Drugs, Morality and the Law

Arguments for and against the legal prohibition of drugs are surveyed. Various kinds of argument are identified and analysed: arguments against prohibition from a moral right to personal liberty; utilitarian and contractualist arguments for a right to personal liberty; arguments for prohibition from liberty–limiting principles (the harm principle, legal paternalism, legal moralism, Kantian duties to oneself, legal perfectionism, traditional conservatism, and communitarianism); utilitarian argument for prohibition; utilitarian argument against prohibition. It is concluded that none of the arguments for drug prohibition is convincing.     

Asserting scientific authority. Cognitive development and adolescent legal rights

The APA uses amicus briefs to communicate scientific knowledge to the legal system. There can be tension, however, between promoting the social good through law and the disinterested reporting of scientific data. This article examines this conflict by discussing two APA amicus briefs filed in the United States Supreme Court in cases involving adolescents' abortion rights. The Court has restricted adolescents' rights to make important life decisions in part because adolescents have been presumed to lack competence and maturity. The briefs argued that developmental theory and data confirm that adolescents and adults have equivalent decision-making capacities. The scientific arguments in the briefs, however, do not justify this assertion. Analysis of the briefs illuminates some dimensions describing the role of a scientific statement in a legal brief. These dimensions identify ways to limit scientific claims about the evidence at hand to avoid overstatement. The primary danger of overstatement is that it undermines psychology's claim to expert authority in assisting in the formation of law and the shaping of social institutions.     

Pyrrhonism in the Political Philosophy of Thomas Hobbes

The importance of Pyrrhonism to Hobbes's political philosophy is much greater than has been recognized. He seems to have used Pyrrhonist arguments to support a doctrine of moral relativity, but he was not a sceptic in the Pyrrhonist sense. These arguments helped him to develop his teaching that there is no absolute good or evil; to minimise the purchase of natural law in the state of nature and its restrictions on the right of nature; virtually to collapse natural law into civil law; and to make the sovereign the political, moral and theological epicenter of his political system.     

DOES THE THREAT OF AIDS CREATE DIFFICULTIES FOR LORD DEVLIN'S CRITICS?

Although over twenty years have passed since the Hart-Devlin exchange, the controversy over society's right to punish homosexuals remains alive, as is shown by recent concern over the spread of AIDS and the recent announcement of the Supreme Court that "majority sentiments about the morality of homosexuality" constitute an adequate justification for sodomy statutes under the due process clause of the fourteenth amendment.¹ Lord Devlin's moral justification for punishing homosexual conduct seems to follow a similar line of reasoning. The one argument to which his critics have paid the most attention begins with the assertion that society consists of a seamless web of ideas and values, the content of which is determined by whether the ordinary, reasonable person is disgusted by a particular type of conduct.² Among the types of conduct that disgust the ordinary person, he continues, is homosexual conduct.³ Therefore, Devlin concludes, society may punish homosexual conduct, even if it is consensual.     

What Lies Beyond Same‐Sex Marriage? Marriage,Reproductive Freedom and Future Persons in Liberal Public Justification

In this article I consider whether the legalization of sex-same marriage implies a right to incestuous marriage. I begin by suggesting that the liberal state get out of the 'marriage' business by leveling down to a universal civil union status. The question is then whether incestuous unions should be both legal and eligible for this status. I argue that the arguments compatible with public reason for prohibiting them outright, or even for excluding them from the permissible types of legally registered partnerships, are quite weak. The objections to allowing such relations are those from (1) child abuse; (2) unfair burdening of society; and (3) the creation of bad lives. I argue that while rape and other forms of child abuse would be no more legal or tolerated than they are now, the concern about any form of weakening a society's legal and political resources to combat such abuses does indeed register on the justificatory scale, but does not prove that such first-degree incestuous sexual relations are inherently bad enough to warrant intervention in their own right. I then argue that the concern about unfairly burdening society with unhealthy persons is not as dangerously totalitarian as we might initially fear, but nor is it strong enough to justify an outright prohibition. Finally, I argue that a concern to dissuade persons from creating certain kinds of lives (children with extreme birth defects) is also not as dangerously totalitarian as we might initially fear, and in fact goes further towards explaining why we might have a legitimate interest in intervening. Nonetheless, I argue that the criminalization of such acts only make sense when they are indicators of other offenses, namely negligence or abuse, and it thus seems that the act of consanguineous reproduction is itself insufficient.     

