The Problem of Counterfactuals in Substituted Judgement Decision‐Making

The standard by which we apply decision‐making for those unable to do so for themselves is an important practical ethical issue with substantial implications for the treatment and welfare of such individuals. The approach to proxy or surrogate decision‐making based upon substituted judgement is often seen as the ideal standard to aim for but suffers from a need to provide a clear account of how to determine the validity of the proxy's judgements. Proponents have responded to this demand by providing the truth‐conditions for the substituted judgement in terms of counterfactual reasoning using a possible worlds semantics. In this paper, I show how these underpinnings fail to support the substituted judgement approach as a reasonable standard for decision‐making. Firstly, I show how this counterfactual element has been poorly interpreted. I then explain how various accounts have failed to reflect problems and limitations associated with providing an interpretation of their truth‐conditions using counterfactuals. Finally, I argue that, even when we attend to the initial problems of providing a counterfactual analysis, it still deeply problematic as a means of determining the validity of substituted judgements for two main reasons. Firstly, making determinate judgements as to the truth‐value of these judgements will often not be possible and, secondly, there is a strong requirement when interpreting many counterfactual claims to charitably accede to their being true. I conclude that substituted judgements, as interpreted through counterfactual reasoning and possible worlds semantics, do not therefore provide an adequate standard for surrogate decision‐making.     

The Philosophy of State Compensation

Notwithstanding that there is now widespread interest in the rights of victims, little has been written about the theoretical justification of state compensation. Here we offer an initial exploration of the field in the hope that others might venture further and examine the points at which issues of compensation connect with other general and specific themes in social and political philosophy. For example, there has been much discussion about communitarian conceptions of civil society but the practical implications of such views, other than those relating to multiculturalism, have been largely ignored. The application of theory to social policy needs to take account of existing laws and institutions and these vary from one society and jurisdiction to another. In what follows we are principally concerned with the situation obtaining in the United Kingdom but the underlying issues are general ones [1].