate in philosophical knowledge and limit the pleonexia congenital to humanity. Law does so primarily by instilling in souls a true opinion resistant to pleonectic passion, producing a state of political virtue. This primary work is supported by the musical (...) and poetical education, itself shaped by law for the sake of law. Law persuades and compels the soul by appealing to both reason and spiritedness, enabling them to overcome the appetites. The soul’s consequent acceptance of truth and resistance to the passions indeed makes it resemble divinity. In so transforming the citizens through the law, the philosopher-king also unifies the city and makes it happy under his rule. (shrink)

Legislation that authorises controversial organ procurement strategies but ignores respect for autonomy is flawed in principle and predictably unworkable in practiceThe UK Human Tissue Act 2004,1 designed to regulate all activity involving human tissue, organs, or bodies, was introduced in the House of Commons in December 2003, received Royal Assent on 15 November 2004,2 and has been partially implemented by Commencement Orders from April 2005. The new act, which repeals and replaces the Human Tissue Act 1961, the (...) Anatomy Act 1984, and the Human Organ Transplants Act 1989, has its origins in events of serious public concern, namely the retained organs scandals at Bristol Royal Infirmary3 and the Royal Liverpool Childrens’ Hospital.4 The act is correspondingly dominated by regulation of postmortem examinations and retention of human tissue, with consistent emphasis on the need for fully informed consent. Compliance with these requirements is now mandatory with the threat of up to three years’ imprisonment and/or fines for any deviation.The impact of the original proposals within the bill on research and the clinical practice of pathology have been carefully considered and documented,5 with subsequent amendments to ameliorate professional concerns.6 The act, however, also carries significant implications for medical practice in areas where donor recruitment for transplantation can take place, and representations on these aspects during readings of the bill7 have produced neither clarification, justification, nor amendment within the final legislation.Section 43 will make it lawful for hospital authorities “to take steps for the purpose of preserving the part for use for transplantation and to retain the body for that purpose”. The original explanatory notes for the bill8 while it proceeded through parliament implied that such action, prior to consent to transplantation being sought, was then lawful, clause 44 as section 43 …. (shrink)

Society has historically not taken a benign view of genetic disease. The laws permitting sterilization of the mentally re tarded~ and those proscribing consanguineous marriages are but two examples. Indeed as far back as the 5th-10th centuries, B.C.E., consanguineous unions were outlawed (Leviticus XVIII, 6). Case law has traditionally tended toward the conservative. It is reactive rather than directive, exerting its influence only after an individual or group has sustained injury and brought suit. In contrast, state legislatures have not been (...) inhibited in enacting statutes. Many of their products can be characterized as hasty, unnecessary, ill-conceived, and based on the heart rather than the head. Moreover the lack of expert consultation sought has also been remarkable. One state legislature, for example, has advocated immunization for sickle cell anemia! Many others have enacted laws for the screening of inborn errors of metabolism, e.g., phenylketon uria, but have poorly defined the lines of responsibility to secure compliance. A spate of specific disease-related bills has emerged in the u.S. Congress, each seeking recognition and appropriations. Sickle cell anemia, hemophilia, Cooley's anemia and Tay-Sachs disease have been among the front-runners for support. Finally, in 1975, Congress has begun to examine an omnibus bill concerning all forms of genetic disease. The bill, termed the National Genetic Diseases Act is, however, still far from being enacted. (shrink)

This special volume of Health Care Analysis is dedicated to a consideration of the status of body parts and products and the roleof law in regulating them. We argue that such a discussion is timely giventhe conflation of technological and academic concerns posed by thecomplex legal framework within which these issues are currentlyaddressed and in the light of debates such as those regardingthe storage of children's organs addressed by inquiries atAlder Hay and Bristol, United Kingdom. The contributors addressspecific legal (...) problems which have been brought before the courts in the UK and other jurisdictions, something which wesuggest is likely to occur with increasing regularity oncethe Human Rights Act 1998 comes into force in October 2000.The issues are also considered on a more theoretical level with papers exploring the role of concepts such as property, donation, commodification and kinship in these debates.While the volume focuses principally upon the manner inwhich these issues have arisen in a UK context, though withreference to certain comparative examples, the concepts discussed here are of more general application acrossother jurisdictions. (shrink)

