Latest Research from the Family and Medical Law Research Group
Research update: Michaelmas 2023
Members of the Family and Medical Law Research Group have had a busy summer and Michaelmas Term. Here are some of their publications which may be of interest:
Petros Panayiotou, Beneficence cannot justify voluntary euthanasia and physician-assisted suicide, Journal of Medical Ethics (2023)
The patient’s autonomy and well-being are sometimes seen as central to the ethical justification of voluntary euthanasia (VE) and physician-assisted suicide (PAS). While respecting the patient’s wish to die plausibly promotes the patient’s autonomy, it is less obvious how alleviating the patient’s suffering through death benefits the patient. Death eliminates the subject, so how can we intelligibly maintain that the patient’s well-being is promoted when she/he no longer exists? This article interrogates two typical answers given by philosophers: (a) that death confers a well-being benefit in the sense that it actualises a comparatively better life course for the patient (ie, a shorter life with less net suffering), and (b) that death is beneficial because non-existence which entails no suffering is superior to an existence filled with suffering. A close examination of the two senses in which the patient might incur a well-being benefit reveals problems that preclude physicians delivering VE/PAS in the name of beneficence.
Rakiya Farah, Rereading Identity Deception in the UK Sexual Offences Act 2003 - Incorporating Personal Traits and Attributes (SpringerBriefs in Law, 2023)
This book provides a comprehensive and nuanced analysis of the philosophical, theoretical, and psychological experimental literature on personal identity, marshalling relevant insights to support a broader reading of the impersonation provision. The argumentative thrust of the book is an extended equivalence thesis, which links numerical with qualitative identity. In this task, it engages in capacious exploration of different kinds of impersonation, at each juncture leading the reader to a more permissive understanding. Guided by the principle of consistency, the central thesis is that certain deceptions about personal traits should be unlawful based on existing prohibitions with which there is equivalence. A central contribution of the book is the articulation of a theoretical framework to support a richer understanding of identity, giving due attention to its qualitative aspects. This new framework is applied at stage three of the equivalence thesis to explain the relationship between individual traits and identity change. By implication, a potentially wide scope of consent-vitiating deceptions is endorsed. This presents a challenge to those who would defend more stringent limits. The book thus invites further discussion on the implications of this approach for the law on rape and indicates areas for further research and attention.
Jonathan Herring, Vulnerability and Children’s Rights, International Journal for the Semiotics of Law-Revue internationale de Sémiotique juridique, 36(4) (2023) 1509-1527
This paper will explore the relevance of vulnerability to children’s rights. Broadly speaking legal debates over children can be broken down into two camps. First, those who emphasise the vulnerability of children. For them rights designed to protect children from abuse and promote their welfare are the most significant. Second, those who claim that children are far less vulnerable than is assumed and should be given many of the freedoms of adults. For them rights of autonomy and freedom should be emphasised. This paper will argue that both camps make the error of starting with the norm of adulthood being a time of invulnerability and independence from which children are either distinguished or are closer to than is normally appreciated. Once it is recognised that adults share in children’s vulnerability, we can see that childhood vulnerability is not something which children should be enabled to escape from, nor is it something that is unique to children. Vulnerability and interdependence should form the basis of rights for both children and adults. There is, therefore, no reason why children and adults should not have the same rights.
Jonathan Herring, Rethinking Sexual Crimes: From Women’s Consent to Men’s Responsibility, Anatomia do Crime Jan-Jun (2023) 19-34
This article proposes a rethinking of the law’s approach to rape. It is claimed that the focus of the law should be on the responsibility of the defendant to ensure they have sufficiently good reasons to engage in sex. At the moment the law of rape, particularly as it plays out in rape trials, focuses on the state of mind of the victim. The academic debates centre on whether consent is to be assessed subjectively or objectively; whether the victim needs to positively demonstrate opposition to the sexual act or whether it is sufficient if the victim does not positively manifest consent; and when apparent consent might be negated through threats or deception. At trial, the case often turns on whether or not the victim is believed when she says she did not consent. However, fascinating these arguments are, it will be argued, they are somewhat beside the point. The key question is whether the defendant had sufficient reason to perform the act.
Jonathan Herring, Legal Ethics, 3rd edition (OUP, 2023)
The book provides a clear and engaging overview of legal ethics, highlighting the ethical issues surrounding professional conduct and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality and fees, are covered with references throughout to the professional codes of conduct.
Jonathan Herring, Family Law, 11th edition (Pearson, 2023)
The textbook offers an exceptional coverage of all essential family law principles. With a clear and logical structure, the text guides you through the theories, debates, and political and ethical dilemmas surrounding the subject, ensuring you have the knowledge required to critique existing law and evaluate reform options. The 11th edition has been fully updated with all significant developments in family law.
If you have any publications you would like to share on this site, please get in touch with the blog editors Mihika Poddar or Urania Chiu. We also welcome individual blog posts summarising recent publications in the field.