The Case for Dualism

Among the most important powers sovereign states have is the authority to establish treaties with other states. A treaty is essentially a contract between sovereign states, and as such states are obliged to confirm to the treaties they have agreed upon, or in Latin pacta sunt servandaThough states are bound by their treaties, the legal effect of treaties on the citizens of a state is much less clear.

There are basically two systems of how treaties interact with national law: monism and dualism. In countries which use a monist system, treaties become part of domestic law immediately after a treaty has been ratified by that state, this is called direct effect. On the other hand in dualist countries, a treaty has to be translated into domestic law before it can be invoked by or used against citizens.

States have the freedom to choose which system they will use, and usually this is determined by the national constitution. The question which now arises, is whether Space Settlements should choose either monism or dualism. In this post we will argue in favour of dualism.

In many nominally democratic countries which use the monist system, governments repeatedly use treaties to circumvent domestic democratic procedures. This because international treaties prevail above domestic laws, and because negotiating treaties is usually a prerogative of the executive and hence the legislature can only vote for or against the ratification of the resultant treaty. It’s quite clear that this leaves room for abuse.

Too often governments include clauses in treaties, of which they later claim were “forced” to accept such clauses. Given the secrecy in which such negotiations take place, it’s often impossible for legislatures and citizens impossible to check such claims. This creates opportunity for governments to push unpopular measures.

Though dualist countries could use the same strategy, but it would less effective since treaties in these countries cannot be enforced in courts unless translated into domestic law. Further the translation process has to follow ordinary legislative procedures, gives a greater role for legislatures, courts and citizens. Consequently governments are less able to use treaties as scapegoats.

A second benefit of dualism is that enhances the negotiating position of the nation’s government. When other governments propose an unfavorable clause, the government can simply state that such clause would not make it into domestic law. The other governments would not be likely to face such a failure, and are most likely to either drop the clause altogether or to soften it.

In line with our preference for a generally non-interventionist foreign policy, we recommend that Space Settlements should be reserved to make treaties in the first place, and to strengthen their independence they should implement a dualist system.

Posthumous reproduction?

We stumbled upon a case which really intrigues us, in The Independent.  A woman who was about to get married with her long time boyfriend but he got into a vegetative state, wants to collect her fiance’s sperm in order to get pregnant from his children.

The woman in question claims that her fiance would have consented to such request, given that she and her fiance have discussed the issue for starting a family intensively before his illness. Since the hospital refuses its cooperation, the case is brought to court by the woman.

The important question at stake here, has this woman the right to collect the sperm from her fiance? According to classical liberalism invasive medical procedures require the informed consent of the person involved, though this requirement could be waived in a clear case of a medical emergency in which the person is unable to give consent. But then only to the extent that the life of this person is saved, and the recovery of health is enabled.

A person who is unable to give informed consent, should not be subject to a treatment which is not justified by such medical necessity. Unless this person has given consent prior to the loss of his ability to consent. The principle of informed consent only requires that a person has been able to consider his consent on the base of adequate information, and could be given either orally or in writing.

However, in case of an orally given consent, it would be difficult to prove that consent has indeed be given, especially if the person is in a vegetative state. Even if there would be witnesses of the consent giving, the devils advocate could argue that the witnesses have been bribe by the beneficiary of the consent. Of course, one could also argue that a written consent is forged and indeed many court cases deal with such forged documents. But at least in the case of a written consent, the authorities could scrutinize the document.

Though we have talked about giving informed consent to this particular action, it’s also possible to authorize someone else to make decisions if one would be unable to do so. Usually such authorization is given to one’s spouse or family. The question is then, whether such authorization would include the right to collect one’s sperm. One could argue that if one gives his fiance general authority to take decisions upon his behalf when unable to so by himself, this would include the authority to collect a sperm sample. Others could argue that ordering such action would be an improper use of this authority, given the intent for which this is given.

It’s a small step from collecting sperm from someone who is in vegetative state, to collecting sperm from a recently deceased body. It’s generally accepted that after death, the next of kin has to decide whether the organs of deceased are up for transplantation, unless the dead person has made such decision before death. Are those next of kin also authorized to collect sperm? The question here is what is the difference between harvesting one’s organs and harvesting one’s sperm after death?

Though organ transplantation is nowadays accepted in most parts of the world, posthumous reproduction causes an uneasiness by many people. But with the possibility to cryopreserve sperm (but nowadays also for egg cells) for a long period of time, posthumous reproduction is becoming a part of real life. Hence it’s necessary to discuss its desirability, and possible regulation.