AIDS testing for employment purposes? facts and controversies

Employers are becoming directly involved in the AIDS crisis as the number of employees suffering from the disease grows. AIDS in the workplace raises a host of new questions, some of them highly controversial. This paper focuses on one such controversy—AIDS testing for employment purposes. Brief medical and legal overviews are provided before reviewing AIDS testing prevalence and diagnostic procedures. A number of arguments for and against AIDS testing for employment purposes are raised and examined against the facts. One of the conclusions is that AIDS test results are not a legally defensible basis for employment decisions. In light of this position, the paper ends with a discussion of employers' responsibilities in managing AIDS cases in the workplace.     

Against Welfare Subjectivism

Subjectivism about welfare is the view that something is basically good (bad) for you if and only if, and to the extent that, you have the right kind of favorable (disfavorable) attitude toward it under the right conditions. I make a presumptive case for the falsity of subjectivism by arguing against nearly every extant version of the view. My arguments share a common theme: theories of welfare should be tested for what they imply about newborn infants. Even if a theory is intended to apply only to adults, the fact that it is false of newborns may give us sufficient reason to reject it.     

Equality in Law and Philosophy

This article discusses various arguments for and against treating equality as a fundamental norm in law and political philosophy, combining prior arguments to the effect that equality is essentially an empty idea with arguments that treat it as a non‐empty but mistaken value that should be rejected. After concluding that most of the arguments for treating equality as a fundamental value fall victim to one or both of these arguments, it considers more closely arguments made by philosophers such as Ronald Dworkin and Thomas Nagel that base a duty of promoting equality on the fact that governments impose a legal order on persons without their consent. It concludes that these arguments are mistaken: if the legal order imposed by government is justified then imposing it is not wrongful and generates no duty of equal treatment, while if that order is not justified no requirement of equality of treatment would cure the lack of justification. It concludes that equality should not be a value in law or political theory, but in some cases other considerations (such as alleviating poverty and distress, promoting accuracy and substantive justice, avoiding arbitrariness, and other values) may justify particular rules that are sometimes mistakenly thought to be based on equality.     

Liberalism, legal moralism and moral disagreement

According to "legal moralism" it is part of law's proper role to "enforce morality as such". I explore the idea that legal moralism runs afoul of morality itself: there are good moral reasons not to require by law all that there is nevertheless good moral reason to do. I suggest that many such reasons have broad common-sense appeal and could be appreciated even in a society in which everyone completely agreed about what morality requires. But I also critique legal moralism from the special perspective of liberal political justice. Liberalism requires that citizens who disagree with one another on a number of morally significant matters nevertheless coexist and cooperate within a political framework of basic rights protections. When it comes to working out the most basic terms of their political association, citizens are expected to address one another within the limits of what Rawls has called "public reason". Critics of liberalism claim that this is an essentially a-moral (or expedient) attempt to evade substantive moral issues--such as the moral status of the fetus. I argue, on the contrary, that liberalism's emphasis on public reason is itself grounded in very deep--though (suitably) "non-comprehensive"--moral considerations.     