The Human Rights Studies Programme, School of International Studies (JNU), in collaboration with the Centre for Inner Asian Studies, School of International Studies (JNU), and the Indian Law Institute (Delhi), organized a Human Rights Day Webinar on the Intersections of Human Rights and Criminal Law on December 9-10, 2021. Experts and young scholars from the field shared their insights and research on the webinar theme. The presentations were organized under four sessions, including Session I on Rights Jurisprudence (...) and Criminal Law, Session II on Proposals for Criminalisation and Decriminalisation, Session III on Crimes, Victims, and Punishments, and Session IV on Reforms in the Future. The Webinar was conceptualized keeping in view the responsibility of states under international human rights law to prohibit and punish for the protection of human rights and the redressal of violations. The obligations of States to prohibit and punish inform the development of criminal rules and procedures under different legal systems, leading to the near universalization of legislative frameworks, legal justifications, and punishments. In the working of international human rights institutions, the criminal laws adopted by States are an indicator or marker of the level of compliance of States with the international mandates. In recent years, the interface between the two fields, i.e., international human rights and domestic criminal laws, has sparked great jurisprudential, political, and constitutional debates in different parts of the world. Against this backdrop, the Webinar was organized on Human Rights Day to discuss the relevant issues. (shrink)

This special volume of Health Care Analysis is dedicated to a consideration of the status of body parts and products and the roleof law in regulating them. We argue that such a discussion is timely giventhe conflation of technological and academic concerns posed by thecomplex legal framework within which these issues are currentlyaddressed and in the light of debates such as those regardingthe storage of children's organs addressed by inquiries atAlder Hay and Bristol, United Kingdom. The contributors addressspecific legal (...) problems which have been brought before the courts in the UK and other jurisdictions, something which wesuggest is likely to occur with increasing regularity oncethe Human Rights Act 1998 comes into force in October 2000.The issues are also considered on a more theoretical level with papers exploring the role of concepts such as property, donation, commodification and kinship in these debates.While the volume focuses principally upon the manner inwhich these issues have arisen in a UK context, though withreference to certain comparative examples, the concepts discussed here are of more general application acrossother jurisdictions. (shrink)

The experience of the twentieth century bears witness to the abuse, mutilation and homicide of the vulnerable made possible by the power of the state, mass markets, and medical and financial interests. Suggestions for reform of the law regarding food and fluids typically take place in the context of utilitarian personistic “quality-of-life” presuppositions, and interests in shifting legal responsibility for life-and-death decisions, medical research, drug trials, organ harvesting as well as more mundane bureaucratic concerns like bed-clearing. With the Western world (...) undergoing massive demographic change and a growing ageing and non-productive population, it cannot be assumed that these alterations to the positive law are problem-free. By allowing new agents power to require that food and fluids be withdrawn, non-therapeutic research and other procedures (like abortion and sterilisation) be performed on non-consenting patients, novel legislation such as that discussed cannot be regarded as autonomy enhancing so much as a threat to human rights. These laws although touted as progressive, more often than not invite routine abuse and destruction of the vulnerable, obscure accountability and create an inconsistent body of law, with conflicting obligations for health professionals. (shrink)

The originality of this volume lies in the interdisciplinary synergies that emerge through the issues it explores and the approaches it adopts. It offers legal and ethical reflections on the criminal qualification of a series of conducts ranging from human experimentation and non-consensual medical interventions to organ transplant trafficking and marketing of human body parts. It also considers procedural matters, notably related to psychiatric and medical evidence. In so doing, it combines legal and other types of conceptualizations (...) to examine such contemporary issues as rights of the LGBTIQ population, access to medical care, corporate criminal liability, rights of children and Islamic jurisprudence. (shrink)

This special issue of the Modern Law Review addresses a range of key issues - conceptual, ethical, political and practical - arising from the regulatory ...

