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.

Introduction: the impact of the 'War on Terror' on executive–legislative relations: a global perspective

In democratic polities, constitutional equilibria or balances of power between the executive and the legislature shift over time. Normative and empirical political theorists have long recognised that war, civil unrest, economic and political crises, terrorist attacks, and other events strengthen the power of the executive, disrupt and threaten constitutional politics, and damage democratic institutions: crises require swift action and executives are thought to be more capable than parliaments and legislatures of taking such actions. The terrorist attacks on New York and Washington on 11 September 2001 and the ensuing so-called 'war on terror' declared by President Bush clearly constituted a crisis, not only in the United States but also in other political systems, in part because of the US's hegemonic position in defining and shaping many other states' foreign and domestic policies. Dicey, Schmitt, and Rossiter suggest that critical events and political crises inevitably trigger the concentration of (emergency) powers in the hands of the executive. Aristotle and Machiavelli questioned the inevitability of this process. This article and the articles that follow in this Special Issue utilise empirical evidence, through the use of case studies of the United States, the United Kingdom, Russia, Australia, Israel, Italy and Indonesia, to address this debate. Specifically, the issue explores to what extent the external shock or crisis of 9/11 (and other terrorist attacks) and the ensuing 'war on terror' significantly changed the balance of executive-legislative relations from t (before the crisis) to t+1 (after the crisis) in these political systems, all of which were the targets of actual or foiled terrorist attacks. The most significant findings are that the shock of 9/11 and the 'war on terror' elicited varied responses by national executives and legislatures/parliaments and thus the balance of executive-legislative relations in different political systems; that, therefore, executive-legislative relations are positive rather than zero-sum; and that domestic political contexts conditioned these institutional responses.

Impact of energy-using product policies

Energy-using products (EuPs), such as domestic appliances, audio-visual and ICT equipment contribute significantly to CO2 emissions, both in the domestic and non-domestic sectors. Policies that encourage the use of more energy efficient products can therefore generate significant reductions in overall energy consumption and hence, CO2 emissions. To the extent that these policies cause an increase the average production cost of EuPs, they may impose economic costs on producers, or on consumers, or on both. In this theoretical paper, an adaptation of a simple vertical product differentiation model – in which products are characterised in terms of their quality and their energy consumption – is used to analyse the impact of the different EuP polices on product innovation and to assess the resultant economic impacts on producers and consumers. It is shown that whereas the imposition of a binding product standard for energy efficiency unambiguously reduces aggregate profit and increases the average market price in the absence of any learning effects, the introduction or strengthening of demand-side measures (such as energy labelling) may reduce, or increase, aggregate profit. Even in the case where the overall impact is unambiguously negative, the effects of product innovation and learning can be in either direction.

Product innovation and the costs of energy-using product policies

Energy-using Products (EuPs) contribute significantly to the United Kingdom’s CO2 emissions, both in the domestic and non-domestic sectors. Policies that encourage the use of more energy efficient products (such as minimum performance standards, energy labelling, enhanced capital allowances, etc.) can therefore generate significant reductions in overall energy consumption and hence, CO2 emissions. While these policies can impose costs on the producers and consumers of these products in the short run, the process of product innovation may reduce the magnitude of these costs over time. If this is the case, then it is important that the impacts of innovation are taken into account in policy impact assessments. Previous studies have found considerable evidence of experience curve effects for EuP categories (e.g. refrigerators, televisions, etc.), with learning rates of around 20% for both average unit costs and average prices; similar to those found for energy supply technologies. Moreover, the decline in production costs has been accompanied by a significant improvement in the energy efficiency of EuPs. Building on these findings and the results of an empirical analysis of UK sales data for a range of product categories, this paper sets out an analytic framework for assessing the impact of EuP policy interventions on consumers and producers which takes explicit account of the product innovation process. The impact of the product innovation process can be seen in the continuous evolution of the energy class profiles of EuP categories over time; with higher energy classes (e.g. A, A+, etc.) entering the market and increasing their market share, while lower classes (e.g. E, F, etc.) lose share and then leave the market. Furthermore, the average prices of individual energy classes have declined over their respective lives, while new classes have typically entered the market at successively lower “launch prices”. Based on two underlying assumptions regarding the shapes of the “lifecycle profiles” for the relative sales and the relative average mark-ups of individual energy classes, a simple simulation model is developed that can replicate the observed market dynamics in terms of the evolution of market shares and average prices. The model is used to assess the effect of two alternative EuP policy interventions – a minimum energy performance standard and an energy-labelling scheme – on the average unit cost trajectory and the average price trajectory of a typical EuP category, and hence the financial impacts on producers and consumers.

The resilience of democratic institutions in Britain, Australia and the United States under conditions of total war

To what extent are democratic institutions resilient when nation states mobilise for war? Normative and empirical political theorists have long argued that wars strengthen the executive and threaten constitutional politics. In modern democracies, national assemblies are supposed to hold the executive to account by demanding explanations for events and policies; and by scrutinising, reviewing and, if necessary, revising legislative proposals intended to be binding on the host society or policies that have been implemented already. This article examines the extent to which the British and Australian parliaments and the United States Congress held their wartime executives to account during World War II. The research finds that under conditions approaching those of total war, these democratic institutions not only continued to exist, but also proved to be resilient in representing public concerns and holding their executives to account, however imperfectly and notwithstanding delegating huge powers. In consequence, executives—more so British and Australian ministers than President Roosevelt—were required to be placatory as institutional and political tensions within national assemblies and between assemblies and executives continued, and assemblies often asserted themselves. In short, even under the most onerous wartime conditions, democratic politics mattered and democratic institutions were resilient.

Troubled waters: an institutional analysis of ageing Dutch and American waterway infrastructure

Waterways are one of the oldest systems for the transportation of cargo and continue to play a vital role in the economies of some countries. Due to societal change, climate change and the ageing of assets, the conditions influencing the effective functioning of these systems seem to be changing. These changing conditions require measures to renew, adapt or renovate these waterway systems. However, measures with the sole aim of improving navigation conditions have encountered resistance, as the general public, and stakeholders in particular, value these waters in many more ways than navigation alone. Therefore, a more inclusive, integrated approach is required, rather than a sectoral one. Addressing these contemporary challenges requires a shift in the traditional waterway authorities' regimes. The aim of this study is to identify elements in the institutional setting where obstacles and opportunities for a more inclusive approach can be found. Two major waterway systems, the American and the Dutch, have been analyzed using the Institutional Analysis and Development framework to reveal those obstacles and opportunities. The results show that horizontal coordination and a low pay-off for an inclusive approach is particularly problematic. The American case also reveals a promising aspect – mandatory local co-funding for federal navigation projects acts as a stimulus for broad stakeholder involvement. Improving horizontal coordination and seizing opportunities for multifunctional development can open pathways to optimize the value of waterway systems for society.