The Guise of the Guise of the Bad

It is undeniable that human agents sometimes act badly, and it seems that they sometimes pursue bad things simply because they are bad. This latter phenomenon has often been taken to provide counterexamples to views according to which we always act under the guise of the good (GG). This paper identifies several distinct arguments in favour of the possibility that one can act under the guise of the bad. GG seems to face more serious difficulties when trying to answer three different, but related, arguments for the possibility of acting under the guise of the bad. The main strategies available to answer these objections end up either undermining the motivation for GG or failing to do full justice to the nature of perverse motivation. However, these difficulties turn out to be generated by focusing on a particular version of GG, what I call the “content version”. But we have independent reasons to prefer a different version of GG; namely, the “attitude version”. The attitude version allows for a much richer understanding of the possibility of acting on what we conceive to be bad. Drawing on an analogy with theoretical akrasia and theoretical perversion, I try to show how the attitude version can provide a compelling account of perverse actions.     

L’expertise judiciaire n’est pas un préalable obligatoire au changement de sexe à l’état civil pour les personnes transsexuelles

The changing of the sex designation on the civil status for transsexual persons in France is not governed by the legislator but by the case law, the Court of cassation. This system is now insufficient, given the unequal treatment between citizens among jurisdictions. Courts and ministerial orders cannot compensate such a situation. A legislative intervention seems to be necessary. The recent decisions from the Court of cassation have awakened fears regarding the so-called obligation of a legal and medical examination before a changing of the sex designation. We do consider that it is not a preliminary stage to succeed for such a proceeding.     

Causalité juridique et imputabilité médicale : l’incidence de l’approche juridique du lien de causalité sur la pratique expertale en droit de la réparation du dommage corporel

Traditionally, a “direct and certain” causal link was required between fault and harm in order to engage an individual's compensatory liability. However, upon reading case law, it is possible to note that causality no longer necessarily has to be either direct or certain. Indeed, although the presence of a previous condition long enabled the exclusion of a direct link between a harmful event and its aftereffects, the French Court of Appeal (Cour de Cassation) now considers that pathological predispositions must no longer be taken into account (in respect of an exclusion or a reduction in the right to compensation) if these were latent, and only revealed by the harmful event. Similarly, on occasion the plaintiffs support their claims with bundles of evidence and arguments that can but force magistrates to set aside the absence of absolute certainty on a scientific level. Presumptions of accountability have even been put forward in some areas of personal injury compensation (traffic accidents and workplace accidents). The conduct and content of forensic expertises are then disrupted, both for the expert and for the victim's lawyer.     

Law and antipsychotic medications

This article reviews the origin and development of recent legal concepts surrounding use of antipsychotic medications. Complications (side effects) of certain psychiatric medications are seen as fueling the right to refuse treatment doctrine in the law. The leading cases in right to refuse treatment and right to object to treatment are presented and analyzed. The impact of Supreme Court actions on these concepts is evaluated. The influence of the various legal interpretations of right to refuse treatment on standards of psychiatric practice is explored. Have these laws made a difference on the standard of care in public mental institutions?     

Legal Audiences

This paper approaches legal argumentation from a rhetorical perspective. It discusses the nature of the audiences that are (and should be) targeted by judges in the legal process. Judicial opinions reach diverse groups of people with very different attitudes and expectations: other judges, lawyers, litigants, concerned citizens, etc. One important way in which these groups differ is that some of them are more likely to be persuaded by legalistic, precedent or statute-based arguments, while others expect judges to decide on grounds of justice or equity. So, judges face the challenge of determining whether they should select particular groups for special attention, or whether they have alternative rhetorical means to approach the problem of audience diversity. One strategy that is likely to be recommended by rhetorical scholars is that judges should not try to accommodate the various preferences of their actual readership, but that they should rather invoke an idealized audience or some version of Chaïm Perelman’s universal audience. However, the paper tries to show that the universal audience is of limited value for a discussion about how judges ought to proceed in the face of audience diversity. In particular, the idea of a universal audience does not help judges to make the choice between a legalistic or an equity-based approach to legal decision-making. By showing that this is so, the paper also raises doubts about the common thought that to invoke the universal audience in law is to appeal to natural law (as distinct from written, positive law).     

