The best interest test is the legal mechanism which governs decision making on behalf of adults who lack the capacity to make their own health care treatment decisions. The test has attracted considerable criticism from health professionals, academics, judges and lawyers for being ill-defined and non-specific. The question of what is meant by 'best interests' remains largely unanswered. As a consequence, the test gives medical and legal decision makers considerable discretion to apply their personal value judgements within supposedly value-free philosophical frameworks - unreasoned and opaque decision making processes are the inevitable result. Because of the dominance of supposedly value-free philosophical frameworks, the place of values in decision making is not always fully understood. Reasoning is not possible without values, which stem from our emotions and passions, our upbringing, our religion, our cultures, our processes of socialisation and from our life experiences. Values help us make sense of our daily lives. I argue that law - like any other social institution - is essentially a human, values based construct. I put forward a theory of values-based law which argues for the recognition that laws, rules and conventions are based on, and contain, individual values. Currently, medical and legal decision makers justify grave decisions on behalf of society's most vulnerable citizens without revealing, or even acknowledging the values which drive and inform their decisions. Any opportunities to scrutinise or debate the values driving decisions are lost. Ultimately, values-based law argues that values underlying best interest determinations must be exposed to facilitate honest, transparent and fulsome decision making on behalf of adults who lack capacity. By applying the theory of values-based law, supposedly value-free decision making processes are exposed as insufficient to facilitate fulsome, honest and transparent legal reasoning.

The best interest test is the legal mechanism which governs decision making on behalf of adults who lack the capacity to make their own health care treatment decisions. The test has attracted considerable criticism from health professionals, academics, judges and lawyers for being ill-defined and non-specific. The question of what is meant by 'best interests' remains largely unanswered. As a consequence, the test gives medical and legal decision makers considerable discretion to apply their personal value judgements within supposedly value-free philosophical frameworks - unreasoned and opaque decision making processes are the inevitable result. Because of the dominance of supposedly value-free philosophical frameworks, the place of values in decision making is not always fully understood. Reasoning is not possible without values, which stem from our emotions and passions, our upbringing, our religion, our cultures, our processes of socialisation and from our life experiences. Values help us make sense of our daily lives. I argue that law - like any other social institution - is essentially a human, values based construct. I put forward a theory of values-based law which argues for the recognition that laws, rules and conventions are based on, and contain, individual values. Currently, medical and legal decision makers justify grave decisions on behalf of society's most vulnerable citizens without revealing, or even acknowledging the values which drive and inform their decisions. Any opportunities to scrutinise or debate the values driving decisions are lost. Ultimately, values-based law argues that values underlying best interest determinations must be exposed to facilitate honest, transparent and fulsome decision making on behalf of adults who lack capacity. By applying the theory of values-based law, supposedly value-free decision making processes are exposed as insufficient to facilitate fulsome, honest and transparent legal reasoning.

