David Gurnham

Bioethics as science-fiction: making sense of Habermas's 'The future of human nature'

There must be few philosophical projects more serious than Jurgen Habermas’s lifelong effort to realize the lofty universalist ambitions of the Enlightenment in his communicative theory of rational discourse and deliberative democracy.

Criminalising contagion: ethical, legal and clinical challenges of prosecuting the spread of disease and sexually transmitted infections

It gives me great pleasure to introduce this special collection of papers on the theme of the criminalisation of infection and disease. The four articles selected here for Sexually Transmitted Infections , which I have had the privilege of editing in collaboration with Professor Jackie Cassell, form part of a larger response across three BMJ Group journals involving also the Journal of Medical Ethics and Medical Humanities , in which similar themed sections will appear in December. The collection represents part of a wider project that brings together healthcare professionals and academic scholars in the fields of public health, medical law and ethics, criminal law and criminal justice, for a series of seminars currently ongoing and funded by the Economic and Social Research Council, in which readers of this journal are invited to participate.1 Something that the articles collected here may be taken to suggest is that, while the criminalisation of STIs is becoming increasingly accepted on the level of national policy, it is viewed by many critical commentators with concern if not outright rejection. Why is this? Arguably what makes the criminalisation of STIs politically attractive to governments, in the context of HIV/AIDS at least, is that there remains some considerable ignorance about transmissibility and treatability.2 ,3 Questions as to just how risky it is to be exposed to STIs, and who should bear responsibility, must be crucial to the larger issue of whether and how to …

What role should criminal justice play in the fight against STIs

Can criminal justice make a positive contribution to the way states respond to sexually transmitted infections (STIs)? Sections 18 and 20 of the Offences Against the Person Act 1861 make it an offence punishable by imprisonment to inflict recklessly or cause intentionally any sort of grievous bodily harm. If particular STIs (such as herpes or HIV, the two infections to have attracted the attention of English criminal prosecutors to date) are harms to be taken at least as seriously as a broken leg then it makes sense to a criminal lawyer to treat both its intentional and ‘reckless’ transmission as a criminal offence.1 2 It comes, therefore, as something of a surprise to some lawyers that so much of the reaction amongst healthcare practitioners and public health policy-makers to criminalisation has been fiercely negative. It is beyond argument that criminal justice and public health have very different aims and admit of different measures of success, authority and proof. Whether these differences are so great as to be unbridgeable remains to be seen. A fundamental point over which criminal justice and healthcare professionals disagree is whether punishing non-intentional transmission is ever right in principle. That wrongdoers do not get away unpunished and that the state has …

Legal Authority and Savagery in Judicial Rhetoric: Sexual Violence and the Criminal Courts

This article explores narrative devices in legal rhetoric, and the use of these devices for asserting the authority to distinguish lawful from unlawful inflictions of bodily harm. The argument made here is that the moral language adopted by judges in criminal appeal judgments on risky sexual and/or violent consensual acts embraces a set of interconnecting arratives otherwise observed in literature, and relating to gender, sexuality and race. I try to show how the reading of these legal cases is enriched by identifying these narratives, locating them as rhetorical strategies and reflecting on their uses in judicial decision-making. In particular, I argue that in the case-law explored here, these interconnected narratives are deployed in order to assert law?s dominance over an imagined ?savage? other. Through this ongoing repudiation of savagery the distinctions between normative and nonnormative, violent and non-violent, lawful and unlawful are constructed.

“Reader, I Detained Him Under the Mental Health Act”: A Literary Response to Professor Fennell’s Best Interests and Treatment for Mental Disorder

This is a response to Professor Fennells paper on the recent influence and impact of the best interests test on the treatment of patients detained under the Mental Health Act 1983 (MHA) for mental disorder. I discuss two points of general ethical significance raised by Professor Fennell. Firstly, I consider his argument on the breadth of the best interests test, incorporating as it does factors considerably wider than those of medical justifications and the risk of harm. Secondly, I discuss his contention that the apparent permeability of the line between the interests of the patient and the interests of society is something to be concerned about in itself. Since the overarching theme of the paper is the proper place of social and cultural values, my reponse considers the implications of Fennells arguments in the light of Charlotte Brontës novel ‘Jane Eyre’, which, through the character of Bertha Mason (the infamous ‘mad woman in the attic’) provides a provocative study of the relationship between mental disorder and society.

