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Legal Ramifications Of Bad Decision Making

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State institutions balance citizens’ rights to autonomy with a paternalistic duty of care, serving to protect individuals from a Hobbesian State of Nature whilst granting the right to bodily autonomy. Reconciling the needs of the State with the rights, wants and wishes of the individual can be accomplished by minimising State interference, whilst maintaining civil society. However, this Libertarian view has to been seen in the context of modern State development and expansion, whereby now the majority of States provide public sector services to their citizens, ingrained in various political, legal and municipal institutions. In defining how far the State should interfere in personal decision-making, such as criminalising the choice to gamble, drink excessive amounts of alcohol, or to drive dangerously, it is important to take into account the freedom lost for the individual. Therefore, whilst the criminalisation of bad choices is as an excessive measure for encouraging safe behaviour, collective systems of support allow for the protection of citizens without infringing on human rights.

The parameters of State interference can be seen in the current funding of the public sector, which encompasses healthcare, infrastructure and education at a national level as well as local provisions of refuse collection and basic community services. Some would fundamentally disagree with the existence of such institutions as they systematically enable and reinforce ‘bad choices’.  For example, services are required by law to treat alcoholics with liver failure who need organ transplants and provide for gamblers who require financial help. It can be argued that this is unfair to individuals who need help due to no fault of their own, and as such the State should not financially reward self-inflicted harm. Taken to an extreme however, this argument becomes morally abhorrent; it is unjustifiable to deny unvaccinated adult sufferers of diseases, such as measles, treatment, even if they deliberately put themselves at risk. In other scenarios, it is unclear whether a bad choice has been made at all. If an obese woman decides to conceive and falls pregnant, it is not obvious whether the benefits of having a child negate or indeed can be separated from the increased risks of such a person carrying to term with complex, potentially life threatening and arguably self-induced medical needs. In other words, denying motherhood to someone because of bad dietary choices is a clear violation of autonomy. There is also the issue of mental capacity for groups such as the mentally ill and those with learning disabilities or neurological conditions. When such people make bad choices, such as an anorexic patient who decides not to eat, they are deemed not responsible for that decision, and therefore have the right to be treated for their condition. If we accept that people have full control of their decision making, no matter their mental wellbeing, then we would have to deny all treatment to the most vulnerable in society. To summarise, a system in which all are wholly accountable for our misfortune to the extent support was withdrawn at the hint of misconduct would undermine the established moral principle of aid according to need. In contrast, a system of collective support for the vulnerable does not infringe on the right to bodily autonomy, as people have the right to choose whether to accesses these systems.

The other main venue for State control over individuals is the legal system, a key feature of which is that all citizens have the same rights and responsibilities under the rule of law. A consequence of this is that the State has the final say on what choices we are and aren’t allowed to make, so defining them as ‘bad’ and ‘good’ in the process. As such, everyone is protected from the harmful consequences of other’s decisions, whether that be by punishing the individual through the criminal justice system for offences such as murder or rape, or by personally holding them accountable in civil courts. However, a necessary component of all these offences is that they all affect another agent besides the perpetrator. For example, it is important to class shoplifting as a crime because it affects the livelihood of the shop or business owner negatively, and this loss can then be remedied by law. In contrast, the decision to gamble away all your money only directly affects you. This distinction is important, because criminalising such actions severely limits the human right to personal choice for no obvious societal gain, other than perhaps a punitive deterrent, and does not help the possibly addicted individual make better financial choices in the long term. It is hard to see a reasonable argument for turning justice into a blunt moral instrument along these lines, especially given that ‘bad choices’ would be difficult to police and punish. Returning to the gambling example, it would be hard to justify police time spent on breaking an illegal casino ring rather than solving a murder, and in terms of sentencing it would be unfair to fine those who had lost all their money, and anything more severe would seem immoral given the scale of the crime. Such laws would also be incredibly subjective, giving the State immense power over citizens.