FREITAS, Willam Gerson de. A trajetória agônica do homem hobbesiano. 2011. 127f. – Dissertação (Mestrado) – Universidade Federal do Ceará, Programa de Pós-Graduação em Filosofia, Fortaleza (CE), 2011. / Submitted by Gustavo Daher (gdaherufc@hotmail.com) on 2017-09-14T12:12:02Z No. of bitstreams: 1 2011_dis_wgfreitas.pdf: 826946 bytes, checksum: 5f75218cf17963b0d3a5d7fd485b6ee2 (MD5) / Approved for entry into archive by Márcia Araújo (marcia_m_bezerra@yahoo.com.br) on 2017-09-14T14:33:03Z (GMT) No. of bitstreams: 1 2011_dis_wgfreitas.pdf: 826946 bytes, checksum: 5f75218cf17963b0d3a5d7fd485b6ee2 (MD5) / Made available in DSpace on 2017-09-14T14:33:04Z (GMT). No. of bitstreams: 1 2011_dis_wgfreitas.pdf: 826946 bytes, checksum: 5f75218cf17963b0d3a5d7fd485b6ee2 (MD5) Previous issue date: 2011 / The aim of this work is to discuss the concept of man on Thomas Hobbes in the three pillars that make up your theory: the state of nature, the contract and the State. First, it discusses the equality of men, the three causes of war of all against all, and how to understand the relationship between your theory and the historical moment in which he lived. Secondly, it is shown the concept of contract as a product of human capacity to transform the reality, and also the relationship between the mechanical and the moral, and the union of reason and passion in your anthropology. Finally, it analyzes the divine authority of the state and, because of this, the possibility of failure on the part of sovereign power with the rationale of the pact between individuals, which is the preservation of life. It intend to demonstrate that the seventeenth-century thinker sees the human condition as an agonizing journey, in which even the best guarantee of peace, the State, presents the possibility of serious drawbacks. / O objetivo deste trabalho é discutir a concepção de homem em Thomas Hobbes nos três pilares que compõe sua teoria: o estado natural, o contrato e o Estado. Em primeiro lugar, se analisa a igualdade entre os homens, as três causas da guerra de todos contra todos, e como compreender a relação entre a teoria do autor e o momento histórico em que ele viveu. Em segundo lugar, mostra-se a concepção de contrato como produto da capacidade humana de transformação da realidade e, ainda, a relação entre a mecânica e a moral, e a união de razão e paixões em sua antropologia. Por fim, destaca-se o Estado como detentor de uma autoridade divina e, em virtude disto, a possibilidade do descumprimento, por parte do poder soberano, com a razão de ser do pacto entre os indivíduos, a preservação da vida. Pretende-se demonstrar que o pensador seiscentista concebe a condição humana como uma trajetória agônica, na qual até mesmo a maior garantia de paz, o Estado, apresenta a possibilidade de sérios inconvenientes.

No description available.

O presente trabalho busca analisar as obras de Rousseau Discurso sobre a Origem e os fundamentos da desigualdade entre os homens (Segundo discurso) e Emílio ou da Educação de forma a apresentá-las como obras complementares no que se refere aos conceitos de Natureza e educação. A hipótese central repousa na ideia de que Rousseau encontra, no Segundo discurso, um problema no desenvolvimento social da humanidade e busca, a partir da construção de um homem adequadamente educado no Emílio, concertar o erro cometido pela espécie no passado. Essa leitura nos leva a compreensão de que existe uma natureza humana dada pela natureza e uma segunda natureza construída pelo homem, a qual deve ser construída de forma a não prejudicar a primeira. A pesquisa é bibliográfica com caráter teórico e, subsidiariamente histórico. Foram consideradas em especial as duas obras clássicas tomadas como objeto de estudo. / This study seeks to analyze the works of Rousseau\'s Discourse on the Origin and Foundations of inequality among men (Second Discourse) and Emile, or on Education in order to present them as complementary works in relation to the concepts of life and education. The central hypothesis rests on the idea that Rousseau finds in his Second Discourse an issue in the social development of mankind and seek, troughout the construction of a properly educated man Emile , to fix the error comitted by our species in the past. This reading leads us to understand that there is a human nature given by Nature and a second nature built by man, which must be constructed so as not to undermine the first. This paper is based on bibliographic research with theoretical foundation and historical elements. Especial consideration was given to the two classical works subject of this study.

