You Should Never Look a Gift Horse in the Mouth: One-Size-Fits-All Compensation in Wrongful Conception

This article reconsiders the House of Lords decision in Rees v. Darlington Memorial Hospital NHS Trust (2003) and the decision to award a conventional award of £15,000 in all cases of failed sterilisation resulting in the birth of an unwanted child. In so doing, it briefly recites the history of the Wrongful Conception action and the unique facts of Rees. It then goes on the consider the implications of two fundamental aspects of the judgment. Firstly, it looks at the 'conventional award' itself and considers the reasoning behind the award and the effect that it has on our understanding of (particularly women's) reproductive autonomy. Secondly, it analyses the rather 'unique' judgment of Lord Scott and his decision to evaluate these cases using the possessory analogy of an unwanted foal; particular focus is given to the notion of parental 'choice' in these cases and whether mitigation (i.e. abortion or adoption) can ever be considered "reasonable".

Transgender Freedom and the Law: A Liberal-Poststructural Discussion on McNally

In R v McNally, gender deception is found capable of leading to the vitiation of consent to sexual intercourse and, in so doing, places restriction on the freedom of transgendered individuals in favour of cisgendered freedom. This paper seeks to challenge the standing of this decision by adopting a combined methodological approach between Deleuzian post-structuralism and Gewirthian legal idealism. In so doing, we attempt to show that the combination offers a novel and productive approach to contentious decisions, such as that in McNally. Our approach brings together post-structuralist corporeality which conceives of the body as material and productive, and Gewirth’s ‘agent’ to conceptualise the legal body as an entity which can, and should, shape judicial reasoning. It does this by employing the criterion of categorically necessary freedom on institutionalised practical reasoning. These ‘bodies of agents’ can be conceived as the underpinning and justificatory basis for the authority of the law subject to the morally rational Principle of Generic Consistency. This egalitarian condition precedent requires individualisation and the ability to accept self-differentiation in order to return to a status, which can be validly described as “law”. Ultimately, we argue that this theoretical combination responds to a call to problematise the connection made between gender discourse and judicial reasoning, whilst offering the opportunity to further our conceptions of law and broaden the theoretical armoury with which to challenge judicial reasoning in McNally. That is, a ‘good faith’ attempt to further and guarantee transgender freedoms.

You Can't Always Get What You Want: A Gewirthian Model of Rational Autonomy in Abortion

The law regulating the availability of abortion is problematic both legally and morally. It is dogmatic in its requirements of women and doctors and ignorant of would-be fathers. Practically, its usage is liberal - with s1(1)(a) Abortion Act 1967 treated as a ‘catch all’ ground - it allows abortion on demand. Yet this is not reflected in the ‘law’. Against this outdated legislation I propose a model of autonomy which seeks to tether our moral concerns with a new legal approach to abortion. I do so by maintaining that a legal conception of autonomy is derivable from the categorical imperative resulting from Gewirth’s argument to the Principle of Generic Consistency: Act in accordance with the generic rights of your recipients as well as of yourself. This model of Gewirthian Rational Autonomy, I suggest, provides a guide for both public and private notions of autonomy and how our autonomous interests can be balanced across social structures in order to legitimately empower choice. I claim, ultimately, that relevant rights in the context of abortion are derivable from this model.

