Syllabus

Reading

Assignments

Of all the fields of philosophy, this course focuses on ethics. Of all the topics in ethics, it focuses on consent and coercion. The overall question of the course is when (or whether) it is wise to help people against their will, or to coerce them for their own good. We will look at the operation of this kind of coercion in law, medicine, and education. How far does one have a right to harm oneself, to be different, or to be wrong? To what extent should people be free to do what they want if others are not harmed? When do we think clearly and wisely enough, and when are we sufficiently free of duress and indoctrination, to be left to follow our own judgment, and when should we be restrained by others? Who should restrain whom, and when?

We'll see what philosophers do by seeing how philosophers have answered these questions. We'll become philosophers ourselves by trying to work out answers for ourselves that we can live with.

In addition to philosophical writings, we'll read some important legal cases in which these questions have arisen. When we read legal cases, our primary interest is not to learn (like students of law) what position our legal system has taken on these issues, but to decide (like students of ethics) what position it ought to take.

Our objective is to seek the moral principles that ought to guide our conduct, to discern the moral questions at stake in real-world settings, to respect the complexity of moral life, to learn from our authors and one another how to reflect deeply and rigorously about ethics, to think about what it means to live a good life, and to practice joining theory and practice.

The reading for the course consists of a few hand-outs and the following books:

1. John Stuart Mill, On Liberty, Hackett Pub. Co., 1978 (original 1859).
2. Gerald Dworkin (ed.), Morality, Harm, and the Law, Westview Press, 1994.
3. Terrence Ackerman and Carson Strong (eds.), A Casebook of Medical Ethics, Oxford University Press, 1989.
4. Rosalind Ekman Ladd, Children's Rights Re-Visioned, Wadsworth Pub. Co., 1996.

I've created a course home-page at http://www.earlham.edu/~peters/courses/consent/conshome.htm and a collection of course-related web links at http://www.earlham.edu/~peters/courses/consent/conslink.htm.

Reading

Works and pages cited for a given day will be discussed or presupposed that day in class and should have been read in advance. Assignments listed for a given day (in red) are due at class time.

Week 1. January 13-17

• Tue: no class
• Thu: first class; no reading due; introductories

Week 2. January 20-24

• Tue: In the matter of Seiferth (hand-out)
• Thu: Mill, Chapter 1 (pp. 1-14)

Week 3. January 27-31

• Tue: Mill, Chapter 2 (pp. 15-52)
• Thu: Mill, Chapter 3 (pp. 53-71); small groups

Week 4. February 3-7

• Tue: Mill, Chapter 4 (pp. 73-91)
• Thu: Mill, Chapter 5 (pp. 93-113)
  • Short Mill paper due

Week 5. February 10-14

• Tue: Devlin hand-out; model legislation hand-out
• Thu: Devlin, cont.; Bowers v. Hardwick (hand-out); small groups

Week 6. February 17-21

• Tue: Feinberg I (hand-out); Blackmail unit in Dworkin (pp. 162-169)
• Thu: Dworkin I (hand-out), Dworkin II (hand-out)

Week 7. February 24-28

• Tue: Wikler I (hand-out), Wikler II (hand-out)
• Thu: Rescue Doctrine in Dworkin (pp. 134-144); small groups (pick model legislation topics)
  • Model legislation topics due, noon

Week 8. March 3-7

• Tue: Community Standards in Dworkin (pp. 176-195), including Barnes v. Glen Theatre and Texas v. Johnson
• Thu: American Booksellers Assn v. Hudnut and Lorenne Clark on "Liberalism and Pornography" (hand-outs)

Week 9. March 10-14

• Tue: The Velma Howard story and Washington v. Glucksberg (hand-outs)
• Thu: oral argument: Vacco v. Quill
  • Short paper due, from all students except Vacco advocates

Week 10. March 17-21

• Tue: No class, spring break
• Thu: No class, spring break

Week 11. March 24-28

• Tue: Ackerman and Strong, pp. 3-22
• Thu: Ackerman and Strong, pp. 22-44; small groups