In conclusion, an effective legal system, underpinned by the rule of law, and inclusive public sector services provided on the basis of need are essential for a free, civil and peaceful society, and so if these are effective there is no need to resort to criminalisation for bad decision making. Therefore, the question of where we should draw the line between the needs of civil society and individuals ultimately comes down to the kind of society we aspire to live in. Do we wish for a State in which it is a crime to do anything that might harm us, from being unvaccinated to losing at cards,  or one in which we are indulged to an extent, knowing we are protected from misfortune, such as ill-health or falling into bankruptcy?

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Recent Case of Charlie Gard – Who Knows Best?

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doctors vs judges

The recent Charlie Gard case that has flooded international news is characteristic of the intricate, global controversy: who has the right over life?

Infant Charlie Gard was born with an extremely rare genetic defect known as MDDS, which irreversibly deteriorated his condition to severe brain damage, immobility, deafness and ventilation by artificial means alone. Established under The Children Act 1989, institutional authorities (hospitals, governments) were assigned with giving the final decision on whether a young patient could live, designed to safeguard parents from protecting their own needs rather than what was best for their child.

Whilst Charlie’s parents wanted their precious child to live, all courts of appellate jurisdiction, along with the doctors at Great Ormond Street Hospital, at which Charlie was kept on the life support, thought it was in Charlie’s best interests to end his life rather than allow his quality of life to be irrevocably poor.

So, who should we trust to give the final say about a child’s well-being? Should families, who have given birth to the child, their possession, be given the legal responsibility to overrule the state in their decision? Of course, this brings moral implications, such that the parents would not want to say goodbye to their child and therefore not act in his/her’s best interests.

Let’s now bring in another scenario, whereby the patient is of adult age. Tony Bland sustained detrimental injuries from the Hillsborough Disaster in 1989, which left him in a permanent vegetative state (PVS) until his death in 1993. It was eventually ruled in the House of Lords that the Artificial Nutrition and Hydration (ANH), that was prolonging him living, should end to allow Bland to “die in dignity” (Court order). This case differs from the Charlie Gard case as both the parents and the doctors thought withdrawing ANH was in Tony’s best interests.

Despite differences, the Bland case elucidates the complexity involved in euthanasia cases in the UK. Was it morally right for the state to prevent Gard’s parents from allowing experimental treatment to be made in the hope of keeping their son alive, despite his physical and mental state? Was it morally right for the court to give consent to the withdrawal of ANH and allow Tony to die? How would the result differ if it was unsure how long he would be in a vegetative state for?

Let us assess one last scenario. Terminally ill man Noel Conway, aged 67, launched a legal challenge for his own right to die. He was diagnosed with motor neurone disease, which has meant his ability to move, dress, eat and even breathe has irrevocably diminished. Noel condemned Section 2(1) of the Suicide Act 1961, which prohibited assisted suicide (voluntary euthanasia) under UK law, outlining his deteriorating quality of life and the prospect of “unimaginable suffering”. As he strongly remarks, “Current law means that I will have no control of how my life ends”.

We are once again asking ourselves where ultimate authority lies in determining the end of one’s life. This global complexity should never be looked on lightly and all cases of similar note should be looked at distinctly and intricately.

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Legal Reform: Social Norms and Technology

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In the same way that photoreceptors in your eye respond to light, law responds to the stimulus of social pressure and technological advances. Take smoking as a first example. Rising drastically during the First and Second World War, the number of adults smoking cigarettes by 1949 amounted to approximately 81% of the male population and 39% of the female population. In the mid-20th century, smoking was seen as a social norm, with many advertisements oblivious to the health detriments caused by smoking. Notable slogans claimed fabricated benefits: “for digestion’s sake”, “a feeling of well-being”, and “throat protection against cough irritation”.

It was not until a 1950 report published in the British Medical Journal that evidential research was found, linking smoking with the formation of lung cancer. This was the first of a chain of research that changed the way both doctors and the public viewed smoking, resulting in social pressure for legal reform, in which the government was forced to respond to. In 1965, a ban on television cigarette advertisement was implemented, progressing to a complete advertisement ban in 2005 and most significantly an end to smoking in public was enforced in July 2007. More recently, the debate over cannabis legislation is a hot topic for future debate, with 26 US states currently legalising marijuana in some form. As scientific research progresses in this field of study, perhaps society’s attitudes towards cannabis may change, prompting further legal reform.