Technologies like CRISPR and gene drives are ushering in a new era of genetic engineering, wherein the technical means to modify DNA are cheaper, faster, more accurate, more widely accessible, and with more far-reaching effects than ever before. These cutting-edge technologies raise legal, ethical, cultural, and ecological questions that are so broad and consequential for both human and other-than-human life that they can be difficult to grasp. What is clear, however, is that the power to directly alter not (...) just a singular form of life but also the genetics of entire species and thus the composition of ecosystems is currently both inadequately regulated and undertheorized. In Gene Editing, Law, and the Environment, distinguished scholars from law, the life sciences, philosophy, environmental studies, science and technology studies, animal health, and religious studies examine what is at stake with these new biotechnologies for life and law, both human and beyond. (shrink)

This edited volume covers new ground by bringing together perspectives from symbolic legislation theory on the one hand, and from biolaw and bioethics on the other hand. Symbolic legislation has a bad name. It usually refers to instances of legislation which are ineffective and that serve other political and social goals than the goals officially stated. Recently, a more positive notion of symbolic legislation has emerged in legislative theory. From this perspective, symbolic legislation is regarded as a positive alternative to (...) the more traditional, top-down legislative approach. The legislature no longer merely issues commands backed up with severe sanctions, as in instrumental legislation. Instead, lawmakers provide open and aspirational norms that are meant to change behavior not by means of threat, but indirectly, through debate and social interaction. Since the 1990s, biomedical developments have revived discussions on symbolic legislation. One of the reasons is that biomedical legislation touches on deep-rooted, symbolic-cultural representations of the biological aspects of human life. Moreover, as it is often impossible to reach consensus on these controversial questions, legislators have sought alternative ways to develop legal frameworks. Consequently, communicative and interactive approaches to legislation are prominent within the governance of medical biotechnology. The symbolic dimensions of biolaw are often overlooked. Yet, it is clear that the symbolic is at the heart of many legal-political debates on bioethical questions. Since the rise of biomedical technologies, human body materials have acquired a scientific, medical and even commercial value. These new approaches, which radically question existing legal symbolizations of the human body, raise the question whether and how the law should continue to reflect symbolic values and meanings. Moreover, how can we decide what these symbolic values are, given the fact that we live in a pluralistic society? (shrink)

This book examines the controversies surrounding biomedical research in the twenty-first century from a human rights perspective, analyzing the evolution and ...

This work provides, for the first time, a unified account of the theory of action presupposed by both British and American criminal law and its underlying morality. It defends the view that human actions are volitionally caused body movements. This theory illuminates three major problems in drafting and implementing criminal law--what the voluntary act requirement does and should require, what complex descriptions of actions prohibited by criminal codes both do and should require, and when the two actions are (...) the "same" for purposes of assessing whether multiple prosecutions and multiple punishments are warranted. The book contributes to the development of a coherent theory of action in philosophy. It provides a grounding in three of the most basic elements of criminal liability for legislators, judges, and the lawyers who argue to them. (shrink)

The Human Genome Project is an expensive, ambitious, and controversial attempt to locate and map every one of the approximately 100,000 genes in the human body. If it works, and we are able, for instance, to identify markers for genetic diseases long before they develop, who will have the right to obtain such information? What will be the consequences for health care, health insurance, employability, and research priorities? And, more broadly, how will attitudes toward human differences (...) be affected, morally and socially, by the setting of a genetic “standard”? The compatibility of individual rights and genetic fairness is challenged by the technological possibilities of the future, making it difficult to create an agenda for a “just genetics.” Beginning with an account of the utopian dreams and authoritarian tendencies of historical eugenics movements, this book’s nine essays probe the potential social uses and abuses of detailed genetic information. Lucid and wide-ranging, these contributions will interest bioethicists, legal scholars, and policy makers. Essays: “The Genome Project and the Meaning of Difference,” Timothy F. Murphy “Eugenics and the Human Genome Project: Is the Past Prologue?,” Daniel J. Kevles “Handle with Care: Race, Class, and Genetics,” Arthur L. Caplan “Public Choices and Private Choices: Legal Regulation of Genetic Testing,” Lori B. Andrews “Rules for Gene Banks: Protecting Privacy in the Genetics Age,” George J. Annas “Use of Genetic Information by Private Insurers,” Robert J. Pokorski “The Genome Project, Individual Differences, and Just Health Care,” Norman Daniels “Just Genetics: A Problem Agenda,” Leonard M. Fleck “Justice and the Limitations of Genetic Knowledge,” Marc A. Lappé. (shrink)

