Popular minimalist and moderate liberal interpreters suggest that, both in the 1780s and in the more fully developed political works of the 1790s, Kant adopts a narrow and skeptical approach to state-sponsored efforts addressing social welfare. Interpreted with due attention to context, however, relevant passages from Kant’s 1784 lectures in political philosophy—the Naturrecht Feyerabend—suggest no necessarily narrow commitments in the realm of social supports. Read in conjunction with his Feyerabend discussion of innate right, meanwhile, the contemporaneous essay on enlightenment provides us reasons (including an active conception of civic agency and a positive understanding of the state’s role) to conclude that the account of justice that Kant’s early works advance indeed could support a rich menu of such programs. Publications from the 1790s might, of course, take a contrary stance. It falls to those who favor a more conservative reading, however, to prove that Kant altered an earlier, agency-oriented position friendly to state-sponsored supports.

Addresses the doctor–patient relationship in the context of historical and current considerations of psychiatric authority as well as patient self-determination and loss of mental capacity. Develops a model of the doctor–patient relationship in terms of mental capacity and identifies associated negative and positive psychological processes. Views change and adaptability as both realities and sources of hope. Suggests that the pre-modern Hippocratic relationship is now unworkable and that the doctor–patient relationship in the modern state is out of equilibrium whilst still at the heart of care. Recommends that better understanding the doctor–patient relationship within the modern state is a priority for psychiatric ethics.

Nearly fifty years have passed since the federal government adopted its policy of tribal self-determination, and tribes remain subject to extensive federal regulations. For example, the United States still holds land in trust for tribes. The federal government holds title to trust land, so tribes and Indians cannot engage in activities on trust land without prior federal approval. Obtaining the requisite federal approval can take more than a year. Apart from the bureaucracy, trust land is inalienable, making it difficult to use for collateral. Indian trader laws are another uniquely Indian country regulation. The laws were originally enacted in 1790 on the theory Indians were too incompetent to trade with whites. To this day, the laws forbid “white persons” from trading with an Indian without first obtaining federal permission. The federal regulations extend to virtually all economic activity in Indian country, from natural resource development to Indian gaming.

Americans remained hungry for tribal land, and Congress’s newly discovered plenary power enabled Congress to enact the General Allotment Act of 1887 (GAA). The GAA was designed to open tribal lands to white settlement and convert Indians into farmers. To do this, Indian head of households were given 160-acre parcels of land. The land was placed in trust for twenty-five years. At the period’s conclusion, Indians were supposed to become American citizens. Lands remaining after Indians received their 160-acre parcels were opened to white settlement. Tribes resisted allotment; however, the Supreme Court ruled Congress possessed “paramount power over the property of Indians.” The federal government’s efforts to assimilate Indians included removing Indian children from their parents and sending them to distant boarding schools. Boarding schools were intended to “Kill the Indian in him, and save the man.”

As the United States expanded west, it encountered the tribes of the Great Plains. Many of these tribes had military cultures. Their warriors were skilled with the horse and gun, making them formidable foes. Unable to defeat them militarily, the United States slaughtered their primary food source – the buffalo. Lack of food forced warriors to lay down their arms and agree to life on reservations. On reservations, tribes were supposed to be able to self-govern, but the federal government exerted extreme control over tribes. When the Supreme Court ruled intratribal crimes were beyond the United States jurisdiction, Congress enacted the Major Crimes Act (MCA). The MCA allowed the United States to prosecute Indians for committing crimes against another Indian while on a reservation. Although the Supreme Court acknowledged that no constitutional provision enabled Congress to pass the law, the Court held Congress could enact the law because Indians were “the wards of the nation.”

While the federal government has adopted a policy of tribal self-determination, paternalism remains. The Moapa Band of Paiute Indians’ attempt to open a brothel is a prime example. Prostitution is legal in the surrounding state of Nevada; nevertheless, the Secretary of the Interior prohibited the tribe from doing so despite acknowledging it “is a profitable economic enterprise for non-Indians.” Though the federal government was supposed to ensure the Navajo Nation received a fair return on its natural resources, the United States Secretary of the Interior assisted in a private company in swindling the Navajo Nation. Similarly, the United States mismanaged Indian assets for more than a century. When Eloise Cobell sued the United States, the United States removed a federal judge who was ruling in favor of the Indian plaintiffs. The case was settled soon after. Additionally, the National Labor Relations Board imposes regulations on tribes that it does not impose on other governments. The United States also prohibits tribes from accessing the bonds other governments use to fund infrastructure projects.