Week 12. March 31 - April 4

• Tue: Ackerman and Strong, pp. 89-97, 106-130
• Thu: Buchanan, "Limits of Proxy Decision Making" (hand-out)

Week 13. April 7-11

• Tue: Sartorius (hand-out), Buchanan, "Medical Paternalism" (hand-out)
• Thu: oral argument: Dax Cowart (on CD-ROM on reserve in library)
  • Short paper due, from Vacco advocates and all students not participating in any oral argument

Week 14. April 14-18

• Tue: Brock in Ladd (pp. 184-200), Schoeman in Ladd )pp. 201-214)
• Thu: Henley, "The Authority to Educate" (hand-out); small groups

Week 15. April 21-25

• Tue: Wisconson v. Yoder (hand-out)
• Thu: no class; I'll be out of town; but please read LaFollette in Ladd (pp. 159-169)

Week 16. April 28 - May 2

• Tue: oral argument: Mozert v. Hawkins City Board of Education
  • Evaluation form due before next class
• Thu: last class; no reading due; oral evaluation
  • Model legislation due

Week 17. May 5-9

• Tue: No class but...
  • Final paper due, noon

Assignments

Title	Due Date	Weight	Short Description
Mill paper	February 6	15%	3-5 pages. Ask a question, reconstruct Mill's answer and argument, then assess the adequacy of his answer and argument. Details.
Oral argument	March 13, April 10, or April 29	15%	Argue (on a team) for one side of one of our three major cases, like a lawyer before the Supreme Court. Details.
Short paper	March 13, April 11	15% each	4-6 pages. Decide a paternalism case from the news or history. Everyone writes at least one. Those not participating in oral argument write two. Details.
Evaluation form	April 30	0%	Due any time before the last day of class. Use the hardcopy form I will hand out or print yourself a copy of the online version.
Model legislation	May 1	15%	Write the law as it ought to be on some topic related to paternalism. Collaborative project with your discussion group. Topics due February 27. Details.
Long paper	May 6	25%	7-10 pp. "17 week take-home final exam." Details.
Participation	Daily	15%	Attendance plus helpful, voluntary participation in every discussion. Includes participation in discussion groups and electronic discussion.
You must submit all assigned work to pass the course.

Mill paper

Ask a single, sharp question about one of the issues Mill discusses; give his answer; then evaluate the strengths and weaknesses of his answer. For more details on the assignment, see my essay assignment hand-out.

Short paper

Write a judgment on how a real case should come out. Find a paternalism case from the news or history (using the internet, the library, or our assigned texts). Avoid cases from your own experience and the three cases set for oral argument. Decide which side should prevail and defend your judgment with very specific, very cogent arguments. Do not base your judgment on what you think or know the law to be; base your judgment on what the law ought to be. The paper should make very clear whether paternalism is justified in circumstances like those in your case, and why or why not.

1. State the relevant facts briefly. Do so in such a way that both sides would accept your account as a fair one. Cite your sources for the facts.
2. State the question presented by the case in your own words.
3. Decide the case, that is, answer the question. Tell us very directly very quickly what your judgment is, and spend the rest of the paper justifying your judgment.
4. Support your decision with argument.
5. Imagine and state the strongest objections that could be made to your position, and the arguments behind those objections. (Two or three objections, with their arguments, should be enough.) State the objections and arguments in such a way that their real proponents would accept your account as a fair one.
6. Answer the objections and their arguments.
7. Number your sections 1-6 so I can find them. If you like, separately number the various objections and their answers, for example, 5.A and 6.A, then 5.B and 6.B, etc.

Write at least three pages of analysis and argument after you state the relevant facts. You can write more than this if you wish, but it is not at all necessary.

If you participate in an oral argument, then you'll write one of these papers; otherwise you'll write two.

Tip: This isn't an exercise in making up your mind, although it works that way too. It's an exercise in writing fair and persuasive arguments. Nearly all of your grade will depend on the quality of your supporting arguments.