Despite its absence in the written text of the European Convention on Human Rights, the European Court of Human Rights now regularly uses the concept of autonomy when deciding cases concerning assisted dying, sexuality and reproductive rights, self-determination, fulfilment of choices and control over body and mind. But is the concept of autonomy as expressed in the ECtHR reasoning an appropriate tool for regulating reproduction or medical practice? Caring Autonomy reveals and evaluates the type of individual the (...) ECtHR expresses and shapes through its autonomy-based case law. It claims that from a social and ethical perspective, the current individualistic interpretation of the concept of autonomy is inadequate, and proposes a new reading of the concept that is rooted in the acknowledgment and appreciation of human interdependence and the importance of interpersonal trust and care. (shrink)

The trend toward the “humanization” of international law reflects a greater emphasis on individuals rather than simply states as objects of concern. The advance of human rights law (HRL) has been an important impetus for this trend. Some observers suggest that humanization can be furthered even more by applying HRL rather than international humanitarian law (IHL) to hostilities between states and nonstate armed groups, unless a state explicitly declares that it is engaged in an armed conflict. This essay argues, (...) however, that a court should not defer to a state's characterization of hostilities, but should base its analysis on whether hostilities meet the criteria for an armed conflict. Applying HRL to hostilities that effectively are an armed conflict but not acknowledged as such risks diluting the legitimacy and normative force of HRL. On the one hand, if a court applies conventional stringent HRL standards, this body of law may be seen as unrealistic and is likely to be ignored. On the other hand, a court that adapts HRL standards to armed conflict may need to take a consequentialist approach at odds with HRL's deontological foundations. Clearly differentiating between HRL and IHL may thus best promote the humanization of warfare. (shrink)

This article interrogates whether and how the concept of ‘patriarchy’ is used by UN human rights treaty monitoring bodies (treaty bodies) and special procedures to interpret state obligations to respect and ensure women’s human rights. There are two key points that arise out of this study: first, that several treaty bodies and special procedures purposely and consistently use the concept of ‘patriarchy’ when discussing women’s human rights, and second, that although not all treaty bodies and special procedures (...) have referred to the terms ‘patriarchy’ or ‘patriarchal’, an examination of those that have reveals a marked difference in how the terms are used by treaty bodies when compared with special procedures. While treaty bodies render the meaning of ‘patriarchy’ as being synonymous with certain harmful practices, such as female-genital mutilation (FGM), special procedures utilise ‘patriarchy’ as a system of power, permeating every facet of society. In this article I will argue that the current state of dissonance between the understandings of ‘patriarchy’ by treaty bodies and special procedures creates an unnecessary ambiguity that does nothing to advance gender equality. Furthermore, utilising a nuanced understanding of patriarchy, as articulated by intersectional and anti-essentialist feminist scholars, would potentially equip treaty bodies and special procedures for more meaningful interpretation of rights themselves, and greater protection of women’s human rights. (shrink)

The focus of this book is on the epistemological and hermeneutic implications of data science and artificial intelligence for democracy and the Rule of Law. How do the normative effects of automated decision systems or the interventions of robotic fellow 'beings' compare to the legal effect of written and unwritten law? To investigate these questions the book brings together two disciplinary perspectives rarely combined within the framework of one volume. One starts from the perspective of 'code and law' and the (...) other develops from the domain of 'law and literature'. Integrating original analyses of relevant novels or films, the authors discuss how computational technologies challenge traditional forms of legal thought and affect the regulation of human behavior. Thus, pertinent questions are raised about the theoretical assumptions underlying both scientific and legal practice. (shrink)

This paper is framed around a close reading and discussion of the juridical category of "caste atrocity," a form of postcolonial legislation instituted by the Indian state in 1955 to protect Dalits, or ex-untouchables, from the threat of upper-caste violence. The paper addresses the problematic permeability between humanity and violence assumed by such protective laws, and argues that rather than protecting Dalits from harm, laws to prevent violence have instead succeeded in making caste violence visible, and a new site of (...) political activism: spectacular and everyday practices of violence confirm the partial or uncertain humanity of historically stigmatized subjects, but it is also the case that violence functions as a form of public communication that enables new formations of caste politics. The paper ends by suggesting that attention to the biopolitics of caste can help produce a global accounting of how the violated subject has come to be constituted as a "body of the state.". (shrink)

