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Reference notes
Cf John Rawls,A Theory of Justice Harvard University Press, Cambridge, 1971.
Cf David Gauthier,Morals By Agreement Clarendon Press, Oxford, 1986.
A Theory of Justice, op cit., pp. 260–263.
Morals by Agreement, op cit., p. 233.
Cf Thomas Nagel's,The View From Nowhere Oxford University Press, New York, 1986, and Bernard Williams'Ethics and the Limits of Philosophy, Harvard University Press, Cambridge, 1985, esp. Chapter 2, which is entitled “The Archimedean Point.”
Morals By Agreement, op cit., p. 233.
For a more detailed presentation of the arguments for these standards of disclosure, and from which this summary account is taken, see Ruth R. Faden and Tom L. Beauchamp,A History and Theory of Informed Consent Oxford University Press, Oxford, 1986, pp. 30–34. In this book Faden and Beauchamp argue for what they call “effective communication.” This is not really a new standard of disclosure but rather a principle one could use in order to meet the demands of the subjective standard of disclosure. For details of their argument see pp. 298–336.
This problem is more difficult for Gauthier than Rawls for in Rawls' case—given the restricted nature of our inquiry—it might be the case that we end up viewing those who are unable to engage in the practice of informed consent as the least advantaged. Gauthier, on the other hand, tells us explicity that his theory does not apply to those who are, unfortunately, less fortunate than the rest of us.Cf Morals by Agreement, op cit., p. 17.
For an account of the distinction between justice and charity, and from which the following arguments are drawn see Allen Buchanan's “Justice and Charity,”Ethics Vol. 97, No. 3, April 1987, pp. 558–575.
Cf Immanuel Kant'sFoundations of the Metaphysics of Morals (trans. Lewis White Beck), Bobbs-Merrill Co., Indianapolis, 1980.
Cf J. S. Mill'sUtilitarianism (ed. O. Piest), Bobbs-Merrill Co., Indianapolis, 1957, p. 61.
For an account of rights and correlative duties see Wesley Newcomb Hohfeld'sFundamental Legal Conceptions As Applied in Judicial Reasoning Yale University Press, New Haven, 1919, esp. pp. 35–64.
For an account of a pluralist approach—that is combining what the author takes to be the best in each of the utilitarian, egalitarian, libertarian and Rawlsian contractarianism—not to the problem of disclosure requirements in informed consent but rather to the problem of rights to health care see Charles J. Dougherty'sAmerican Health Care Oxford University Press, Oxford, 1988.
For an overview of these competing theories of justice see Allen Buchanan's “Justice: A Philosophical Review,” inJustice and Health Care, (ed. Earl E. Shelp) D. Reidel Publishing Co., Dordrecht, Holland, 1981. For an overview of these theories as applied to the problem of triage—that is the distribution of medical resources under conditions of dire scarcity—see Gerald R. Winslow's excellent bookTriage and Justice, University of California Press, Berkeley, 1982.
As far as I know no one has attempted to apply Rawls' theory to this problem although some have applied the theory to other problems in medical ethics. The two most recent applications of Rawls' theory have been by Norman Daniels in hisJust Health Care (Cambridge University Press, Cambridge, 1985) and hisAm I My Parents' Keeper? An Essay on Justice Between the Young and Old, (Oxford University Press, Oxford, 1988).
Cf A Theory of Justice, op cit, p. 12. Also see pp. 136–150.
Ibid, p. 62.
Ibid, p. 152–153.
For the exact formulation of the three principles of justice seeA Theory of Justice, op cit. p. 302.
Ibid, pp. 42–45. Allen Buchanan offers the best explication of Rawls' concept of lexical ordering when he says “A principle ‘P’ is lexically prior to a principle ‘Q’ if and only if we are first to satisfy all the requirements of ‘P’ before going on to satisfy the requirements of ‘Q’. Lexical priority allows no trade-offs between the demands of conflicting principles: the lexically prior principle takes absolute priority.”Cf Buchanan “Justice: A Philosophical Review,”op cit, p. 6.
Cf Foundations of the Metaphysics of Morals, op cit, p. 73. Also see Rawls' section on the “The Kantian Interpretation of Justice as Fairness” inA Theory of Justice, op cit, pp. 251–257.
Foundations of the Metaphysics of Morals, op cit, p. 73. Also see p. 51.
A Theory of Justice, op cit, p. 102. Both Nozick and Gauthier object to Rawls' argument that people cannot be said to deserve their share of the natural lottery.Cf Morals By Agreement, op cit, p. 220, and Robert Nozick'sAnarchy, State, and Utopia, Basic Books, New York, 1974, pp. 213–216.
Morals by Agreement, op cit, p. 7.
Ibid, pp. 235–236.
Ibid, pp. 253–254. Also see p. 256 where Gauthier says that this is the “second key that unlocks the door screening our moral understanding ...” The “first key” is, as I will indicate shortly, that the ideal actor must choose as if she were each of the persons affected by her choice.
Ibid, p. 255.
Ibid, p. 257.
Ibid, pp. 257–258.
For Gauthier's discussion of the Lockean Proviso see Chapter 7, “The Initial Bargaining Position: Rights and the Proviso, pp. 190–232. Gauthier's ideal actor also chooses “the market in conditions of perfect competition,” (p. 261), and the “principle of minimax relative concession,” (p. 265) but these need not concern us here.
Ibid, pp. 258–259.
John Locke,Two Treatises of Government, ch. v, para. 25. There is an important problem concerning what Locke meant when he said that God gave the world to man “in common.” One can interpret this in either of two ways. On the one hand, one could interpret “in common” to mean that the world is unowned and therefore Locke's task is to show how people can come to have private property rights in a world where, initially, no one owns anything. On the other hand, one could interpret “in common” to mean that the world is jointly owned by everyone and therefore Locke's task is to show how one can come to have private property rights where, initially, everyone jointly owns everything. We will not concern ourselves with this problem other than to note, for it is important in what follows, that both Nozick and Gauthier accept the former interpretation.
Two Treatises of Government, ch. v, para. 33.
Anarchy, State, and Utopia, op cit, p. 175.
Morals by Agreement, op cit, p. 203.
Cf J. J. C. Smart and Bernard Williams,Utilitarianism For and Against Cambridge University Press, Cambridge, 1973, pp. 116–117.
Cf A Theory of Justice, op cit, p. 27.
Cf Morals by Agreement, op cit, p. 254.
Ibid, pp. 2–3.
A Theory of Justice, op cit, pp. 48–51.
For a comparison of these ignorance conditions seeA Theory of Justice pp. 136–142 andMorals By Agreement, pp. 235–236, 253–257.
Loren Lomasky,Persons, Rights, and the Moral Community, Oxford University Press, Oxford, 1987, p. 47.
Ibid.,, p. 26.
Ibid.,, p. 31.
Ibid.,, p. 26.
A Theory of Justice, op cit, pp. 407–416.
Utilitarianism: For and Against, op cit, p. 117.
Joseph Raz,The Morality of Freedom Clarendon Press, Oxford, 1986, pp. 288–320.
Josiah Royce,The Philosophy of Loyalty The Macmillan Company, New York, 1924, p. 168.
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Cust, K.F.T. Hypothetical contractarianism and the disclosure requirement problem in informed consent. J Med Hum 12, 119–138 (1991). https://doi.org/10.1007/BF01145832
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DOI: https://doi.org/10.1007/BF01145832