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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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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