There have been serious controversies in the latter part of the 20th century about the roles and functions of scientific and medical research. In whose interests are medical and biomedical experiments conducted and what are the ethical implications of experimentation on subjects unable to give competent consent? From the decades following the Second World War and calls for the global banning of medical research to the cautious return to the notion that in controlled circumstances, medical research on human subjects (...) is in the best interest of the given individual and the broader population, this book addresses the key implications of experimentation on humans. This volume covers major ethical themes within biomedical research providing historical, philosophical, legal and policy reflections on the literature and specific issues in the field of research on human subjects. Focusing on special populations (the elderly, children, prisoners and the cognitively impaired) it represents the most up-to-date review of the special ethical and legal conflicts that arise with relation to experimentation on subjects from these groups. In the light of current initiatives for law reform pertaining to research ethics the world over, this volume provides a timely, comprehensive and provocative exploration of the field. The volume has been carefully organized to present important philosophical perspectives on organizing principles that should underlie any practical application. A forward-looking historical review of the regulatory regimes of principal jurisdictions, including of the legal controls already in place, provides the backdrop for future policy initiatives. Additionally, in the light of global restructuring of health care systems, several chapters have been devoted to epidemiological research and related issues. (shrink)

Trafficking in human body parts is one of the most severe form of crime in modern times. The topicality of this phenomenon reinforces the fact that it is intertwined with organised crime and human despair. The resulting repercussions are dangerous for the “donor”, prosperous for the “intermediaries”, and vital for the “recipient”. The paper analyses the phenomenon of trafficking in human body parts, which is directly related to the development of transplant medicine and surgery. (...) class='Hi'>Human organ transplantation is moving toward indicative ethics, as ethics of responsibility, and is gradually moving beyond imperative ethics, emphasising duty. Human organ donation is an act of self-sacrifice. Therefore, from an ethical and moral perspective, the commercialization or trafficking of human organs is unacceptable because it violates human dignity. In addition to the ethical implications, the paper analyses international documents on this topic and the Croatian normative regulations on this issue. Finally, bioethical and criminal law answers to this question are given. (shrink)

In the wake of three high-profile judicial decisions concerning the use of human biological materials, the editors of this collection felt in 2011 that there was a need for detailed scholarly exploration of the ethical and legal implications of these decisions. For centuries, it seemed that in Australia and England and Wales, individuals did not have any proprietary interests in their excised tissue. Others might acquire such interests, but there had been no clear decision on the rights or otherwise (...) of the persons from whom the tissue was obtained. In 2009, however, the Court of Appeal of England and Wales recognised a limited exception to this position in Jonathan Yearworth and others v North Bristol NHS Trust . In that case, the Court held that the appellants, who had deposited semen samples for freezing before they undertook treatment for cancer, had “for the purposes of a claim in negligence … ownership of the sperm which they had ejaculated”. One year later, the Supreme Court of Queensland, Australia, took a similarly property-based approach to determining how a semen sample stored shortly before death should be dealt in Bazley v Wesley Monash IVF . According to that court, the co-executors of the estate had sufficient proprietary interests in the semen to legally demand its return from the laboratory where it was held. In 2011, the New South Wales Supreme Court similarly found that the widow of a recently deceased man had a right to possession of his semen in Joceyln Edwards; Re the estate of the late Mark Edwards .In the editors’ view, these decisions signalled a turning point in the Anglo-Australian jurisprudence in this area, taking the law a step beyond the decisions of the late 20th century such as R v Kelly , in which possessory rights were found …. (shrink)

This book celebrates Professor Margaret Brazier's outstanding contribution to the field of healthcare law and bioethics. It examines key aspects developed in Professor Brazier's agenda-setting body of work, with contributions being provided by leading experts in the field from the UK, Australia, the US and continental Europe. They examine a range of current and future challenges for healthcare law and bioethics, representing state-of-the-art scholarship in the field. The book is organised into five parts. Part I discusses key principles and (...) themes in healthcare law and bioethics. Part II examines the dynamics of the patient-doctor relationship, in particular the role of patients. Part III explores legal and ethical issues relating to the human body. Part IV discusses the regulation of reproduction, and Part V examines the relationship between the criminal law and the healthcare process. Offering a collaborative review of key and innovative themes in the field, the book will be of great interest and use to academics and students working in healthcare law and bioethics, and those working in health policy, law and regulation at both national and international levels. (shrink)