O trabalho pretende demonstrar como Rousseau concebe a passagem do estado natural rumo à situação civil, tomando-se o corpo humano como uma perspectiva privilegiada para a descrição de tal processo. Nessa direção, serão assinaladas as consequências advindas ao homem nessa mudança, mostrando-se de que maneira, originariamente, ele é concebido, para ressaltar como o seu corpo, sua saúde e seu vigor são afetados. A partir dessa caracterização do homem no estado de natureza, tornar-se-á possível constatar a força ou a fraqueza do homem no estado civilizado, além do que foi acrescido ou subtraído em sua constituição original. Uma vez abandonada essa situação inicial, será ressaltada a importância do desenvolvimento de novas faculdades no homem, que lhe permitirão confeccionar ferramentas e facilitarão sobremaneira a sua subsistência, mas que trarão profundas consequências para o seu corpo e influirão decisivamente no surgimento de novas ideias. Igualmente novos sentimentos serão despertados e, com isso, o corpo será encarado de maneira diferente do seu semelhante daquele estado natural e esse quadro conduzirá ao aparecimento do estado civil. Finalmente inseridos nesse estado, importa expor como o pensador genebrino compreenderá o que seja um corpo político e a relação entre os homens e esse corpo maior do qual fazem parte. Assim, será estudado de que modo o comportamento dos indivíduos refletirá diretamente na própria manutenção do estado civil: serão analisadas as atividades propostas por Rousseau que, ao mesmo tempo em que conferem saúde e vigor aos corpos dos cidadãos, igualmente contribuirão de modo decisivo para a conservação (ou saúde) do próprio corpo político. / This work intends to demonstrate how Rousseau conceives the passage from the natural state to the civil situation, taking the human body as a privileged perspective to the description of such process. In this direction, the consequences of this change to man will be assigned, showing in which way he is originally conceived in order to point out how his body, his health and his strength are affected. By this characterization of the man in the state of nature, it will become possible to find the force or the weakness of the man in the civilized state and, besides, what was added to his original constitution or subtracted from it. Once abandoned this initial situation, it will be pointed out the importance of the development of new faculties in man, which will allow him to build tools and will much ease his subsistence, but will cause deep consequences to his body and will influence decisively in the arising of new ideas. New feelings will also arise and, with this, the body will be faced in a different way compared to his equal from that natural state and this situation will lead to the arising of the civil state. Finally inserted in this state, it is also important to expose how the genevian thinker will understand what a body politic is and the relationship between men and this bigger body where they are. Then, it will be studied in which way the behavior of individuals will directly reflect in the maintenance of the civil state itself: the activities proposed by Rousseau will be analyzed which, by the time they provide health and strength to the citizen\'s bodies, will also contribute in a decisive way to the conservation (or health) of the body politic itself.

Submitted by Filipe dos Santos (fsantos@pucsp.br) on 2018-01-23T11:29:49Z No. of bitstreams: 1 Robson Pedro Veras.pdf: 1363834 bytes, checksum: d7448ae6d41c0f941804deefe23eb480 (MD5) / Made available in DSpace on 2018-01-23T11:29:49Z (GMT). No. of bitstreams: 1 Robson Pedro Veras.pdf: 1363834 bytes, checksum: d7448ae6d41c0f941804deefe23eb480 (MD5) Previous issue date: 2017-12-08 / Coordenação de Aperfeiçoamento de Pessoal de Nível Superior - CAPES / The aim of this study is to demonstrate how the concept of freedom prescribed by Jean-Jacques Rousseau and Immanuel Kant moved from the state of nature to the civil state thus constituting certain ethics as heritage. The justification for this study is the premise of terms from the XVIII century on a certain modification in the philosophical locus referent to the form of perceiving freedom. The main issue so to speak here presented demonstrates a form of perception of the free man regarding their action. It is in the autonomy of the being who acts the Division between the primitive and the civil man. While the civil man acts moved by moral imperatives (categorical imperative), the natural man has their actions unfolded for their mere survival and because of this, among other possibilities, they can have fear as an inclination. Therefore, the result is pointed out as the prerogative that freedom in a civil state is prescribed as an apodictic flow of the general willingness which will invariably define the course of action of those who join the same society. The civil liberty abandons a puerile form of action and replaces it with the prerogative of protection of those who accept the guardianship of the State. Men now seek the collective well-being as the greater need in their actions / O objetivo desta pesquisa é demonstrar como o conceito de liberdade, prescrito por Jean-Jacques Rousseau e Immanuel Kant, ao transitar do estado de natureza para o estado civil teria constituído certa ética como herança dessa passagem. Este estudo se justifica pela premissa de termos no século XVIII certa modificação no locus filosófico referente à forma de percepção da liberdade. Por assim dizer, o problema central apresentado aqui demonstra a forma de percepção do homem livre no que tange sua ação. Está na autonomia do ser que age a cisão entre o ser primitivo e o civil. Enquanto o homem civil age movido por imperativos morais (imperativo categórico), o natural tem suas ações desdobradas em função de sua mera subsistência e por isso pode ter, dentre outras possibilidades, o medo como inclinação. Desse modo, aponta-se como resultado a condição de que a liberdade em estado civil ao ser prescrita como fluxo apodíctico da vontade geral definirá, invariavelmente, a forma de agir daqueles que se filiam à mesma sociedade. A liberdade civil abandona a forma pueril de ação do homem e a substitui pela prescrição da proteção daqueles que aceitam a tutela do Estado. O homem passa a buscar o bem-estar coletivo como pressuposto maior de suas ações