Chapter 3 discusses the concepts of discrimination, sexism and childism. It firstly presents the concept of discrimination under international law. Secondly, it explores the notions of sexism and ‘childism’. It discusses paternalism, child liberationism and the challenge of protecting the girl child while promoting her autonomy rights. It studies theories concerning the interests of children as well as the common vulnerability approach, Arnstein and Hart’s ladder of participation, and the possibility of granting autonomy rights to girls at adolescence. Thirdly, it examines the public/private divide at the international and domestic levels and how it impacts the girl child globally. Chapter 3 thereafter explores the notions of universalism and cultural relativism, as well as the evolving meaning of culture, and their significance for the girl child. In this context, the chapter also analyzes the conceptual division between the Global South and the Global North.

The All-Affected Principle (AAP) in democratic theory holds that everyone who is affected by a decision has a claim to participate in making that decision. Authors who invoke the principle usually restrict its scope and argue only for enfranchising affected interests within formal political decision-making procedures. In other words, the AAP would expand the demos (e.g. by including people affected by decisions taken in other countries), but need not expand the sites of formal politics to which democratic norms apply. Against these scope restrictions, we argue that the AAP applies to some extra-governmental actors and, in particular, to big philanthropists. We make this argument without endorsing an expansive reading of the AAP as applying to all kinds of decisions, public and private. Rather, we argue that the reasons we have for endorsing the AAP—for thinking that it is wrong for people to be denied influence over exercises of power that affect them—do not pick out formal political decision-making as a uniquely important site of inclusion. We also challenge, on anti-paternalist grounds, the assumption that it is primarily the risk of negative impacts that grounds claims to inclusion.

This chapter will explore how the provisions governing best interests assessments ought to be reformed so as to better ensure that an agent’s authentic desires are being prioritised in decisions being taken about them. The starting point should be that the assessor ascertains ‘so far is reasonably practicable’ the individual’s wishes, feelings, beliefs, and values. This should then be supplemented by a presumption that the agent’s wishes and feelings will be determinative of what is in their best interests, except when giving effect to them will expose the person to a risk of significant harm. Even where the harms are significant, however, there will still be occasions where the agent’s wishes and feelings should nonetheless take precedence; where to do otherwise would involve frustrating their deeply and authentically held beliefs, values, or commitments. This chapter will highlight some of the potential considerations which ought to guide assessors in these circumstances. It will propose that assessors be provided with a list of factors that they must take into account when determining the degree of weight to be ascribed to the agent’s wishes, which reflect these considerations.

The foregoing discussion has highlighted the fundamental fragility of assessments of capacity, which hinge on a series of complex yet unavoidable clinical judgements about the person’s cognitive capacities and the origins of the beliefs or values that motivate their decision. This chapter will explore the implications of this for best interests assessments and, in particular, the extent to which due weight is currently being given to the person’s authentically held values and beliefs in the assessment of their best interests. Drawing on case law, interviews, and post-legislative scrutiny of the Mental Capacity Act, it will conclude that despite a number of empowering court decisions, the lack of direction contained in the Act on how to apply the MCA has still resulted in different weight being attributed to the agent’s wishes. Moreover, the trend towards greater empowerment has not yet trickled down to decisions being taken on the ground by doctors and care workers, which still remain characterised largely by paternalism and risk aversion. Those undertaking best interests assessments could therefore benefit from a more unified starting point and greater clarity on the factors which ought to influence the degree of weight accorded to the individual’s wishes.

This chapter will explore a key problem with the current law’s approach – namely, that it is impossible to assess a person’s capacity to ‘use or weigh’ the information relevant to a decision without engaging with the values that underpin their decision. It will suggest that while some recourse to the person’s values is unavoidable, the current approach gives assessors ample room to invoke other values when assessing the person’s capacity, thus creating space for paternalistic judgments to go unchecked. Despite this risk, it will be claimed that in many of the cases in which this occurs, underpinning the assessment is in fact a concern that the values or beliefs that motivate a person’s decision have been affected by an illness or impairment, such that the decision reached is not one that the agent would have made, but for that disorder or impairment. The current law cannot account for this, and so assessors are forced to manipulate the test for capacity instead. While this prevents unnecessary harm, it has the effect of obscuring the value-laden and highly controversial claims that may underpin such decisions, which remain insulated from scrutiny or challenge.