This volume provides a comprehensive analysis of the history, development and other legal aspects relating to International Medical Law and covers issues arising from not only the physician-patient relationship, but also with many wider juridical relations involved in the broader field of medical care in the international arena.00After a general introduction, the book examines the evolution of medical law in different civilizations that existed all over the world. It systematically describes the sources of this law from conventions, treaties along with (...) discussing the important role played by the courts, international institutions and other bodies related to the medical field. The comprehensive coverage includes public health law, international spread and prevention of diseases. This volume covers medical ethics and clinical ethics; considerations to facets of the medical professionals and patients relationship such as rights and responsibilities of the physicians, beneficence, consent, privacy, rights of patients and risk management. Also covered are issues of international concern like medical criminal activities, human and drug trafficking, trade in human organs, human medical research, as well as matters dealing with bio-technology in relation to bio-safety, bio-security, bio-genetics, bio-ethics, and the role of medical personnel in armed conflicts. (shrink)

In this article, we examine disability and eugenics discourses and the ways they function in spaces where vulnerable persons have been historically excluded by the state and blamed for their own “immiseration.” We ask how queer theories of repudiation, abjection, and vulnerability lend insight into the ways that people with intellectual disabilities are discursively located outside normative discourses of home, care, and quality of life, and whether these discourses shifted to serve this vulnerable population when historically the very places in (...) question repudiated them, infringed on their human rights, and questioned their sexuality. To address these questions, we focus on the recent and impending closures of Virginia’s Training Centers, residential institutions for persons with intellectual disabilities now scheduled for staggered closures before 2020. (shrink)

The governance of human (germline) genome modification at the international and transnational level -- The regulation of human germline genome modification in Canada (E Kleiderman) -- The regulation of human germline genome modification in the United States (Kerry Macintosh) -- The regulation of human germline genome modification in Mexico (M Medina Arellano) -- The regulation of human germline genome modification in Europe (J Almqvist, C Romano) -- The regulation of human germline genome modification in (...) the United Kingdom (J Lawford Davies) -- The regulation of human germline genome modification in Germany (T Faltus). (shrink)

"An important contribution to contemporary jurisprudential debate and to legal thought more generally, Just Interpretations is far ahead of currently available work."--Peter Goodrich, author of Oedipus Lex "I was struck repeatedly by the clarity of expression throughout the book. Rosenfeld's description and criticism of the recent work of leading thinkers distinguishes his work within the legal theory genre. Furthermore, his own theory is quite original and provocative."--Aviam Soifer, author of Law and the Company We Keep.

