One of the most important and controversial concepts that preoccupies legal and moral philosophers is that of a ‘right’. To have a right raises the distinction between what a right is, on the one hand, and what rights people actually have or should have, on the other. This is the difference between a moral and a legal right that is a recurring theme in discussions of this subject. This chapter examines the concept of rights, various theories and types of rights (including human and animal rights), and concludes with a brief exercise in ‘applied jurisprudence’ that attempts to show how apparently competing approaches to a crucial democratic right may be resolved.
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This chapter discusses various aspects of ethics and medical law. It begins with a definition of medical law. It then covers the nature of illness, the scope of medicine, the sociological impact of being ill, UK health statistics, and general ethical principles. This is followed by discussions of the notion of rights; patients’ obligations; principlism; hermeneutics; casuistry; feminist medical ethics; care ethics; virtue ethics; and communitarian ethics. It also explains the role of theology, relativism, and pragmatism in medical ethics. The chapter also explores the links between ethics and law. It cannot be assumed that because something is unethical it must be unlawful, nor that everything unlawful is necessarily unethical.
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This chapter discusses various aspects of ethics and medical law. It begins with a definition of medical law. It then covers the nature of illness, the scope of medicine, the sociological impact of being ill, UK health statistics, and general ethical principles. This is followed by discussions of the notion of rights; patients’ obligations; principlism; hermeneutics; casuistry; feminist medical ethics; care ethics; virtue ethics; and communitarian ethics. It also explains the role of theology, relativism, and pragmatism in medical ethics. The chapter also explores the links between ethics and law. It cannot be assumed that because something is unethical it must be unlawful, nor that everything unlawful is necessarily unethical.
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A. M. Farrell and E. S. Dove
This chapter is the first of two in this textbook that focus on bioethics. This chapter introduces the aims, scope, and methods of the applied field of bioethics, and of the wider discipline of ethics in which it is located. It explains why (bio)ethical analysis is an essential companion to legal scholarship when it comes thinking about ‘what should be done’ in health and medical contexts. This chapter takes the first steps in equipping the reader with the tools to engage in bioethical debate. It indicates the kinds of language used in these debates. And it emphasises the importance of reason-giving and conceptual clarity. Expanding on the theme of reason-giving, it explores some the places we might look for relevant and persuasive grounds to support our ethical claims. In doing so it highlights important distinctions between ethical claims, on one hand, and empirical observations, personal preferences and intuitions, community norms, and popular opinions, on the other. It looks briefly at the role of principles in bioethics, and the value of identifying context-responsive principles and priorities rather than relying on prescribed frameworks. It closes by introducing the idea of ‘interests’ and suggesting that identifying whose interests are affected, and how, are important steps in developing and defending our responses to ethical dilemmas.
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Marie-Bénédicte Dembour
This chapter reviews six critiques of human rights, deriving from realist, utilitarian, Marxist, particularist (cultural relativist), feminist, and post-colonial theoretical perspectives. The first three critiques emerged in reaction to the (successive) French Declarations of the Rights of Man of the late eighteenth century; the last three were fully developed in reaction to the International Bill of Rights enacted after the Second World War. Each of these critiques reveals a gap between what human rights claim to be or achieve, on the one hand, and what human rights are or do in practice, on the other.
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Marie-Bénédicte Dembour
This chapter reviews six critiques of human rights, deriving from realist, utilitarian, Marxist, particularist (cultural relativist), feminist, and post-colonial theoretical perspectives. The first three critiques emerged in reaction to the (successive) French Declarations of the Rights of Man of the late eighteenth century; the last three were fully developed in reaction to the International Bill of Rights enacted after the Second World War. Each of these critiques reveals a gap between what human rights claim to be or achieve, on the one hand, and what human rights are or do in practice, on the other.
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This chapter examines the nature and diversity of human rights, rather than any particular right. It looks at issues such as the universality, interdependence, and indivisibility of rights. It points to the issue of justiciability and emphasizes the obligation of States in both its negative, as well as its positive, dimension. The chapter examines the role of derogations and reservations to human rights treaties, as well as cardinal principles in such treaties, namely, the margin of appreciation and the scope of application. Finally, the chapter examines in some detail the key aspects and distinctions in international humanitarian law, such as the distinction and legal consequences between combatants and civilians and others.
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David Nelken
This much revised chapter on studying criminal justice comparatively begins by asking why we do such research and what approaches we can draw on. It considers the goals of studying comparative criminal justice and the contributions that are made by the positivist search for explaining variation, the interpretive effort to grasp meaning, and the legal approach that gives full attention to what legal actors say and think they are doing. It goes on to examine problems in identifying relevant similarities and differences, comparing like with like, and bringing new places into perspective. Following this, it examines the challenges that increasing transnational and global links between nation states pose to the field. Last, but not least, it discusses different strategies for gathering data and how this needs to change with the growth of transnational criminal justice.
