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of my family over the lives of the rats. I prefer to have my house rat-free than to compromise the safety of loved ones. The argument that defining a value as a preference is too simplistic does not hold up to scrutiny. Ultimately, however strongly held the value, and how seemingly significant and highly regarded it is, it is still an expression of preference. I value world peace; I prefer that all people in the world lived in harmony and without war. Conversely, what may appear as a matter of simple preference may be an expression of significant and deeply held values. I am going to buy the apple instead of the pear. I prefer the taste of the apple, but I also know that the apple has been grown organically in my home town. I prefer to buy the apple because I value locally grown organic produce and the support this gives to the local economy. Perry (1954) was also concerned with finding an all encompassing definition of value. Perry recognised and emphasised that the realm of values and valuing constituted “what may properly be given the name of ‘civilization’, that total human adventure whose rising and declining fortunes give significance to human life upon this planet” (p. 14). He argued for an understanding of values primarily in terms of interest. “A thing - anything - has value or is valuable, in the original and generic sense, when it is the object of interest - any interest. Of whatever is object of interest is ipso facto valuable.” (Perry, 1954). Given the many different potential applications and meanings of the word ‘interest’, however, this definition may increase confusion rather than clarify. For example, interest may refer to your leisure pursuits, your bank balance, your level of curiosity, what you think is advantageous to you or others. Perry’s use of the word ‘interest’ conveys much the same meaning as when other theorists have used the word ‘preference’. Perry used the word ‘interest’ to point to attitudes or having the characteristic of “being for or against something.” (p. 6-7), and categorised acts such as “liking – disliking” and “desiring – avoiding” as interests. These acts are essentially expressions of preference. A considerable advantage of defining values as expressions of preference is that it transcends all potential applications of values and value theory. For a theory to be accepted and endure it must be commonly understandable and applicable. Values and value theory has expressly informed a variety of fields such as aesthetics, ethics, 24
economics and sociology. A different understanding of a concept across disciplines potentially causes confusion and incorrectly creates the impression that values and valuation have different roles in different spheres of life. The role of values is not confined to questions of right and wrong, or of what is good and bad, or of aesthetics. Values and valuing are integral to all areas of human reasoning. As Rokeach explains: Persons are not detached or indifferent to the world; they do not stop with a sheerly factual view of their experience. Explicitly or implicitly they are continually regarding things as good or bad, pleasant or unpleasant, beautiful or ugly, appropriate or inappropriate, true or false, virtues or vices. Where do values come from? Rokeach, 1979, p. 16. There have been a number of theories regarding the origin of values. Values have been attributed to human feelings and emotions (Brentano, cited Jacquette, 2004; Damasio, 1994; Seedhouse, 2005; Stevenson, 1944, cited Edel, 1953), desire (Ehrenfels, cited Rescher, 1982), society and culture (Kohlberg, 1975; Raz, 2003; Rokeach, 1979) and life experience (Hutcheon, 1972). Some theorists acknowledge a complex mix of a variety of sources (Hutcheon, 1972; Magendanz, 2003; Rokeach, 1979). Brentano saw the basis of valuation in emotions, in particular the contrast between favourable emotions (such as loving and liking) and negative emotions (such as hating and disliking) (cited Rescher, 1982, p. 51). As human beings, we all experience times when our emotions overtly influence the decisions we make, for example, in the form of sentimental attachment. It is easy to justify keeping an item which is effectively worthless, but for the sentimental, emotional attachment which reminds us of a happy time, or a loved one. The box of items in the loft which have no monetary value and serve no purpose (and are rarely even looked at) are not disposed of because of the emotional and sentimental value. Brentano, however, located value judgements in the objective realm, and thereby argued that value judgements could be assessed as being either correct or incorrect. To borrow the example from Baumgartner & Pasquerella (2004), two friends examine a striking piece of art work. One friend finds the painting breathtakingly beautiful. The other disagrees and experiences displeasure at viewing the 25
Page 1 and 2: A Philosophical Critique of the Bes
Page 3 and 4: Legal principle ...................
Page 5 and 6: Legal process .....................
Page 7 and 8: Attestation of Authorship “I here
Page 9 and 10: Dedication To all the people who ha
Page 11 and 12: Introduction This thesis is a philo
Page 13 and 14: • Detention of an adult with auti
Page 15 and 16: compatible donor. Y appeared to be
Page 17 and 18: grounds. The value judgements which
Page 19 and 20: Cases concerning sterilisation of w
Page 21 and 22: esearch, Mercer identified the bias
Page 23 and 24: the judge conclude that the applica
Page 25 and 26: Chapter 1 - The objectivist myth Th
Page 27 and 28: purely empirically and scientifical
Page 29 and 30: of values-based law is based on the
Page 31 and 32: knowledge, and suggests that if kno
Page 33: Aren’t some values fundamental? A
Page 37 and 38: Some of Damasio’s everyday exampl
Page 39 and 40: longer do so? Or because he has no-
Page 41 and 42: Hume’s psychology of the passions
Page 43 and 44: authority is refuted by Kohlberg’
Page 45 and 46: Societies and cultures Biological f
Page 47 and 48: cases by means of precedent; “by
Page 49 and 50: throughout the world. Sir Meadow ac
Page 51 and 52: paradigm, legal methods are employe
Page 53 and 54: Precedent It has been argued that w
Page 55 and 56: 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
Page 79 and 80: 35). However, as I have tried to sh
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
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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
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longer calmer periods - which he ca
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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
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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
Page 109 and 110:
Chapter 3 - Bad Faith Values-based
Page 111 and 112:
In Being and Nothingness Sartre int
Page 113 and 114:
What makes bad faith bad? If we per
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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).
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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
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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
Page 221 and 222:
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
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
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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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