Principles, progress and harm in the Guatemala Syphilis Study

The discovery of Dr Cutlers studies in Guatemala is significant for a number of reasons, of which I would like to highlight just two. Historically, the documents represent important evidence about the development of the concepts of bodily integrity and rights. The article asks whether we are entitled to judge practices that took place over 60 years ago: were the norms not different then? Should we not take account of the fact that in those days a different culture existed, with different expectations …

Special 20th anniversary issue of Medical Law International: ‘Best interests in an age of human rights’

This special issue to celebrate the 20th anniversary of Medical Law International seeks to address the challenges posed by two core values of medical law, the relationship between which is at best uneasy and at times arguably one of the incompatibilities. When is it appropriate for medical practitioners to treat according to their professional view of a patient’s ‘best interests’, and when must this give way to the ‘rights’ of patients or their families to dictate a different course? In England and Wales, 2013 also marks 20 years since the landmark judgment of Re C (adult: refusal of treatment) [1994] 1 All ER 819, which established that a competent patient’s right to refuse treatment must prevail over clinical views of their best interests, and Airedale NHS Trust v Bland [1993] 1 All ER 831, establishing that a permanently vegetative patient may be allowed to die as continued life could be judged no longer to be in his ‘best interests’. Both of these judgments have impacted on English law in ways that have only intensified since the enactment of the Human Right Act 1998 and the incorporation of the European Convention on Human Rights into domestic law. For example, should mature minors enjoy the same to determine their own ‘interests’ as adults?; how is the enforceability of a right to refuse lifesaving treatment to be reconciled with criminal laws that prohibit apparently unwise or potentially harmful behaviours notwithstanding the ‘victim’s’ consent?; what is the precise relationship between the lawfulness of withdrawing life-sustaining treatment and

Parents, Children and the Porous Boundaries of the Sexual Family in Law and Popular Culture

This article focuses on a perceived ideological overlap between popular cultural and judicial treatments of sex and conjugality that contributes to a discursive construction of parenthood and parenting. The author perceives that in both legal and popular cultural texts, there is a sense in which notions of ‘natural’ childhood are discursively constituted as being put at risk by those who reproduce outside of dominant sexual norms, and that signs of normative sexuality (typically in the form of heterosexual coupling) may be treated as a sign of safety. These ideas are rooted in ancient associations between fertility, sexuality and femininity that can also be traced in the historical development of the English language. With the help of commentators such as Martha Fineman, the article situates parents and children within a discourse of family which prioritises conjugality, with consequences for the ways in which the internal and external boundaries of families are delineated.

Kantian principle and the right to life in legal judgement: The case of the conjoined twins

THE MOST enduring legacy of Kant’s systematic moral theory is his commitment to rational justification. Modern “Kantians” such as Rawls, although sharing the Postmoderns’ suspicion of Kant’s metaphysical foundation for moral justification, have sought to preserve this commitment. The reason that the goal of an objective and rational viewpoint has maintained its value despite the Postmodern onslaught is because of a residual belief that the unknown “other” can and should be made known through elucidation of essential shared characteristics. Despite all his differences in terms of traditions, beliefs, language, culture, history etc, a person is “at the end of the day” essentially just that: an individual who can be ascribed essential, universal, liberal characteristics. In this fashion there is a possibility that all people might be united under common attributes. For Kant, persons are rational beings capable of acting morally and hence autonomously. For Rawls, they share an essential identity as free and equal and recognise each other as such. And this is precisely why liberalism, despite the claims of Rawls and others to the contrary, continues to be so controversial. Recognition of the other as an individual worthy of moral regard (“just like me!”) and hence inclusion of him/her into a framework of moral reasoning must be on liberalism’s own terms. Essentialising human characteristics produces the curious effect that the differences between persons mentioned just now can be seen from the liberal view to be preserved (in that they are left “untouched”1) and from the contextualist view, effaced (in that they are separated from the core of the individual—a separation which many believe is “at best artificial and at worst unattainable”).2