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JUDICIAL DECISION MAKING in CASES with an INHERENTLY ETHICAL CONTENT by CLARK ASHLEY HOBSON

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JUDICIAL DECISION MAKING in CASES with an INHERENTLY ETHICAL CONTENT by CLARK ASHLEY HOBSON INTERPRETIVISM AND THE FOUR PRINCIPLES APPROACH TO BIOMEDICAL ETHICS: JUDICIAL DECISION MAKING IN CASES WITH AN INHERENTLY ETHICAL CONTENT By CLARK ASHLEY HOBSON A thesis submitted to The University of Birmingham For the degree of DOCTOR OF PHILOSOPHY Birmingham Law School University of Birmingham September 2014 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. Abstract Judges are often reluctant to interact with medical ethics when deciding cases with an inherently ethical content. They sometimes even transfer decision-making responsibilities to medical ethics groups. At times this unwillingness is based on the presumption that medical ethics will be able to perform an effective regulatory function. The problem is there is a wide range of ethical discourse, both official and unofficial; so much it can cancel itself out. Therefore, as a regulatory tool for the medical profession, medical ethics is insufficient for the job. Judges, on the other hand, could arbitrate between competing ethical conclusions. Indeed, there is a strong argument they should. This thesis addresses this timely and complex issue. Judges need to be willing and able to rely on the soundness of their own moral convictions to recognise and deal appropriately with the inherent ethical content in certain cases. In order to do this, they need a decision-making framework that recognises the ethical nature of judicial decision-making, so as to provide judges with confidence in applying moral principles and medical ethics. This thesis will provide such an integrated framework. i To Pop. Thank you for your sound pieces of advice regarding the thesis itself (“Why take so long to say everything?!”), and your encouraging words to me on this long journey (“When are you going to get a proper job?!”). I would not be the person I am today if it was not for you. And to my family. Thank you for always being there for me. ii Acknowledgments First and foremost, I would like to thank Dr Stephen Smith, my supervisor. Not only have I benefitted from his expert guidance, his clarity of thought and expression, and his infinite amounts of patience, but I have also gained a good friend. Thank you for making this experience so enjoyable until the last. I would also like to thank the examiners of my conversion document, Professor Martin Borowski, Universität Heidlberg, and Dr Mary Neal, University of Strathclyde, not just for their helpful comments on the conversion document itself, but for their valuable remarks about how my thesis might be developed and shaped. Likewise, I would like to thank Professor Margaret Somerville and Professor James Childress for allowing me to study under their tutelage at McGill University and the University of Virginia. Thank you for expanding my horizons, both culturally and ethically, far more than reading any number of books could do. Finally, I want to thank all my colleagues at Birmingham Law School for making it such a wonderful place to study, learn and work. In particular, I wish to thank Dr Gavin Byrne for always being willing to discuss ideas that are in development, and that I may not have grasped the full import of. Time is always limited, so thank you for sparing much of it for me. I would also like to thank Martin George for all his help in developing me as a teacher, and for showing me that eventually, land law is a subject that can provide some light relief. iii Table of Contents Table of cases ........................................................................................................................... ix Table of legislation .................................................................................................................. xi Chapter 1 .................................................................................................................................. 1 1. Introduction ............................................................................................................................ 1 2. Miola’s analysis in Symbiotic ................................................................................................. 1 3. Specific case analysis ............................................................................................................. 6 3.1. Sidaway ...................................................................................................................... 9 3.1.1. (Protection from) paternalism .......................................................................... 10 3.1.2. Relation of doctor and patient .......................................................................... 12 3.1.3. Recognition (and prioritisation) of respect for autonomy ............................... 14 3.1.4. Misidentification of the nature of arguments: ethical and technical ................ 16 3.1.5. Overall case conclusion ................................................................................... 20 3.2. Chester ..................................................................................................................... 21 3.2.1. Recognition (and prioritisation) of respect for autonomy ............................... 22 3.2.2. Misidentification of the nature of arguments: principle and policy ................. 30 3.3. General Conclusion .................................................................................................. 33 4. Developments since Symbiotic ............................................................................................. 34 4.1. Case Law .................................................................................................................. 35 5. How this thesis complements Miola’s work ........................................................................ 43 6. Conclusion ............................................................................................................................ 46 iv Chapter 2 ................................................................................................................................ 48 1. Introduction ......................................................................................................................... 48 2. Charting the history of modest Incorporationism .............................................................. 55 2.1. One initial criticism .................................................................................................. 58 3. Modest Incorporationism’s characterisation of laws, legal norms and moral principles .... 62 3.1. Peremptoriness ......................................................................................................... 63 3.2. Provenance conditions .............................................................................................. 66 3.3. Applicability-conditions ........................................................................................... 70 3.4. Overall conclusion .................................................................................................... 74 4. Modest Incorporationism: further problems with Kramer’s own admissions .................... 76 5. One right distinction? .......................................................................................................... 83 6. Conclusion ........................................................................................................................... 91 Chapter 3 ................................................................................................................................ 94 1. Introduction: is law best seen through integrity or justice? ................................................ 94 2. Understanding integrity through coherence ........................................................................ 98 2.1. What does coherence require? .................................................................................. 98 2.1.1. The essentials of coherentism and a conception of coherence itself ............... 98 2.1.1.1. Element 1: An asymmetrical and linear order of epistemic priority of justification versus a holistic, symmetrical and nonlinear relation of justification ............................................................................................... 99 2.1.1.2. Element 2: The conception of the concept of coherence ..................... 99 v 2.1.2. Coherence, truth, justification and Dworkin .................................................. 103 2.2. Integrity understood through coherence: does it fit? .............................................. 105 2.2.1. Constructive interpretation............................................................................. 107 2.2.2. Checkerboard solutions .................................................................................. 111 2.2.3. Associative obligations .................................................................................. 116 2.2.4. Overall conclusion ........................................................................................
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