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most support will succeed. These values provide the source for, and become objectified in processes which create new laws, rules and conventions. This chapter has demonstrated the irrefutable relationship between law and values. So why is law and legal decision making portrayed as value-free, even when this position is clearly unsustainable? And why do we continually seek to objectify values and then detach the subjective, human component from the process? These are the concerns of the next theoretical stage of values-based law. 98
Chapter 3 – Bad Faith Values-based law challenges the myth that society's laws, rules and conventions are anything other than essentially human, values-based constructs. In order to show this and to develop my theory of values-based law I have made use of seventeenth century philosophers’ rather bleak portraits of human nature in the absence of law, rules or conventions; Golding’s equally depressing portrayal of English school boys without the normal social constraints; and several contemporary illustrations of the same tendency. I have also drawn on the theoretical perspectives of Kuhn, and Berger and Luckmann, to demonstrate that we objectify values through normalisation and socialisation processes in response to the state of nature. However, a deep puzzle remains: why is it that we do not always recognise that we use methods of objectification? Man is capable of producing a world that he then experiences as something other than a human product. Berger and Luckman 1966, p. 78 This chapter makes use of the philosophy of Sartre and the psychological experiments of Stanley Milgram to explore this puzzle. Sartre, existentialism and bad faith – a brief introduction Jean-Paul Sartre was a twentieth century existentialist French philosopher. Existentialism takes as its point of departure the concrete individual struggling to makes sense out of his or her life (Kamber, 2000, p. 5). Sartre provides important clues about how and why we employ methods of objectification. These ideas, and in particular his notion of bad faith, are central to this thesis. However, some of Sartre’s ideas which support the notion of bad faith are unrealistic and logically flawed. It would be impossible to deal with the intricacies of Sartre’s philosophy within the confines of this thesis. Instead, I distil some of Sartre’s key ideas and show how they inform and guide my understanding of values-based law. 99
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A Philosophical Critique of the Bes
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Legal principle ...................
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Legal process .....................
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Attestation of Authorship “I here
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Dedication To all the people who ha
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Introduction This thesis is a philo
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• Detention of an adult with auti
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compatible donor. Y appeared to be
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grounds. The value judgements which
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Cases concerning sterilisation of w
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esearch, Mercer identified the bias
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the judge conclude that the applica
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Chapter 1 - The objectivist myth Th
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purely empirically and scientifical
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of values-based law is based on the
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knowledge, and suggests that if kno
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Aren’t some values fundamental? A
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economics and sociology. A differen
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Some of Damasio’s everyday exampl
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longer do so? Or because he has no-
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Hume’s psychology of the passions
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authority is refuted by Kohlberg’
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Societies and cultures Biological f
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cases by means of precedent; “by
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throughout the world. Sir Meadow ac
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paradigm, legal methods are employe
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Precedent It has been argued that w
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eading the same newspapers and watc
Page 57 and 58: Dworkin’s response appears to be
Page 59 and 60: that the behaviour has detrimental
Page 61 and 62: means, for example, that people are
Page 63 and 64: Kant’s philosophy is uncompromisi
Page 65 and 66: know the victim is your son. Kant
Page 67 and 68: greatest number. Faced with the ver
Page 69 and 70: eal life decisions is impossible wi
Page 71 and 72: Chapter 2 - Values-based Law There
Page 73 and 74: ules which is decisive on every iss
Page 75 and 76: the social world that we live in. C
Page 77 and 78: Consider another incident in Lord o
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Page 81 and 82: Part Two - The State of Nature The
Page 83 and 84: maintaining the fire. The fire goes
Page 85 and 86: the boys, they discard their identi
Page 87 and 88: Locke, 2002, p. 3 Accordingly, natu
Page 89 and 90: Stage three is the state of nature.
Page 91 and 92: Describing the background to his no
Page 93 and 94: longer calmer periods - which he ca
Page 95 and 96: As time distanced the boys from the
Page 97 and 98: In response to the new paradigm, th
Page 99 and 100: The public debate facilitates the e
Page 101 and 102: Consider the enactment of English p
Page 103 and 104: sun. And so on. We do not say, at t
Page 105 and 106: Theoretical methods for fixing laws
Page 107: Consider the recent enactment of th
Page 111 and 112: In Being and Nothingness Sartre int
Page 113 and 114: What makes bad faith bad? If we per
Page 115 and 116: How can we believe by bad faith in
Page 117 and 118: Good faith A further implication of
Page 119 and 120: mother.” (Warnock, 1978, p. 117).
Page 121 and 122: The Milgram experiments and bad fai
Page 123 and 124: The agentic state From his findings
Page 125 and 126: Self-deception For Sartre, self-dec
Page 127 and 128: to continue to follow the orders of
Page 129 and 130: state in which soldiers become inst
Page 131 and 132: emain unanswered and important aspe
Page 133 and 134: Conscious awareness However success
Page 135 and 136: Objectification. Intention Deceptio
Page 137 and 138: Case study 2 - the American soldier
Page 139 and 140: of this kind, unfathomable situatio
Page 141 and 142: Good faith Gillman’s research dem
Page 143 and 144: the question at hand. The question
Page 145 and 146: opportunities for discussion and de
Page 147 and 148: situations we meet in our every day
Page 149 and 150: I contend that because we seek cert
Page 151 and 152: For years, health professionals hav
Page 153 and 154: The sterilisation was regarded as u
Page 155 and 156: the sterilisation procedure would b
Page 157 and 158: Decision making is further inhibite
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subjectivity and denying the inesca
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uncertainty about the provision of
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In 3 instances 12 it was establishe
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childbirth, child-rearing, and that
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More recent research supports Saber
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doctor reported that C “did under
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assertion that traditional societie
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Re M appears to be the only case in
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irregular periods. The mother descr
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hysterectomy for a 29 year old woma
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Three cases adopted a predominantly
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A cluster of cases from Australia f
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equires a ceasarian section deliver
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(1) In determining for the purposes
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clinical judgement values are objec
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Conclusion and recommendations An a
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allocation of scarce health resourc
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Values transparency in best interes
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What if… judges were able to expl
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Epilogue I write this epilogue in r
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of high quality research’ at the
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Visualising our personal values on
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Rational fields Rational fields and
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Type 5: ‘Filing reality - classif
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Within the rational field is not on
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conclusion about value, about what
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A similar picture emerges from the
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The present appeal raises moral, le
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expressing differing emotional resp
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Environment Doctor knows best Relat
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Statute The Code of Health and Disa
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Re S (Medical Treatment; Adult Ster
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Biegler, P. (2002). Should patients
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Eastman, N., & Peay, J. (1999). Law
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Henaghan, M. (2002). Human rights a
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Laurie, G. T., & Mason, J. K. (2000
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Myser, C. (1994). A philolosophical
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Singer, P. (2001). Writings on an E
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Case reference Re H [1993] NZFLR LE
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Re S (Medical Treatment; Adult Ster
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In re B (A Minor) Wardship: Sterili
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Case reference Re X (Sterilisation:
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Re Marion (No 2) [1992] 17 FamLR Au
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Re S (Adult Patient: Sterilisation)
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