Cappadocia: where Greek prepositions come to die

The Cappadocian variety of Ulaghátsh is unique among the Greek-speaking world in having lost the inherited preposition ‘se’. The innovation is found with both locative and allative uses and has af-ected both syntactic contexts in which ‘se’ was originally found, that is, as a simple preposition (1) and as the left-occurring member of circumpositions of the type ‘se’ + NP + spatial adverb (2). (1) a. tránse ci [to meidán] en ávʝa see.PST.3SG COMP ART.DEF.SG.ACC yard.SG.ACC COP.3 game.PL.NOM ‘he saw that in the yard is some game’ (Dawkins 1916: 348) b. ta erʝó da qardáʃa évɣan [to qonáq] ART.DEF.PL.NOM two ART.DEF.PL.NOM friend.PL.NOM ascend.PST.3PL ART.DEF.SG.ACC house.SG.ACC ‘the two friends went up to the house’ (Dawkins 1916: 354) (2) émi [ta qonáca mésa], kiríʃde [to ʝasdɯ́q píso] enter.PST.3SG ART.DEF.PL.NOM house.PL.ACC inside hide.PST.3SG. ART.DEF.SG.ACC cushion.SG.ACC behind ‘he went into the houses and hid behind the cushions’ (Dawkins 1916: 348) In this paper, we set out to provide (a) a diachronic account of the loss of ‘se’ in Asia Minor Greek, and (b) a synchronic analysis of its ramifications for the encoding of the semantic and grammatical functions it had prior to its loss. The diachronic development of ‘se’ is traced by comparing the Ulaghátsh data with those obtained from Cappadocian varieties that have neither lost it nor do they show signs of losing it and, crucially, also from varieties in which ‘se’ is in the process of being lost. The comparative analysis shows that the loss first became manifest in circumpositions in which ‘se’ was preposed to the complement to which in turn a wide range of adverbs expressing topological relations were postposed (émi sa qonáca mésa > émi ta qonáca mésa). This finding is accounted for in terms of Sinha and Kuteva’s (1995) distributed spatial semantics framework, which accepts that the elements involved in the constructions under investigation—the verb (émi), ‘se’ and the spatial adverb (mésa)—all contribute to the expression of the spatial relational meaning but with differences in weighting. Of the three, ‘eis’ made the most minimal contribution, the bulk of it being distributed over the verb and the adverb. This allowed for it to be optionally dropped from circumpositions, a stage attested in Phlo-tá Cappadocian and Silliot, and to be later completely abandoned, originally in allative and subsequently in locative contexts (earlier: évɣan so qonáq > évɣan to qonáq; later: so meidán en ávʝa > to meidán en ávʝa). The earlier loss in allative contexts is also dealt with in distributed semantics terms as verbs of motion such as έβγαν are semantically more loaded than vacuous verbs like the copula and therefore the preposition could be left out in the former context more easily than in the latter. The analysis also addresses the possibility that the loss of ‘se’ may ultimately originate in substandard forms of Medieval Greek, which according to Tachibana (1994) displayed SPATIAL ADVERB + NP constructions. Applying the semantic map model (Croft 2003, Haspelmath 2003), the synchronic analysis of the varieties that retain ‘se’ reveals that—like many other allative markers crosslinguistically—it displays a pattern of multifunctionality in expressing nine different functions (among others allative, locative, recipient, addressee, experiencer), which can be mapped against four domains, viz. the spatiotemporal, the social, the mental and the logicotextual (cf. Rice & Kabata 2007). In Ulaghátsh Cappadocian, none of these functions is overtly marked as such. In cases like (1), the intended spatial relational meaning is arrived at through the combination of the syntax and the inherent semantics of the verb and the zero-marked NP as well as from the context. In environments of the type exemplified by (2), the adverb contributes further to the correct interpretation. The analysis additionally shows that, despite the loss of ‘se’, Ulaghátsh patterns with all other Cappadocian varieties in one important aspect: Goal and Location are expressed similarly (by zero in Ulaghátsh, by ‘se’ in the other varieties) whereas Source is being kept distinct (expressed by ‘apó’ in all varieties). Goal-Location polysemy is very common across the world’s languages and, most crucially, prevails over other possible polysemies in the tripartite distinction Source—Location—Goal (Lestrade 2010, Nikitina 2009). Taking into account this empirical observation, our findings suggest that the reor-anisation of spatial systems can have a local effect—in our case the loss of a member of the prepositional paradigm—but will keep the original global picture intact, thus conforming to crosslinguistically robust tendencies.  References Croft, W. 2001. Radical Construction Grammar: Syntactic Theory in Typological Perspective. Oxford: Oxford University Press. Dawkins, R. M. 1916. Modern Greek in Asia Minor: A Study of the Dialects of Sílli, Cappadocia and Phárasa with Grammar, Texts, Translations and Glossary. Cambridge: Cambridge University Press. Haspelmath, M. 2003. The geometry of grammatical meaning: semantic maps and cross-linguistic comparison. In M. Tomasello (Ed.), The New Psychology of Language, Volume 2. New York: Erlbaum, 211–243. Lestrade, S. 2010. The Space of Case. Doctoral dissertation. Radboud University Nijmegen. Nikitina, T. 2009. Subcategorization pattern and lexical meaning of motion verbs: a study of the source/goal ambiguity. Linguistics 47, 1113–1141. Rice, S. & K. Kabata. 2007. Cross-linguistic grammaticalization patterns of the allative. Linguistic Typology 11, 451–514. Sinha, C. & T. Kuteva. 1995. Distributed spatial semantics. Nordic Journal of Linguistics 18:2, 167–199. Tachibana, T. 1994. Syntactic structure of spatial expressions in the “Late Byzantine Prose Alexander Romance”. Propylaia 6, 35–51.

