Category Archives: Legal Philosophy

A Summary (of the first portion) of “Frontiers of Justice” by M. Nussbaum

     Martha Nussbaum sets out in “Frontiers of Justice” to challenge the Social Contract tradition, the current paradigm in political philosophy insofar as it relates to theories of justice, by defending her own approach which she refers to as the “capabilities approach.” She begins by describing the historical development of the Social Contract tradition, focusing on certain writings of philosophers such as Hobbes, Locke, Hume, Kant, and most recently, John Rawls.

After briefly describing how the Social Contract tradition has come to exist in its contemporary form following the influences of John Rawls, Nussbaum levels some very strong criticisms against this philosophical tradition. In particular Nussbaum focuses on how proponents of the Social Contract tradition have (not) responded to the needs and interests of disabled individuals, the global community/nationality, and non-human species.

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Criticisms of the Use of the ESD Doctrine in Kennedy v. Louisiana (2008)

The most commonly raised criticism against the national consensus test of the ESD doctrine is that it constitutes an ongoing saga of judicial activism. Judicial activism occurs when a judge/justice upholds his or her own political, legal, religious, economic, or other beliefs contra society, thereby substituting the objectivity of existing laws for the subjectivity of personal preferences. Some may not feel that judicial activism is all that subversive. But judicial activism not only forces the judge/justice’s will on the people, but also it can greatly limit the legislative branch’s ability to function. The blurring of judicial and legislative lines can result in political stalemate, voter apathy, and a general distrust of government. Kimberly Bliss comments that under a democratic system “legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people” since the former has more contact with the people and has, in theory, been elected by the voters (1334).

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Kennedy v. Louisiana (2008) – US Case Law Overview

In 2008, proponents of capital punishment for rape believed they had a winning case that would allow the use of capital punishment for some nonlethal crimes. Patrick O’Neal Kennedy from Harvey, Louisiana was sentenced to death after he was convicted of raping his eight-year-old stepdaughter. The rape was uncommonly brutal in its severity. The injuries that Kennedy’s stepdaughter sustained from the repeated rapes required emergency surgery. Kennedy initially maintained that the battery was committed by two neighborhood boys. He even refused to plead guilty when a settlement was offered to spare him from a death sentence. In 2003, Kennedy was convicted and sentenced under a 1995 Louisiana law that allowed the death penalty for the rape of a child under the age of 12. The Court did not share the same optimism that proponents of capital punishment did. The majority, relying on the precedent of the ESD Doctrine, overturned the death penalty since the rape, though it did involve a child, did not result in the death of the victim (544 U.S. 407).

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The Historical Development of the Evolving Standards of Decency (ESD) Doctrine in the U.S. Supreme Court

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

Power and Authority in the Patient/Physician Relationship in Western Medicine

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.

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A Historical Primer on Polygamous Marriage

    45b Capture

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.

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A Glance at the Social Structure of Western Medicine

     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.

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Moral Reasoning in the Context of Physician Assisted Suicide (PAS)

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.

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Conscientious Objection: Some Thoughts

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.

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An Analysis of the Obama Administration’s Use of Combat Drone Strikes from Classical Realist and Liberal Perspectives

Introduction

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