Social Responsibility and the State's Duty to provide Healthcare: An Islamic Ethico‐Legal Perspective

The United Nations Educational, Scientific and Cultural Organization's (UNESCO) Declaration on Bioethics and Human Rights asserts that governments are morally obliged to promote health and to provide access to quality healthcare, essential medicines and adequate nutrition and water to all members of society. According to UNESCO, this obligation is grounded in a moral commitment to promoting fundamental human rights and emerges from the principle of social responsibility. Yet in an era of ethical pluralism and contentions over the universality of human rights conventions, the extent to which the UNESCO Declaration can motivate behaviors and policies rests, at least in part, upon accepting the moral arguments it makes. In this essay I reflect on a state's moral obligation to provide healthcare from the perspective of Islamic moral theology and law. I examine how Islamic ethico‐legal conceptual analogues for human rights and communal responsibility, ?uqūq al‐’ibād and far? al‐kifāyah and other related constructs might be used to advance a moral argument for healthcare provision by the state. Moving from theory to application, I next illustrate how notions of human rights and social responsibility were used by Muslim stakeholders to buttress moral arguments to support American healthcare reform. In this way, the paper advance discourses on a universal bioethics and common morality by bringing into view the concordances and discordances between Islamic ethico‐legal constructs and moral arguments advanced by transnational health policy advocates. It also provides insight into applied Islamic bioethics by demonstrating how Islamic ethico‐legal values might inform the discursive outputs of Muslim organizations.     

The conjoined twins and the limits of rationality in applied ethics

In this article I consider the case of the surgical separation of conjoined twins resulting in the immediate and predictable death of the weaker one. The case was submitted to English law by the hospital, and the operation permitted against the parents' wishes. I consider the relationship between the legal decision and the moral reasons adduced in its support, reasons gaining their force against the framework of much mainstream normative ethical theory. I argue that in a few morally dilemmatic situations, such a legalistic–theoretical approach cannot plausibly accommodate certain irreducible and ineliminable features of the ethical experience of any concrete individual implicated in the situation, and that this failure partly undermines its self–appointed role of guiding such an individual's conduct. For example, the problem as experienced by the judge and by the parents might not be the same problem at all, and some of their respective reasons may be mutually unintelligible or impotent. I certainly do not argue for a rejection of law or of moral theory; I merely challenge their implicit claim to comprehensiveness and their fixation with an idealised and putatively universal rationality modelled on converging scientific enquiry. Finally, I claim that at least in the twins' case there may be insufficient normative robustness to the conclusions reached, or indeed reachable, by the court in a situation where intuitions and moral reasons pull in fundamentally incommensurable directions; as such, there may be room for an acknowledgement of the spiritual, through a humble abstention from making a decision – which is not to be confused with deciding to do nothing.     

For the law, neuroscience changes nothing and everything

The rapidly growing field of cognitive neuroscience holds the promise of explaining the operations of the mind in terms of the physical operations of the brain. Some suggest that our emerging understanding of the physical causes of human (mis)behaviour will have a transformative effect on the law. Others argue that new neuroscience will provide only new details and that existing legal doctrine can accommodate whatever new information neuroscience will provide. We argue that neuroscience will probably have a transformative effect on the law, despite the fact that existing legal doctrine can, in principle, accommodate whatever neuroscience will tell us. New neuroscience will change the law, not by undermining its current assumptions, but by transforming people's moral intuitions about free will and responsibility. This change in moral outlook will result not from the discovery of crucial new facts or clever new arguments, but from a new appreciation of old arguments, bolstered by vivid new illustrations provided by cognitive neuroscience. We foresee, and recommend, a shift away from punishment aimed at retribution in favour of a more progressive, consequentialist approach to the criminal law.     

Wrongness,Responsibility, and Conscientious Refusals in Health Care

In this article, I address what kinds of claims are of the right kind to ground conscientious refusals. Specifically, I investigate what conceptions of moral responsibility and moral wrongness can be permissibly presumed by conscientious objectors. I argue that we must permit HCPs to come to their own subjective conclusions about what they take to be morally wrong and what they take themselves to be morally responsible for. However, these subjective assessments of wrongness and responsibility must be constrained in several important ways: they cannot involve empirical falsehoods, objectionably discriminatory attitudes, or unreasonable normative beliefs. I argue that the sources of these constraints are the basic epistemic, relational, and normative competencies needed to function as a minimally decent health‐care professional. Finally, I consider practical implications for my framework, and argue that it shows us that the objection raised by the plaintiffs in Zubik v. Burwell is of the wrong sort.     