Oral Argument

Three times in the semester we will recreate the oral arguments and courtroom drama of a major legal case on consent and paternalism. You will participate on one side of one of these reenactments.

In each oral argument, each side will have 20 minutes to present its case. Fill these 20 minutes with concise and convincing arguments. Time left over after both sides have finished will be devoted to questions from the floor and general discussion. I will be Judge, but only to facilitate the debate. The whole class will be Judge in the sense we'll conclude each case with a vote. As in real courts, judges may not abstain. Judges have a right to ask questions and a responsibility to be at least as well prepared as the advocates. (Hence, each case is required reading for the whole class, not just for those conducting the oral arguments.)

Don't use legal arguments. That would presuppose more knowledge of law than we have time to cover in this course; and even if we were all lawyers, it would miss the point. This is an ethics course in which we care what the law is only in order to help us think about what the law ought to be. Therefore, use moral arguments, not legal arguments. Show us which side should prevail if we did things as we should.

Participation on a given side of a given case will be first-come, first-served. Sign up with me as soon as you have a preference. The sooner you decide, the better is your chance to get that slot, and the better you can get to know your co-counsel and prepare a good case.

The first and third of our cases, Vacco and Mozert are online. The second, Dax Cowart, is presented interactively on a CD-ROM on reserve in Lilly Library. If you can become at least somewhat familiar with these cases early in the semester, then you can make an intelligent decision about which one to argue, and on which side.

Wes Miller in the Media Resource Center will videotape the oral arguments. If you want to see one of these tapes later, request it from Media Resources by date.

Long paper

This paper should answer the overall question addressed by the course: when, if ever, is paternalism justified? You've read about it. You've thought about it. Now answer it and defend your answer. Your answer should be specific enough to help us decide cases, and should deal with a few to show us how. Aim for at least seven pages.

Paternalism raises issues across a very wide territory, and you needn't cover the whole territory in your paper. But try to give us guidance in these three areas: (1) criminal law, (2) medicine, and (3) education and/or socialization of children. If you are willing to do some library research, you can limit your paper to one of these three areas. Talk to me individually before taking advantage of this option.

If you rely on particular definitions of harm, consent, coercion, competency, paternalism, persuasion, personhood, or other key terms, make sure you supply and defend them.

Of the general grading criteria in my essay assignment hand-out I will look most for directness of answer, clarity of writing, and rigor of argument. In addition to the general criteria, I will look for:

1. specificity in the articulation of circumstances (if any) that justify paternalism,
2. sensitivity to the complexities of moral life, and
3. responsiveness to arguments for opposing positions, or to objections to your own position, that you may find in Mill, other readings from the course, our cases, your friends, or the library.

I deliberately give you the topic for the long paper at the beginning of the term so that you can think about it, take notes, digest the issues, and work through the difficulties throughout the term. Take advantage of this time. Don't write something half-baked in the last week. Let each of your readings and conversations influence your thinking, revise your early notions, and add nuance to your growing conclusion. Take notes toward the paper even if (at the time) you have no idea how you will resolve certain difficulties. Think of this as a 17-week take-home final exam.

For this, as well as the short papers, see my generic hand-out for details on paper mechanics, lateness, rewrites, and the option of having me grade your paper on tape.

If you submit a self-addressed, stamped envelope with your final paper, then I will mail it to you after I grade it. If you only have your campus mail box number on the paper, then I will mail it to your campus box.

Discussion Groups

On selected days throughout the semester we will convene in the main class room for 10-30 minutes of regular class and then break up into small discussion groups for the remainder of our 80 minute class session.

I will suggest some topics for discussion in the main room before we break into groups. But on most days you will be free to discuss any question or topic arising from the course. Each group is responsible for the content and quality of its discussions. When I visit the groups I will be a silent spectator and auditor (most of the time), not a discussion leader.

