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Education The first of the skills Fulford suggests as necessary for the recognition of values in clinical practice is education. Presently, legal education equips lawyers to reject their subjective responses. Legal reasoning methods are taught and emotional responses to cases are dismissed as incapacitating and isolating (Kennedy, 1992, p. 51). However, the emergence of critical legal theory is beginning to challenge what Lord Devlin (1979, p. 4) described as the supreme judicial virtue – impartiality – as possible. Critical legal theorists have convincingly applied a variety of theoretical lenses which question the judiciary as impartial instruments of the law, for example, the application of a feminist lens (Conaghan, 1997; Keywood, 1995; Mansell, Meteyard & Thomson, 2004; Sheldon, 1997; 1998). Feminist critique has facilitated debate on the “sterile assertions of judicial partiality towards fuller, freer, debate about the moral values underlying tort law and their desirability” (Conaghan, 1997, p. 131). Conaghan’s critique demonstrates the relative absence of women from the cases which comprise tort law, and suggests that entrenched fundamental principles such as the ‘reasonable man’ taint tort law with gender bias (Conaghan, 1997, p. 125). Likewise, Patel’s account of the campaign to free Kiranjit Ahluwalia, a woman who had been the victim of relentless domestic violence, then imprisoned for the murder of her husband, powerfully illuminates a racist and sexist judiciary and legal system unconcerned with years of provocation (Patel, 1997). This is a start. But if any meaningful understanding and recognition of the influence values in law and legal process is to be achieved, education must start from the bottom up. Common understanding of the philosophical tenets of decision making is required, including improved knowledge of the place of values in reasoning. Simply having this understanding will not, in itself, necessarily lead to more transparent decision making. Seedhouse has developed a computer software package which aims to turn values into evidence by exposing value-judgements “for scrutiny by all who are making them and all who have an interest in them” (2005, p. 101). 184
What if… judges were able to explain their decisions by openly expressing their values in addition to the traditional factors? Judges repeatedly make value-judgements, why not own up to the fact? Why not make a virtue of it? Why not research and display these values for everyone to see? Seedhouse, 2005, p. 133 The system works by presenting a case study to users. For example, in best interest determinations, the facts and evidence of each case would be presented to decision makers. The system administrator puts forward a proposal about the case study. This might read something like ‘it is proposed that sterilisation is in F’s best interests’. The user then has to respond to the proposal in light of the evidence from the case study. Firstly, decision makers are asked to give an immediate response as to whether they agree or disagree with the proposal. The users then proceed through various screens, each with different tools which facilitate a process whereby the users justify and explain their reasoning. Crucially, Seedhouse’s tools highlight the values which have led to the users’ decisions. For example, if the users are more concerned with human rights than the risk of pregnancy, this will be made transparent. If the users are more concerned with their professional integrity, or their emotionally negative reaction to the proposed sterilisation, this will be revealed. The system offers a tangible mechanism for exposing values. The possibility of a system which promotes values-transparency is an exciting prospect for legal or health professionals who are involved in best interest determinations and anyone who is concerned with achieving open and honest decision making on behalf of incapacitated adults. Conclusion My thesis challenges a centuries old objectivist myth from which value-free, opaque legal methods have developed. Certainly, it is ambitious to hope that values-based law might one day be on the curriculum for law students or influence the achievement of more open, values-based, legal decision making. However, I hope that values-based 185
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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
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Dworkin’s response appears to be
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that the behaviour has detrimental
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means, for example, that people are
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Kant’s philosophy is uncompromisi
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know the victim is your son. Kant
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greatest number. Faced with the ver
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eal life decisions is impossible wi
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Chapter 2 - Values-based Law There
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ules which is decisive on every iss
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the social world that we live in. C
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Consider another incident in Lord o
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35). However, as I have tried to sh
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Part Two - The State of Nature The
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maintaining the fire. The fire goes
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the boys, they discard their identi
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Locke, 2002, p. 3 Accordingly, natu
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Stage three is the state of nature.
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Describing the background to his no
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longer calmer periods - which he ca
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As time distanced the boys from the
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In response to the new paradigm, th
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The public debate facilitates the e
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Consider the enactment of English p
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sun. And so on. We do not say, at t
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Theoretical methods for fixing laws
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Consider the recent enactment of th
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Chapter 3 - Bad Faith Values-based
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In Being and Nothingness Sartre int
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What makes bad faith bad? If we per
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How can we believe by bad faith in
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Good faith A further implication of
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mother.” (Warnock, 1978, p. 117).
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The Milgram experiments and bad fai
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The agentic state From his findings
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Self-deception For Sartre, self-dec
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to continue to follow the orders of
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state in which soldiers become inst
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emain unanswered and important aspe
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Conscious awareness However success
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Objectification. Intention Deceptio
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Case study 2 - the American soldier
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of this kind, unfathomable situatio
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Good faith Gillman’s research dem
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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
Page 159 and 160: subjectivity and denying the inesca
Page 161 and 162: uncertainty about the provision of
Page 163 and 164: In 3 instances 12 it was establishe
Page 165 and 166: childbirth, child-rearing, and that
Page 167 and 168: More recent research supports Saber
Page 169 and 170: doctor reported that C “did under
Page 171 and 172: assertion that traditional societie
Page 173 and 174: Re M appears to be the only case in
Page 175 and 176: irregular periods. The mother descr
Page 177 and 178: hysterectomy for a 29 year old woma
Page 179 and 180: Three cases adopted a predominantly
Page 181 and 182: A cluster of cases from Australia f
Page 183 and 184: equires a ceasarian section deliver
Page 185 and 186: (1) In determining for the purposes
Page 187 and 188: clinical judgement values are objec
Page 189 and 190: Conclusion and recommendations An a
Page 191 and 192: allocation of scarce health resourc
Page 193: Values transparency in best interes
Page 197 and 198: Epilogue I write this epilogue in r
Page 199 and 200: of high quality research’ at the
Page 201 and 202: Visualising our personal values on
Page 203 and 204: Rational fields Rational fields and
Page 205 and 206: Type 5: ‘Filing reality - classif
Page 207 and 208: Within the rational field is not on
Page 209 and 210: conclusion about value, about what
Page 211 and 212: A similar picture emerges from the
Page 213 and 214: The present appeal raises moral, le
Page 215 and 216: expressing differing emotional resp
Page 217 and 218: Environment Doctor knows best Relat
Page 219 and 220: Statute The Code of Health and Disa
Page 221 and 222: Re S (Medical Treatment; Adult Ster
Page 223 and 224: Biegler, P. (2002). Should patients
Page 225 and 226: Eastman, N., & Peay, J. (1999). Law
Page 227 and 228: Henaghan, M. (2002). Human rights a
Page 229 and 230: Laurie, G. T., & Mason, J. K. (2000
Page 231 and 232: Myser, C. (1994). A philolosophical
Page 233 and 234: Singer, P. (2001). Writings on an E
Page 235 and 236: Case reference Re H [1993] NZFLR LE
Page 237 and 238: Re S (Medical Treatment; Adult Ster
Page 239 and 240: In re B (A Minor) Wardship: Sterili
Page 241 and 242: Case reference Re X (Sterilisation:
Page 243 and 244: Re Marion (No 2) [1992] 17 FamLR Au
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Re S (Adult Patient: Sterilisation)
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