The moral distinction between killing and letting die in medical cases

In some medical cases there is a moral distinction between killing and letting die, but in others there is not. In this paper I present an original and principled account of the moral distinction between killing and letting die. The account provides both an explanation of the moral distinction and an explanation for why the distinction does not always hold. If these explanations are correct, the moral distinction between killing and letting die must be taken seriously in medical contexts.
Defeasibly, when an agent kills she takes responsibility, but when an agent lets die she does not take responsibility. Therein lies the moral distinction between killing and letting die. The distinction, however, is defeated when an agent is already responsible for the surrounding situation. In such cases, killing does not involve taking any further responsibility and letting die does not avoid taking any responsibility. Medical examples are frequently complicated because patients' autonomous choices impact upon medical practitioners' surrounding responsibility.     

Is an account of identity necessary for bioethics? What post-genomic biomedicine can teach us

Is a theory of identity necessary for bioethics? In this paper I investigate that question starting from an empirical explication of identity based on post-genomics, in particular on epigenetics. After analysing whether the classic problems a theory of identity has to cope with (fictional transplants; conjoined twins; and definition of death) also affect the proposed epigenetic account of identity, I deal with three topics (the assumption of moral responsibility; decision maintenance in the case of advance directives; and the attribution of value to human beings at given developmental stages) to offer an insight on the relationship between that account and bioethics.     

Causation in the sciences: An inferentialist account

I present an alternative account of causation in the biomedical and social sciences according to which the meaning of causal claims is given by their inferential relations to other claims. Specifically, I will argue that causal claims are (typically) inferentially related to certain evidential claims as well as claims about explanation, prediction, intervention and responsibility. I explain in some detail what it means for a claim to be inferentially related to another and finally derive some implication of the proposed account for the epistemology, semantics and metaphysics of causation.     

Ideologies of Language: Some Reflections on Language and U.S. Law

I present two U.S. court cases in which I participated as a linguistic anthropological "expert" to show how language ideologies of the law both influence legal outcomes and conflict with "scientific" ideas about language. One case was the murder trial of a young Mixtec-speaking Indian from Oaxaca; the other was a civil suit brought by four Hispanic women dismissed from an elder-care center for speaking Spanish on the job. I identify in the linguistic ideologies of both cases a principle of "referential transparency" that takes the essential business of words, regardless of the linguistic code, to be communicating propositional information. In the second case, 1 describe a further notion of "linguistic paranoia" in which speaking a language other than English is taken as inherently insulting or threatening. I relate these implicit ideological threads to the legal outcomes, to the restricted notions of potential "language rights" that might emerge from such ideologies, and to the clash between theoretical and judicial perspectives on language. [Keywords: U.S. law, language rights, linguistic ideology, expert witnesses, linguistic anthropology]     

The causal structure of mechanisms

Recently, a number of philosophers of science have claimed that much explanation in the sciences, especially in the biomedical and social sciences, is mechanistic explanation. I argue the account of mechanistic explanation provided in this tradition has not been entirely satisfactory, as it has neglected to describe in complete detail the crucial causal structure of mechanistic explanation. I show how the interventionist approach to causation, especially within a structural equations framework, provides a simple and elegant account of the causal structure of mechanisms. This account explains the many useful insights of traditional accounts of mechanism, such as Carl Craver’s account in his book Explaining the Brain (2007), but also helps to correct the omissions of such accounts. One of these omissions is the failure to provide an explicit formulation of a modularity constraint that plays a significant role in mechanistic explanation. One virtue of the interventionist/structural equations framework is that it allows for a simple formulation of a modularity constraint on mechanistic explanation. I illustrate the role of this constraint in the last section of the paper, which describes the form that mechanistic explanation takes in the computational, information-processing paradigm of cognitive psychology.     