New crimes were necessary as computing became more prominent towards the end of the 20th century. The Computer Misuse Act 1990 served as a response to the rise in cyber-crime, most significantly hacking. Further legislation brought in targeted identity fraud and harassment over the web, encompassing cyber-bullying although it has no specific mention. Moreover, the development of cars and their sudden surge in frequency led to more common traffic accidents. Subsequently, laws were implemented to make driving on the roads a safer experience, with drink driving, mobile phone usage, and speeding all becoming new additions to criminal law in the UK.

To conclude, law has successfully evolved in line with social norms and technological developments in order to protect society and respond to pressure from reformist groups. It is vital that the law regularly adapts to modernisation, to prevent a backwards legal system and to protected the welfare of the majority.

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After Taiwan, What’s Next For Asia?

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LGBT rights in Asia

T​aiwan has long been home to Asia’s most spirited LGBT communities, with the hashtag #TaiwanGayMarriageLegalization attracting over 11 million views on China’s Weibo. The country ​has recently joined the United States, Canada and 18 others to rule in favor towards ​constitutional protection of same-sex marriage. But the question of what it symbolises in Asia remains unresolved.

If the law functions to balance the need for stability with the demand for progress, Taiwan’s ​announcement from May acts as a positive testament. The decision favoring constitutional protection confirms growing momentum in the country, where child adoption by unmarried same-sex couples is becoming increasingly popular. Yet until the legislation was passed, only one individual can be recognised as a legal guardian. A condensed look reveals that legalising marriage is bound to cultural and political acceptance more deeply than economic concerns. It implies that the parliament has two years to amend laws regarding same-sex marriages. If not, couples will be permitted to register under the current framework. Both mothers or fathers of the adopted child could be entitled to equal welfare and property benefits.

Around the world, controversies surrounding alternative ideas from LGBT to the businesses of Uber and AirBnB have demonstrated the difficulty of balance. Taiwan’s ruling is undoubtedly a landmark for changing attitudes in Asia, but what does it signify for the rest of the hemisphere, where responses to minority cultural views remain conservative? Although attitudes to homosexuality were relatively liberal during the imperial times in mainland China, the ​Communist revolution in 1949 led to more cautious attitudes. Despite having it removed from the list of “mental disorders” in 2001, the stigma remains. Naturally, responses from China have been two-folded. Some are excited by the milestone, but others remain disheartened to the possibility of achieving legislative change. While many were still rejoicing shortly after the Taiwanese ruling, China’s most iconic lesbian socialising platform ‘Rela’ was shut down without explanation.

Likewise, although LGBT is not prohibited in the South Korean constitution, many remain closeted due to pressure from cultural traditions. But this is understandable, when some of the largest mobile corporations in the country have agreed to ​remove homosexual dating apps on the market, and a presidential candidate openly attacks gay soldiers for “weakening the country’s military.” Whether the rest of Asia could follow Taiwan’s footsteps as the social forerunner is still open to question, and it is certainly unjustified to generalise one of the largest and most diverse continents with a handful of examples. But one can be certain that ​LGBT continues to grow as an influential social dynamic in many Asian societies. ​Although t​he tug of war between traditional cultural views and changing public opinion will persist, ​Taiwan’s ruling could induce a chain effect in the long term.

When asking the youth “what do you dream of the world,” perhaps many would speak of tolerance. Such an abstract idea will undoubtedly carry a fluid definition, but obscurity is both its limitation and its beauty. The road to constitutional desegregation in the United states during in the 20th century was a difficult journey back and forth, and the same will go for LGBT in our time. But acceptance, before any legislative change is the first step that can go a long way. Regardless of whether one is in support of Taiwan’s ruling, it is an optimistic sign that ​societies are increasingly being warmed to the rights of gender and sexuality minorities through activism. It signifies not only acceptance of LGBT, but acceptance of cultural differences and their rights to equality before the law.

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