Legal punishment of immorality: once more into the breach

Gerald Dworkin’s overlooked defense of legal moralism attempts to undermine the traditional liberal case for a principled distinction between behavior that is immoral and criminal and behavior that is immoral but not criminal. According to Dworkin, his argument for legal moralism “depends upon a plausible idea of what making moral judgments involves.” The idea Dworkin has in mind here is a metaethical principle that many have connected to morality/reasons internalism. I agree with Dworkin that this is a plausible principle, but I argue that some of the best reasons for accepting it actually work against his enforcement thesis. I propose a principled distinction between the immoral-and-criminal and the immoral-but-not-criminal, and argue that a principle at least very much like it must be correct if the metaethical principle Dworkin avows is correct.     

Psychologists versus psychologists: evaluating the claims of psychologists who publicly criticize their profession

Since the 1990s, 7 psychologists have written books for a public audience expressing great dissatisfaction with mental health practitioners. These critics represent 4 English-speaking countries: Australia, Canada, the United Kingdom, and the United States. Those psychologists make 3 basic arguments: (a) any improvements attributed to psychotherapy are due to placebo effect, (b) psychological assessments have little value, and (c) clinicians do not meet the legal standards to qualify as experts in a court of law. The present author examines these arguments and concludes that these concerns are unfounded. The exception is that several forensic psychologists had been using tests that were invalid for legal purposes, but this situation has shown gradual improvement in the past 15 years.     

艾滋病人心理问题的探讨及其应对策略

我国艾滋病患者持续上升。艾滋病不仅损害了人们的躯体健康,也同时损害了人们的心理健康,引发心理危机。观察300例患者发现：抑郁症41．3％、焦虑症31．4％、报复心理20．0％、麻木8．3％。艾滋病的防治不仅仅是治疗肌体病痛的问题,还应该治疗患者的心理问题。因此运用系统论对艾滋病人心理问题中的相关问题进行探索和剖析,动员患者及全社会行动起来,才能达到对艾滋病的有效控制。     

The consequences of abortion legislation

This article examines the consequences of the 1973 US Supreme Court decision legalizing abortion as well as potential implications of proposed legilation aimed at nullifying this decision. In addition to giving women the right to determine their own reproduction, legal abortion had had beneficial health effects for both mothers and infants. The partial reversal of abortion gains due to restrictions on public funding and limitations on how and where abortions can be performed has produced a slight increase in abortion mortality, but the impact has not been dramatic. Moreover, each year since 1973, women have been obtaining abortions earlier in pregnancy. Abortion may be experienced as a loss by the mother, but there is no evidence of serious psychological sequelae. In contrast, a large body of evidence supports the physical, psychological, and social benefits of legal abortion to women, children, and families. However, proponents of the proposed Human Life Amendment place protection of the rights of the fetus over all other considerations. Their antiabortion actions have challenged the medical tradition of privacy and the confidentiality of the doctor-patient relationship. Most supporters of legal abortion would prefer that there be fewer abortions; such a decrease is more likely as a result of better education and contraceptive methods rather than coercion.     

THE VARIETIES AND REVISIONS OF ATHEISM

Abstract. The philosopher Antony Flew has argued for decades that theistic arguments cannot meet criteria of truth. In this essay I respond to Flew's recent announcement that research into the emergence of DNA provides grounds for rational belief in an intelligent orderer, a “God.” Flew's theistic turn is important for philosophers of religion and the wider science‐and‐religion dialogue. It becomes apparent, however, that Flew's “conversion” is not as decisive as one might imagine. While he admits growth in scientific and philosophical understanding, he rejects the idea of growth in religious understanding. Further, he endorses a version of “theoretical theism” while denying the practical importance of belief. Such denial of practical conviction is part of a modernist mindset that separates freedom from the embeddedness of human beings in the natural world. I conclude by noting that the entanglement of human action and wider physical processes, an entanglement seen emblematically in the environmental crisis, requires not only considering the importance of intelligence and order in the emergence of life but also the significance of human agency in claims about the divine and the natural world.