Witnessing a potent truth: rethinking responsibility in the anthropology of theisms

For Ahmadi Muslims in the Indian town of Qadian, a major part of ethical behaviour is the cultivation of a relationship of subordination to potent religious truths. This involves both manifesting and witnessing the truth of their religion in the form of polemical arguments and religious travel. I argue that understanding how moral character develops out of such a relationship requires us to turn our analytical attention away from agency and towards responsibility. Such a move has important implications for the more general anthropological study of theisms.     

Mestizaje and Law Making in Indigenous Identity Formation in Northeastern Brazil: "After the Conflict Came the History"

In this article, I explore issues of authenticity, legal discourse, and local requirements of belonging by considering the recent surge of indigenous recognitions in northeastern Brazil. I investigate how race and ethnicity are implicated in the recognition process in Brazil on the basis of an analysis of a successful struggle for indigenous identity and access to land by a group of mixed-race, visibly, African-descended rural workers. I propose that the debate over mestizaje (ethnoracial and cultural mixing) in the Spanish-speaking countries of Latin America can be reconfigured and clarified by broadening it to include such Brazilian experiences. I argue that the interaction between two processes—law making and indigenous identity formation—is crucial to understanding how the notion of "mixed heritage" is both reinforced and disentangled. As such, this article is an illustration of the role of legal discourse in the constitution of indigenous identities and it introduces northeastern Brazil into the global discussion of law, indigenous rights, and claims to citizenship.     

论法律视野中医患关系的性质

医患关系法律性质的准确界定是医患纠纷妥善解决的基本前提。目前，我国关于医患关系法律性质的四种主流观点往往把医患关系归属于某种法律关系，这样的做法都显得会以偏概全或牵强附会。医患关系的基本法律属性是民事法律关系，但具有区别于一般法律关系的特征，是特殊的民事法律关系，在医患纠纷阶段，是民事侵权关系。     

Protecting Future Children from In‐Utero Harm

The actions of pregnant women can cause harm to their future children. However, even if the possible harm is serious and likely to occur, the law will generally not intervene. A pregnant woman is an autonomous person who is entitled to make her own decisions. A fetus in‐utero has no legal right to protection. In striking contrast, the child, if born alive, may sue for injury in‐utero; and the child is entitled to be protected by being removed from her parents if necessary for her protection. Indeed, there is a legal obligation for health professionals to report suspected harm, and for authorities to protect the child's wellbeing. We ask whether such contradictory responses are justified. Should the law intervene where a pregnant woman's actions risk serious and preventable fetal injury? The argument for legal intervention to protect a fetus is sometimes linked to the concept of ‘fetal personhood’ and the moral status of the fetus. In this article we will suggest that even if the fetus is not regarded as a separate person, and does not have the legal or moral status of a child, indeed, even if the fetus is regarded as having no legal or moral status, there is an ethical and legal case for intervening to prevent serious harm to a future child. We examine the arguments for and against intervention on behalf of the future child, drawing on the example of excessive maternal alcohol intake.     

The probability of causation under a stochastic model for individual risk

In this paper we offer a mathematical definition for the probability of causation that formalizes the legal and ordinary-language meaning of the term. We show that, under this definition, even the average probability of causation among exposed cases is not identifiable from epidemiologic data. This is because the probability of causation depends both on the unknown mechanisms by which exposure affects disease risk and competing risks, and on the unknown degree of heterogeneity in the background disease risk of the exposed population. We derive the maximum and minimum values for the probability of causation consistent with the observable population quantities. We also derive the relationship of the "assigned share" (excess incidence rate as a proportion of total incidence rate) to the probability of causation.     

