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Wilkinson, M. (May 14, 2004). I was only following orders: England. Retrieved March 20, 2006, from http://www.theage.com.au/articles/ Wilkinson, M. (May 14, 2004b). Photos show dead Iraqis, torture and rape. Retrieved 20th March, 2006, from http://www.theage.com.au/articles/ Williams, B. (1973). A Critique of Utilitarianism. In J. J. C. Smart & B. Williams, Utilitarianism. For and Against. London: Cambridge University Press. Wolffsohn, J. S., Cochrane, A. L., & Watt, N. A. (2000). Design of the low vision quality-of-life questionnaire (LVQOL) and measuring the outcome of lowvision rehabilitation. The British Journal of Ophthalmology, 84(9), 1035-1040. Wollf, J. (1996). An Introduction to Political Philosophy. Oxford: Oxford University Press. Women With Disabilities Australia. (1991). On The Record – A Report on the 1990 STAR conference on Sterilisation: ‘My Body, My Mind, My Choice.’ Retrieved August 18, 2004, from www.wwda.org.au/record.htm Worthington, R. (2002). Clinical issues on consent: some philosophical concerns. Journal of Medical Ethics, 28, 377-380. www.bbc.co.uk. (No Date). Poll Tax 1990. Retrieved January 3, 2006, from www.bbc.co.uk/history/timelines www.bbc.co.uk. (5 November 2005a). Supporters and opponents of fox hunting have both claimed success after the first day of the new season - the first since a ban in England and Wales. Retrieved April 15, 2006, from http://news.bbc.co.uk/1/hi/uk/4407904.stm www.bbc.co.uk.(27 December 2005b). Hunting ban 'needs tightening up’. Retrieved January 29, 2006, from http://news.bbc.co.uk/1/hi/uk/4561952.stm www.brothersjudd.com. (No Date). Modern Library Top 100 Novels of the 20th Century (41). Lord of the Flies 1954. Retrieved April 12, 2006, from http://www.brothersjudd.com/index.cfm/fuseact+ion/reviews.detail/book_id/90 2/Lord%20of%20the%20.htm Yablon. (1987). Law and Metaphysics. Yale Law Journal, 96, 613-636. Zuckert, M. (1995). Hobbes, Locke, and the Problem of the Rule of Law. In C. Finkelstein (Ed.) (2005) Hobbes on Law. Dartmouth: Ashgate. 224
Case reference Re H [1993] NZFLR LEXIS 76 New Zealand P v P [1994] 120 ALR 545 (Aust H Ct) Australia Re Eve [1986] 31 DLR (4 th )1 (Can SC) Canada Appendix A: Table of sterilisation cases (arranged in order of jurisdiction and then chronologically). Case brought by Facts of Case / age of person Mother Pregnant by unknown; seeking abortion and sterilisation. 38 Parents To cease menstruation and permanently prevented from becoming pregnant. 16 Outcome Persuading factors in outcome Sterilisation declined; not least restrictive alternative. Abortion; mother given authority to decide under PPPR Act. Court allowed parents to consent to sterilisation on child’s behalf. Mother To prevent pregnancy. Sterilisation declined; 24 described as nontherapeutic. ‘The present case presents circumstances far less extreme.’ ‘Sterilisation of an intellectually disabled person should not be permitted unless there is no other reasonable alternative.’ Very little facts about the 16 year old. Mainly discussion about law. Persuading factors – precedent. Only reasons given for sterilisation; to preclude pregnancy and prevent menstruation. Court did not have authority to allow sterilisation for solely contraceptive purposes. Used research to establish effects of sterilisation. Human Rights. Special Features Precedent Already pregnant from sexual abuse – sought sterilisation and abortion. Close technical legal examination of Australian statute with regard to allowing parents to consent to sterilisation of adult child. Firmly rejected best interests test. Considered child bearing rights. Rejected courts’ ability to allow sterilisation for social need. In Re B [1988] Circumstances for allowing sterilisation must be extreme. In Re X [1991] Case with extreme circumstances and sterilisation necessary by product of surgery for a different purpose. Re Eve [1986] All arguments against sterilisation accepted. Re Marion [1990] examined jurisdiction of the court. Re Marion [1990] re: scope of the law to allow parents to consent to sterilisation on behalf of 16 year old daughter. Re D [1976] sterilisation amounts to deprivation of the basic human right to reproduce. Re P [1981] authorised abortion in P’s BI. Re K [1985] (Can) allowed therapeutic hysterectomy. Buck v Bell [1927] eugenics. 225
Page 1 and 2:
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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the question at hand. The question
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opportunities for discussion and de
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situations we meet in our every day
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I contend that because we seek cert
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For years, health professionals hav
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The sterilisation was regarded as u
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the sterilisation procedure would b
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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
Page 183 and 184: equires a ceasarian section deliver
Page 185 and 186: (1) In determining for the purposes
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Page 189 and 190: Conclusion and recommendations An a
Page 191 and 192: allocation of scarce health resourc
Page 193 and 194: Values transparency in best interes
Page 195 and 196: What if… judges were able to expl
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: Singer, P. (2001). Writings on an E
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
Page 245 and 246: Re S (Adult Patient: Sterilisation)
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