In lieu of an abstract, here is a brief excerpt of the content:The Commandment against the Law Writing and Divine Justice in Walter Benjamin’s “Critique of Violence”Tracy McNulty (bio)Pierre Legendre has shown that the Romano-canonical legal traditions that form the foundations of Western jurisprudence “are founded in a discourse which denies the essential quality of the relation of the body to writing” [“Masters of Law” 110]. It emerges historically as a repudiation of Jewish legalism and Talmud law, where the (...) rite of circumcision encodes the subject’s entry into law as an “allegiance to the absolute Writing,” or the “relationship between the human subject and the logical place of the Other” [110–11; see also “les juifs”]. In this shift, one understanding of writing is displaced by another: the material inscription of the letter, as an incommunicable limit or cut, is supplanted by the fantasy of what Legendre calls a “living writing,” a writing “in the heart” that promotes an ideal of perfect communication in which nothing is lost, in which meaning is lodged in an absolute Other who guarantees all knowledge. In his words, “we belong to a culture in which a mystically alienated human body stands in the place of the absolute book. The state has emerged from this structure.... Its basic characteristics can be set out by means of a fundamental Romano-pontifical maxim: the Emperor carries all the archives in his breast (omnia scrinia habet in pectore suo)” [“Masters of Law” 109].The ultimate theological source of this Roman maxim is Paul’s polemic against the Jewish law in the Epistle to the Romans. Paul’s polemic is structured by a distinction between two orders of law: the “law of God” and the “law of sin.” The first is associated with the intelligible “spirit” of the law, which is “written in the heart,” the second with the prescriptive “letter” of the Jewish law, which compromises or corrupts the first by binding it to a particular representation and consigning it to written form. Paul’s solution is to bypass the law, to bypass representation, and perhaps even language itself. The prescriptive “letter” of the Jewish law must be sublated by the law of the spirit, such that “we serve not under the old written code but in the new life of the Spirit” [Romans 7: 6]. Christ, as the living embodiment of the law of God, upholds the spirit of the law by “fulfilling”––and so rendering obsolete–its written form.The doctrine of Christ as the “living law” sustains what Legendre describes as a “banalisation of writing” [“Masters of Law” 111], a disregard for its material inscription that holds the letter to be nothing more than a placeholder, a flawed or incomplete representation of a meaning or truth that is itself beyond words. At the same time, it makes possible the legal and political fantasy of a living writing, located in a single body understood as the site of interpretive authority. The extraction of a meaning or truth from the intractable letter becomes the ultimate aim of the legal order and the most lofty task of its sovereign interpreter, uniquely charged with animating the dead letter. This notion permeates what Peter Goodrich describes as “the most standard protocols of legal reading,” according to [End Page 34] which “it is not the letter but the spirit that determines the meaning of the law”:The text is composed of dead letters (litera mortua); the rule is no more than a “mute judge,” a sleeping form, requiring the interposition, anima legis, of jurist or judge.... [T]he meaning of the law is internal to its living body, viva vox iuris or lex loquens, its image, interpreter, or legislator. In classical terms it is spelled out by reference to something beyond words: “to know the law is not to know the words of the law, but its force and power.” In a renaissance formulation we are similarly told that “no words, forms, niceties, or propriety of language is of any regard in the Civil Law, in comparison to truth, faithfulness and integrity. For verba menti, non verbis servire debet; words, are made as instruments to serve and express the mind, and not to command it.”[229–30]1... (shrink)

How should we deal with mental disorder - as an "illness" like diabetes or bronchitis, as a "problem in living", or what? This book seeks to answer such questions by going to their roots, in philosophical questions about the nature of the human mind, the ways in which it can be understood, and about the nature and aims of scientific medicine. The controversy over the nature of mental disorder and the appropriateness of the "medical model" is not just an (...) abstract theoretical debate: it has a bearing on very practical issues of appropriate treatment, as well as on psychiatric ethics and law. A major contention of this book is that these questions are ultimately philosophical in character: they can be resolved only if we abandon some widespread philosophical assumptions about the "mind" and the "body", and about what it means for medicine to be "scientific". The "phenomenological" approach of the twentieth-century French philosopher, Maurice Merleau-Ponty is used to question these assumptions. His conception of human beings as "body-subjects" is argued to provide a more illuminating way of thinking about mental disorder and the ways in which it can be understood and treated. The conditions we conventionally call "mental disorders" are, it is argued, not a homogeneous group: the standard interpretation of the medical model fits some more readily than others. The core mental disorders, however, are best regarded as disturbed ways of being in the world, which cause unhappiness because of deviation from "human" rather than straightforwardly "biological" norms. That is, they are problems in how we experience the world and especially other people, rather than in physiological functioning - even though the nature of our experience cannot ultimately be separated from the ways in which our bodies function. This analysis is applied within the book both to issues in clinical treatment and to the special ethical and legal questions of psychiatry. Written by a well known philosopher in an accessible and clear style, this book should be of interest to a wide range of readers, from psychiatrists to social workers, lawyers, ethicists, philosophers and anyone with an interest in mental health. (shrink)

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears between these two (...) ideas, I argue that parliamentary privilege and the rule of law, properly understood, support rather than oppose one another. However, the ideas can be reconciled only if we reject the jurisdictional and categorical approach to parliamentary privilege adopted recently by the Supreme Court of Canada in Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30. This approach should be rejected because it trades on an unsustainable distinction between review of the scope of an asserted privilege and review its actual exercise, with the Court finding that only issues of scope are subject to review, even if important human rights are at stake. (shrink)

In recent case-law under the Human Rights Act 1998, the senior judiciary have reiterated the view that their task under section 3(1) of the Act is one of ‘interpretation rather than legislation’. This article has two main aims. The first is to provide a general, theoretical analysis of the extent to which it is possible (if at all) to distinguish between interpretation and legislation. The second is to examine the judicial understanding of this distinction, as revealed through judgments in (...) the HRA case-law. (shrink)