I defend Hobbes’ foundation for peace and property. His foundation for peace and property is his major argument for why society’s moral order (i.e. collection of rules of interaction) should be based on the principles of non-interference and exclusive use of material objects. His foundation is that in the absence of both a recognised moral order and government, it would be rational, or felicity maximising, for individuals to agree to a moral order constituted by peace and property. The cogency of his foundation depends on the accuracy of the second of the two steps of his state of nature thought experiment. In the first step, he formulates the state of nature by defining it as a social state of affairs with no government, by arguing that, as a consequence of there being no government, there would be no recognised moral order, and by assuming there would be relievable scarcity. In the second step, he theorises that interactions this anarchic state of affairs would be periodically violent. Also, the second step is informed by his theory of human nature, that is, his theory of the major characteristics common to all humans. Given that his foundation’s cogency is subject to the accuracy of the second step of his state of nature thought experiment and that the second step of his thought experiment is informed by his theory of human nature, my defence of his foundation involves arguments in favour of his theory of human nature, his state of nature, and his foundation. I first contend that the six characteristics that compose his theory of human nature are true. I next argue that the second step of his state of nature thought experiment – his theory that state of nature interactions would be periodically violent – is accurate. Lastly, I argue that his foundation is true, that it would be felicity maximising for individuals to agree to a moral order based on peace and property in the absence of government and a recognised moral order. To make my argument, I construct a hypothetical bargain between individuals in the state of nature where they choose between Hobbes moral order based on peace and property and the sort of moral order most contemporary political philosophers would propose as alternative (e.g. one based on general non-interference and a redistribution requirement) as their improvement over the state of nature. I argue that individuals would choose the former over the latter as their improvement because the former is purely mutually beneficial while the latter is only partly mutually beneficial.

I defend Hobbes’ foundation for peace and property. His foundation for peace and property is his major argument for why society’s moral order (i.e. collection of rules of interaction) should be based on the principles of non-interference and exclusive use of material objects. His foundation is that in the absence of both a recognised moral order and government, it would be rational, or felicity maximising, for individuals to agree to a moral order constituted by peace and property. The cogency of his foundation depends on the accuracy of the second of the two steps of his state of nature thought experiment. In the first step, he formulates the state of nature by defining it as a social state of affairs with no government, by arguing that, as a consequence of there being no government, there would be no recognised moral order, and by assuming there would be relievable scarcity. In the second step, he theorises that interactions this anarchic state of affairs would be periodically violent. Also, the second step is informed by his theory of human nature, that is, his theory of the major characteristics common to all humans. Given that his foundation’s cogency is subject to the accuracy of the second step of his state of nature thought experiment and that the second step of his thought experiment is informed by his theory of human nature, my defence of his foundation involves arguments in favour of his theory of human nature, his state of nature, and his foundation. I first contend that the six characteristics that compose his theory of human nature are true. I next argue that the second step of his state of nature thought experiment – his theory that state of nature interactions would be periodically violent – is accurate. Lastly, I argue that his foundation is true, that it would be felicity maximising for individuals to agree to a moral order based on peace and property in the absence of government and a recognised moral order. To make my argument, I construct a hypothetical bargain between individuals in the state of nature where they choose between Hobbes moral order based on peace and property and the sort of moral order most contemporary political philosophers would propose as alternative (e.g. one based on general non-interference and a redistribution requirement) as their improvement over the state of nature. I argue that individuals would choose the former over the latter as their improvement because the former is purely mutually beneficial while the latter is only partly mutually beneficial.

This study mainly investigates the reason of living in civil society, the motives of people to live under the government and necessity of commonwealth by design to live in peace based on modern social contract theories of Hobbes and Locke. Hobbes has a decisive role for developing a western political thought and Locke goes a step further to put superiority of the community and latitude of thought in his theory. In order to examine these topics, similarities of both philosophers in terms of their effort on setting free political thoughts from medieval world view, and their differentiations regarding considerations on human nature, desires and rights of men, formation of the society and the role of government are focused on.