One member of each group will serve as a Recording Clerk and make a record of the discussion to hand in to me after class. The responsibility of Clerk will rotate in each group, by any method the group selects. Whether a group wants a rotating convener as well is its own decision.

Attendance at discussion groups is as important to the course as attendance at lectures. Participation there might even be more important. Note that part of your grade depends on participation.

I hope to make use of electronic discussion to continue and deepen our in-class discussions. I've set up an email list for this course. If you send an email to the list, then everyone in class receives a copy automatically. To use the list, simply send email to consent or consent@earlham.edu. For answers to common questions about using such a list, see my electronic discussion hand-out.

Model Legislation

In Week 7, each discussion group will pick a topic related to consent or paternalism on which to write a model statute. If you don't like the law on some subject related to our course, then this is your chance to "do it right" for a change. I will hand out a description of the assignment and some suggested topics by Week 5. Your group should start to work as soon as it has picked a topic.

At the end of the semester, please turn in two copies of your legislation, one for me to read and one to put on reserve in the library for the rest of you to read. Also make sure that each member of the group has a copy. You can skip the reserve copy, and all the member copies, if you put your legislation on the web.

I'll say more about this assignment in a separate hand-out and in class.

Relevant Books

These are not the only books that you might find useful, interesting, or relevant to the course, but they're good places to start a semester's exploration. I include the call numbers when I'm aware that we have a copy in Lilly Library.

Airaksinen, Timo. Ethics of Coercion and Authority: A Philosophical Study of Social Life. University of Pittsburgh Press, 1988. HM/271/A4.3/1988.

Archard, David. Sexual Consent. Westview Press, 1998.

Arons, Stephen. Compelling Belief: The Culture of American Schooling. University of Massachusetts Press, 1983. LC/72.2/A7.6/1986.

Bandman, Bertram. Children's Rights to Freedom, Care, and Enlightenment. Garland, 1999.

Bromley, David G., and James Richardson (eds.). The Brainwashing-Deprogramming Controversy. Edwin Mellen Press, 1983. BF/633/B7.3/1983.

Buchanan, Allen, and Dan Brock. Deciding for Others: The Ethics of Surrogate Decision-making. Cambridge University Press, 1990. R/724/.B83/1989.

Charlton, William. Weakness of Will. Basil Blackwell, 1988. BJ/1468.5/C4.3/1988.

Childress, James. Who Should Decide? Paternalism in Health Care. Oxford University Press, 1982. R/725.5/.C48/1982.

Christman, John (ed.). The Inner Citadel: Essays on Individual Autonomy. Oxford University Press, 1989. B/808.67/I5.6/1989.

Dank, Barry M., and Roberto Refinetti (eds.). Sexual Harassment and Sexual Consent. Transaction Publishers, 1998.

Devlin, Patrick. The Enforcement of Morals. Oxford University Press, 1965. BJ/55/D4.

Dworkin, Gerald. The Theory and Practice of Autonomy. Cambridge University Press, 1988. BJ/1031/D8.6/1988.

Edwards, Rem B. (ed.). Psychiatry and Ethics: Insanity, Rational Autonomy, and Mental Health Care. Prometheus Books, 1984. RC/455.2/E8/p8/1982.

Faden, Ruth R., and Tom L. Beauchamp, with Nancy M.P. King. A History and Theory of Informed Consent. Oxford University Press, 1986. K/3611/.I5/F33.

Feinberg, Joel. The Moral Limits Of The Criminal Law, Oxford University Press, 1984-1988. Vol. I: Harm to Others (1984); Vol. II: Offense to Others (1985); Vol. III: Harm to Self (1986); Vol. IV: Harmless Wrongdoing (1988). K/5018/F4.4/1984/v.1-4.

Galanter, Marc. Cults, Faith, Healing, and Coercion. Oxford University Press, 1989. BP/603/.G35/1989.

Gaylin, Willard, and Bruce Jennings. The Perversion of Autonomy: The Proper Uses of Coercion and Constraints in a Liberal Society. The Free Press, 1996. [Currently on order; if it's not yet in Lilly, it will be soon.]