Conscience claims,metaphysics, and avoiding an LGBT eugenic

Novel assisted reproductive technologies (ART) are poised to present our society with strange new ethical questions, such as whether lesbian, gay, bisexual, and transgender (LGBT) couples should be allowed to produce children biologically related to both parents, or whether trans‐women who want to experience childbirth should be allowed to receive uterine transplants. Clinicians opposed to offering such technologies to LGBT couples on moral grounds are likely to seek legal shelter through the conscience clauses enshrined in U.S. law. This paper begins by briefly discussing some novel ART on the horizon and noting that it is unclear whether current conscience clauses will permit fertility clinics to deny such services to LGBT individuals. A compromise approach to conscience is any view that sees the value of respecting conscience claims within limits. I describe and critique the constraints proposed in the recent work of Wicclair, NeJaime and Siegel as ultimately begging the question. My purpose is to strengthen their arguments by suggesting that in the controversial situations that elicit claims of conscience, bioethicists should engage with the metaphysical claims in play. I argue that conscience claims against LGBT individuals ought to be constrained because the underlying metaphysic—that God has decreed the LGBT lifestyle to be sinful—is highly implausible from the perspective of a naturalized metaphysic, which ought to be the lens through which we evaluate conscience claims.     

Cell theory, specificity, and reproduction, 1837-1870

The cell is not only the structural, physiological, and developmental unit of life, but also the reproductive one. So far, however, this aspect of the cell has received little attention from historians and philosophers of biology. I will argue that cell theory had far-reaching consequences for how biologists conceptualized the reproductive relationships between germs and adult organisms. Cell theory, as formulated by Theodor Schwann in 1839, implied that this relationship was a specific and lawful one, that is, that germs of a certain kind, all else being equal, would produce adult organisms of the same kind, and vice versa. Questions of preformation and epigenesis took on a new meaning under this presupposition. The question then became one of whether cells could be considered as autonomous agents producing adult organisms of a given species, or whether they were the product of external, organizing forces and thus only a stage in the development of the whole organism. This question became an important issue for nineteenth-century biology. As I will demonstrate, it was the view of cells as autonomous agents which helped both Charles Darwin and Gregor Mendel to think of inheritance as a lawful process.     

When good organs go to bad people

A number of philosophers have argued that alcoholics should receive lower priority for liver transplantations because they are morally responsible for their medical conditions. In this paper, I argue that this conclusion is false. Moral responsibility should not be used as a criterion for the allocation of medical resources. The reason I advance goes further than the technical problem of assessing moral responsibility. The deeper problem is that using moral responsibility as an allocation criterion undermines the functioning of medicine.     

Framing Responsibility

How can we register the participation of a range of elements, extending beyond the human subject, in the production of HIV events? In the context of proposals around biomedical prevention, there is a growing awareness of the need to find ways of responding to complexity, as everywhere new combinations of treatment, behavior, drugs, norms, meanings and devices are coming into encounter with one another, or are set to come into encounter with one another, with a range of unpredictable effects. In this paper I consider the operation of various framing devices that attribute responsibility and causation with regard to HIV events. I propose that we need to sharpen our analytic focus on what these devices do, their performativity??that is, their full range of worldly implications and effects. My primary examples are the criminal law and the randomized control trial. I argue that these institutions operate as framing devices: They attribute responsibility for HIV events and externalize other elements and effects in the process. Drawing on recent work in science and technology studies as well as queer theory, I set out an analytic frame that marks out a new role for HIV social research. Attentiveness to the performative effects of these devices is crucial, I suggest, if we want better to address the global HIV epidemic.     

Beyond Trust: Plagiarism and Truth

Academic misconduct distorts the relationship between scientific practice and the knowledge it produces. The relationship between science and the knowledge it produces is, however, not something universally agreed upon. In this paper I will critically discuss the moral status of an act of research misconduct, namely plagiarism, in the context of different epistemological positions. While from a positivist view of science, plagiarism only influences trust in science but not the content of the scientific corpus, from a constructivist point of view both are at stake. Consequently, I argue that discussions of research misconduct and responsible research ought to be explicitly informed by the authors’ views on the relationship between science and the knowledge it produces.     

Causal reasoning,causal probabilities,and conceptions of causation

The present paper deals with the tools that can be used to represent causation and to reason about it and, specifically, with their diversity. It focuses on so-called “causal probabilities”—that is, probabilities of effects given one of their causes—and critically surveys a recent paper in which Joyce (2010) argues that the values of these probabilities do not depend on one’s conception of causation. I first establish a stronger independence claim: I show that the very definition of causal probabilities is independent of one’s conception of causation. Second, I investigate whether causal probabilities indeed take the same values under their different possible definitions.