The doctrine of necessity and the detention and restraint of people with intellectual impairment: Is there any justification?

In Australia, the legal basis for the detention and restraint of people with intellectual impairment is ad hoc and unclear. There is no comprehensive legal framework that authorises and regulates the detention of, for example, older people with dementia in locked wards or in residential aged care, people with disability in residential services or people with acquired brain injury in hospital and rehabilitation services. This paper focuses on whether the common law doctrine of necessity (or its statutory equivalents) should have a role in permitting the detention and restraint of people with disabilities. Traditionally, the defence of necessity has been recognised as an excuse, where the defendant, faced by a situation of imminent peril, is excused from the criminal or civil liability because of the extraordinary circumstances they find themselves in. In the United Kingdom, however, in In re F (Mental Patient: Sterilisation) and R v Bournewood Community and Mental Health NHS Trust, ex parte L, the House of Lords broadened the defence so that it operated as a justification for treatment, detention and restraint outside of the emergency context. This paper outlines the distinction between necessity as an excuse and as a defence, and identifies a number of concerns with the latter formulation: problems of democracy, integrity, obedience, objectivity and safeguards. Australian courts are urged to reject the United Kingdom approach and retain an excuse-based defence, as the risks of permitting the essentially utilitarian model of necessity as a justification are too great.

Ethics of Justification : A Defence of Contractualism

In What We Owe to Each Other, T.M. Scanlon formulated a new version of the ethical theory called contractualism. This theory took reasons considerations that count in favour of judgment-sensitive attitudes to be the fundamental normative notion. It then used normative reasons to first account for evaluative properties. For an object to be valuable, on this view, is for it to have properties that provide reasons to have favourable attitudes towards the bearer of value. Scanlon also used reasons to account for moral wrongness. His contractualism claims that an act is morally wrong if it is forbidden by any set of moral principles that no one could reasonably reject. My thesis consists of five previously published articles which attempt to clarify Scanlon s theory and to defend it against its critics. The first article defends the idea that normative reason-relations are fundamental against Joshua Gert. Gert argues that rationality is a more basic notion than reasons and that reasons can be analysed in terms of their rationally requiring and justifying dimensions. The second article explores the relationship between value and reasons. It defends Scanlon s view according to which reasons are the more basic than value against those who think that reasons are based on the evaluative realm. The last three articles defend Scanlon s views about moral wrongness. The first one of them discusses a classic objection to contractualist theories. This objection is that principles which no one could reasonably reject are redundant in accounting for wrongness. This is because we need a prior notion of wrongness to select those principles and because such principles are not required to make actions wrong or to provide reasons against wrong actions. The fourth article explores the distinctive reasons which contractualists claim there are for avoiding the wrong actions. The last article argues against the critics of contractualism who claim that contractualism has implausible normative consequences for situations related to the treatment of different-sized groups of people.

Inductive reasoning in the justification of the result of adding two even numbers

In this paper we present an analysis of the inductive reasoning of twelve secondary students in a mathematical problem-solving context. Students were proposed to justify what is the result of adding two even numbers. Starting from the theoretical framework, which is based on Pólya’s stages of inductive reasoning, and our empirical work, we created a category system that allowed us to make a qualitative data analysis. We show in this paper some of the results obtained in a previous study.

DFT studies of long-chain FAMEs: theoretical justification for determining chain length and unsaturation from experimental Raman spectra

Density functional calculations, using B3LPY/6-31G(d) methods, have been used to investigate the conformations and vibrational (Raman) spectra of a series of long-chain, saturated fatty acid methyl esters (FAMEs) with the formula CH2nO2 (n = 5-21) and two series of unsaturated FAMEs. The calculations showed that the lowest energy conformer within the saturated FAMEs is the simple (all-trans) structure and, in general, it was possible to reproduce experimental data using calculations on only the all-trans conformer. The only exception was C6H12O2, where a second low-lying conformer had to be included in order to correctly simulate the experimental Raman spectrum. The objective of the work was to provide theoretical justification for the methods that are commonly used to determine the properties of the fats and oils, such as chain length and degree of unsaturation, from experimental Raman data. Here it is shown that the calculations reproduce the trends and calibration curves that are found experimentally and also allow the reasons for the failure of what would appear to be rational measurements to be understood. This work shows that although the assumption that each FAME can simply be treated as a collection of functional groups can be justified in some cases, many of the vibrational modes are complex motions of large sections of the molecules and thus would not be expected to show simple linear trends with changes in structure, such as increasing chain length and/or unsaturation. Simple linear trends obtained from experimental data may thus arise from cancellation of opposing effects, rather than reflecting an underlying simplicity.

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.