Gray, John. Mill on Liberty: A Defence. Routledge & Kegan Paul, 1983. JC/585/M7.5/G7.2.

Griffiths, A. Phillips (ed.). Of Liberty. Cambridge University Press, 1983. (Essays on Mill and his themes.) HM/271/.033/1983.

Hart, H.L.A. Law, Liberty and Morality. Stanford University Press, 1963. BJ/55/H3.

Haworth, Lawrence. Autonomy: An Essay in Philosophical Psychology and Ethics. Yale University Press, 1986. BF/575/A8.8/H3.8.

Hodson, John D. The Ethics of Legal Coercion. D. Reidel, 1983. K/250/H6.3/1983.

Humboldt, Wilhelm von. The Limits of State Action. Liberty Fund, 1969 (original 1852).

Jackman, Mary R. The Velvet Glove: Paternalism and Conflict in Gender, Class, and Race Relations. University of California Press, 1994.

Jordan, Shannon M. Decision Making for Incompetent Persons: The Law and Morality of Who Shall Decide. Charles C. Thomas, 1985. R/725.5/J6.7/1985.

Katz, Jay. The Silent World of Doctor and Patient. Free Press, 1984. R/727.3/.K34/1984.

Kittrie, Nicholas B. The Right to be Different: Deviance and Enforced Therapy. Johns Hopkins University Press, 1971. KF/3828/K5.8.

Lindley, Richard. Autonomy. Humanities Press, 1986. JC/571/L5.55/1986.

Martin, Mike W. Self-Deception and Morality. University Press of Kansas, 1981. BJ/1429.3/M3.7/1986.

Meyers, Diana T. Self, Society and Personal Choice, Columbia University Press, 1992. B/808.67/M4.9/1984.

Mead, Lawrence M. (ed.). The New Paternalism: Supervisory Approaches to Poverty. Brookings Institution Press, 1997.

Pennock, J. Roland, and John W. Chapman (eds.). Coercion. Aldine Atherton, Inc., 1972. HM/271/P4.4.

Rees, John Collwyn. John Stuart Mill's On Liberty. Oxford University Press, 1986. JC/585/M7.5/R4.4/1985.

Ritchie, David George. The Principles of State Interference: Four Essays on the Political Philosophy of Mr. Herbert Spencer, J.S. Mill, and T.H. Green. Scribner's Sons, 1902. JC/571/R6/1920.

Rosenbaum, Alan S. Coercion and Autonomy: Philosophical Foundations, Issues, and Practices. Greenwood Press, 1986. HM/271/R6.4/1986.

Schoeman, Ferdinand David (ed.). Philosophical Dimensions of Privacy: An Anthology. Cambridge University Press, 1984. JC/596/P4.7/1984.

Schonsheck, Jonathan. On Criminalization: An Essay in the Philosophy of the Criminal Law. Kluwer Academic Publishers, 1994. K/5018/S3.6/1994.

Schulhofer, Stephen J. Unwanted Sex:  The Culture of Intimidation and the Failure of Law. Harvard University Press, 1998.

Stephen, James FitzJames. Liberty, Equality, Fraternity. Henry Holt, 1882. (Original 1874.) JC/571/S8.

Ten, C.L. Mill on Liberty. Oxford University Press, 1980. JC/223/M6.6/T4.5

VanDeVeer, Donald. Paternalistic Intervention: The Moral Bounds on Benevolence. Princeton University Press, 1986. BJ/1533/R4.2/V3.6.

Wear, Stephen. Informed Consent: Patient Autonomy and Clinician Beneficence Within Health Care. Georgetown University Press, 2d. ed., 1998.

Wertheimer, Alan. Coercion. Princeton University Press, 1987. KF/450/.D85/W47.

Wertheimer, Alan. Exploitation. Princeton University Press, 1996.

White, Becky Cox. Competence to Consent. Georgetown University Press, 1994.

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