One of the most controversial elements of the U.S. Bill of Rights is the Cruel and Unusual Punishments Clause of the Eighth Amendment which states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (U.S. Const. Amdt. 8). Whether the use of the death penalty is an instance of cruel and unusual punishment has been the subject of sustained and intense debate given that there have been over 16,000 legal executions in the United States from 1700 until 2019 (TIME). Continue reading
Category Archives: Legal Philosophy
The Historical Development of the Evolving Standards of Decency (ESD) Doctrine in the U.S. Supreme Court
The largest disparity between position in the social hierarchy of Western medicine is between the patient and the physician. The patient/physician interaction is critically shaped by the rigidity of the social hierarchy. In describing the nature of the patient/physician relationship, Parsons lays out four distinct features that establish and maintain a particular form of the subordinate/superior relationship, most commonly expressed in terms of power/authority.
Before going further, an extremely important distinction must be drawn. Power and authority are, categorically, not the same things. For instance, in at least one form, the legitimization of authority allows one to exercise more power. Authority therefore enhances elements like one’s reputation or one’s social standing. Authority, also, could be viewed as an entirely different form of power. Whereas power may stipulate the explicit use of force/coercion (i.e. violence), authority may stipulate a softer version of that with similar end results but without the use of force/coercion. Instead, psychological mechanisms and tools may be utilized. I don’t want to go too far down the rabbit hole on this, but suffice it to say they are conceptually and logically distinct and should be kept that way for current purposes.
In this case, the physician is bestowed with authority through his/her extensive knowledge of the human body, coupled with the recognition of the former by the social structure known as medical school. The authority of the physician allows him/her to suggest, recommend, and, in some cases, command the patient to complete or permit certain actions.
The history of polygamy is a rich and varied one. Dating back to 3000 BCE and continuing today, spanning the world from Asia to Europe, from Africa and the Middle East to North America. The ancient patriarchs of the Hebrews such as Abraham, Esau, and Jacob were the heads of polygamous households. Similarly, under Shari’ah Law in Islam, a man is allowed to marry up to four women so long as he treats them in an egalitarian manner. Even the father of early modern Protestantism, Martin Luther, admitted that Christianity and polygamy were not mutually exclusive ideals, noting that the practice did not contradict anything in the Holy Bible (Swisher 3-4). As a result, it is fair to say that there is a globally attested and historical tradition of polygamy and that it has been defended over time as a viable form of marriage.
In Western medicine, just as in law, religion, and the military, there is a single group located above all others at the top of this social institution. This group is an authoritative minority endowed with certain privileges/rights/duties/obligations and, subsequently, they are required to fulfill certain roles. This group is, of course, composed of physicians.
A Statement of Values — Proponents versus Opponents
Collectively, the proponents of physician assisted suicide value personal autonomy and responsibility, the quality of life, and compassion towards others. Proponents of physician assisted suicide feel that by being allowed to choose between life and death as a personal and medical decision, patients are able to exercise personal autonomy, a freedom that they take to be fundamental to the nature of humanity. This autonomy ties directly into their perceptions about quality of life, in that some view life as undesirable or lackluster if they are not able to enjoy activities, events, and relationships that they previously did due to terminal or incurable medical conditions. They do not view life as inherently valuable and worth living, but derive life’s value from its pragmatic and functional elements. When the level and intensity of physical and mental suffering crosses a certain threshold, these proponents value the actions of those who will show compassion and act in accordance with their final wishes. Thus, proponents of physician assisted suicide feel obligated to protect the personal rights of patients as well as to ensure that they are being treated with compassion to alleviate their pain and suffering. Any events or legislation that interfere with those conditions are intolerable.
What I think I find most problematic about Conscientious Objection, or at least what lays the groundwork of my distaste for it, is its unique context. To put it more straightforwardly, Conscientious Objection can, but does not always, involve genuine cases of life and death.
Rather than considering one-off examples, let’s try a cluster approach.
i. A woman is in dire medical need of an abortion; if she does not receive an abortion, she will inevitably die during childbirth. If she lives, the fetus will die and vice versa.
ii. A woman is in significant medical need of an abortion; if she does not receive an abortion, she will inevitably suffer permanent physiological damage. If the fetus lives, she will live but in immense pain for the rest of her life. If she lives (i.e. has an abortion), the fetus will die.
iii. A woman is not in any medical need of an abortion; she elects to abort the fetus within the federally and state regulated timelines allowed to do so.
Introduction and Synopsis
Recently, I read this book on a whim. I was at a local bookstore and stopped to give it a quick glance; the first few pages interested me enough that I bought it. Looking back, I am honestly glad that I did. While some of Fromm’s pleadings have lost their urgency (e.g. the looming threat of nuclear war with the USSR (as it was known at that time)), he ultimately provides an insightful, scaffolded analysis about the concept of disobedience itself. Moreover, Fromm weaves together several other explanatory threads to properly contextualize disobedience and both its value and proper usage in contemporary society, using this as a vehicle to establish his political worldview known as humanistic socialism.
An Analysis of the Obama Administration’s Use of Combat Drone Strikes from Classical Realist and Liberal Perspectives
The drone strikes carried out in various locations in the Middle East under the authority of President Obama and his administration have sparked public outrage due to numerous leaked reports of innocent civilian casualties combined with immense collateral damage to the countries in which the drone strikes had been executed.
What is remarkable from an academic perspective is that it represents a classic example of the quintessential differences between a realist and liberal perspective on international law. Within this context, there are certain aspects of each theoretical approach to international relations that are extremely pertinent to the discussion of drone attacks as a case study.
Viewing realism and liberalism as antitheses, the former (i.) focuses its attention on the state as the primary actor in international relations, (ii.) values security over freedom in the international system, and (iii.) prefers power to interdependence with regard to relationships with other countries. Meanwhile classical liberalism (i.) places an emphasis on the individual (whether alone or as part of a larger governmental or non-governmental organization), (ii.) generally denounces unilateral action, and (iii.) stresses interdependence through cooperation for solving collective international problems. Continue reading →