Rights, Rationality and Reproduction: Balancing Interests in the Abortion Debate

As medical technology has advanced, so too have our attitudes towards the level of control we can or should expect to have over our procreative capacities. This creates a multidimensional problem for the law and family planning services in terms of access to services – whether to avoid conception or terminate a pregnancy – and the negligent provision of these services. These developments go to the heart of our perception of autonomy. Unsurprisingly, these matters also raise a moral dilemma for the law. Distinctively, discourse in this area is dominated by assertions of subjective moral value; in relation to life, to personal choice and to notions of the archetypal family. Against this, I stress that a model of objective morality can answer these challenging questions and resolve the inherent problems of legal regulation. Therefore, I argue that notions of autonomy must be based on a rational, action-based understanding of what it means to be a ‘moral agent’. I claim that from this we might support a legal standard, based on objective rational morality, which can frame our constitutional norms and our conception of justice in these contentious areas. This paper claims that the current regulation of abortion is outdated and requires radical reform. It proposes a scheme that would shift the choice towards the mother (and the father), remove the unnecessarily broad disability ground and involve doctors having a role of counsel (rather than gatekeeper).

Task Competency in the Rights Analytic: Mental Health and the Justification for Rights and Duties

The paper concerns the moral status of persons for the purposes of rights-holding and duty-bearing. Developing from Gewirth’s argument to the Principle of Generic Consistency (PGC) and Beyleveld et al.’s Principle of Precautionary Reasoning, I argue in favour of a capacity-based assessment of the task competencies required for choice-rights and certain duties (within the Hohfeldian analytic). Unlike other, traditional, theories of rights, I claim that precautionary reasoning as to agentic status holds the base justification for rights-holding. If this is the basis for generic legal rights, then the contingent argument must be used to explain communities of rights. Much in the same way as two ‘normal’ adult agents may not have equal rights to be an aeroplane pilot, not all adults hold the same task competencies in relation to the exercise of the generic rights to freedom derived from the PGC. In this paper, I set out to consider the rights held by children, persons suffering from mental illness and generic ‘full’ agents. In mapping the developing ‘portfolio’ of rights and duties that a person carries during their life we might better understand the legal relations of those who do not ostensibly fulfil the criteria of ‘full’ agent.

Law, Rights and Reproduction: Reproductive Autonomy in Ethical Rationalism

As medical technology has advanced, so too have our attitudes towards the level of control we can expect to hold over our procreative capacities. This creates a multi-dimensional problem for the law in terms of access to services which prevent conception, access to services which terminate a pregnancy and recompensing those whose choices to avoid procreating are frustrated. These developments go to the heart of our perception of autonomy. In order to evaluate these three issues in relation to reproductive autonomy, I set out to investigate how the Gewirthian theory of ethical rationalism can be used to understanding the intersection between law, rights, and autonomy. As such, I assert that it is because of agents’ ability to engage in practical reason that the concept of legal enterprise should be grounded in rationality. Therefore, any attempt to understand notions of autonomy must be based on the categorical imperative derived from the Principle of Generic Consistency (PGC). As a result, I claim that (a) a theory of legal rights must be framed around the indirect application of the PGC and (b) a model of autonomy must account for the limitations drawn by the rational exercise of reason. This requires support for institutional policies which genuinely uphold the rights of agents. In so doing, a greater level of respect for and protection of reproductive autonomy is possible. This exhibits the full conceptual metamorphosis of the PGC from a rational moral principle, through an ethical collective principle, a constitutional principle of legal reason, a basis for rights discourse, and to a model of autonomy. Consequently, the law must be reformed to reflect the rights of agents in these situations and develop an approach which demonstrates a meaningful respect of autonomy. I suggest that this requires rights of access to services, rights to reparation and duties on the State to empower productive agency.