And not only cases as the one we cited in the begin, are of importance, but also in case of people who voluntarily donate sperm or egg cells by life. One could donate sperm to sperm bank at one day, and die the next day. Is it okay to use sperm of donor, who has died since the donation? And what about a case in which a couple has conserved sperm/egg cells outside the body, and one of the partners dies suddenly; does the surviving partner has the right to made use hereof?

An interesting question in regard of posthumous reproduction, is of course inheritance. Should children who have been born long time after their parent’s death be considered as legitimate heirs? Or should we put a limit on the period in which a posthumously conceived child can be considered to be an heir? If you believe the answer on this last question is no, think about this hypothetical case. Suppose Alice dies without heirs, and hence her estates goes to the state. But after a hundred years Alice’s son Bob is born, because Alice had donated a few egg cells when she was alive. Should Bob be able claim his mother’s estate, which might have been dissolved over time?

Though this question might not be easy to answer, we definitely need to think about them.

New method for producing stem cells

Unfortunately, this sounded too good to be true. Other scientists have failed to reproduce these results and ultimately the scientists involved had to retract their article. [update January 2, 2015]

Japanese scientists claim to have developed a new method to create human “embryonic-like” stem cells, without the ethical concerns of using real human embryos. Induced pluripotent stem cells have been considered as the solution for the controversial use of human embryos as source for stem cells for medical treatments, and for years scientists have been developing techniques to create such induced pluripotent stem cells. But until now these methods required the genetic engineering of adult cells, the Japanese have now found a method to change adult cells into stem cells without genetic engineering.

According to The Independent the scientists have succeeded to create induced pluripotent stem cells, just by bathing adult cells in a weak acid for half an hour. This new development is quite promising, if this method really works then stem cell therapy has the potential to become a widespread and reasonably cheap treatment for a wide variety of diseases.

The two main competitors of this technique, therapeutic cloning and traditional induced stem cells, are quite expensive. In “classic” induces pluripotent stem cells, complicated genetic engineering techniques are required, which demand skilled personal. And further genetic engineering is to a certain degree gambling, the genes have to get into the right place, or it will fail.

And besides the ethical controversy surrounding therapeutic cloning, this method has a serious drawback: the need for a huge amount of human egg cells. Harvesting human egg cells is not easy, since this requires surgery. And it’s questionable that there will be many women willing to sell or donate their eggs for this purpose.

A cheap and reliable supply of stem cells is beneficial for the field of tissue engineering, the creation of tissues and organs outside the human body.

Marlisa Munoz, futility and artificial uteri

The case of Marlisa Munoz is a clear example of a futile medical treatment. Ms. Munoz was pregnant when she died a sudden death at age 33, a great tragedy for her husband, family and friends. Though Ms. Munoz was pronounced brain-dead, the hospital continued to put her on life support, and doing so against the wishes of the deceased’s husbands and her family, because she was pregnant.

Given the early stage of gestation and the fact that the fetus had suffered an oxygen shortage as result of the sudden collapse of his mother, it is widely believed that the pregnancy was unlikely to come to term or that the fetus would have an abnormal development. In either case the continuation of the life support of Marlisa Munoz is a futile exercise, since neither she or her child could be saved.

In most of the civilized world, the moment of brain death is nowadays considered as the moment of legal death. Because brain death is irreversible and according to modern science a functioning brain is a prerequisite for human consciousness. The only valid reason to keep a brain-dead body on life support is for the removal of organs for the purpose of transplantation.

A similar case of medical futility is putting babies with anencephaly, a rare condition in which a fetus does not develop a brain, on life support. Since such being is born without a brain, we can hardly speak of a “person”. Also in this case the most meaningful purpose of keeping such being on life support is for organ transplantation. Any other application, is a waste of expensive medical equipment.

Such cases of medical futility are unethical, because the deprive resources which could be used to treat people who can be saved. It does not make sense to use medical resources to save those who are already dead, while others are dying unnecessarily.

But let’s return to the argument the hospital used to keep Ms. Munoz on life support, until the court ordered to halt this treatment. They argued that they intended to save Ms. Munoz’ unborn child. Suppose, for the sake of argument, that we assume that the fetus could be brought to term as a healthy child. Then it would be better if we had a machine, an artificial uterus, to which the fetus could be transferred. Thereafter we could his brain-dead mother let rest in peace. This would save the husband, family and friends of the deceased a lot of emotional distress and legal costs.

Hollande and the separation of the public and the private sphere

French president Hollande has certainly become the subject of a controversy surrounding his affair with another woman than his then-current romantic partner. In line with France’s republican culture, this affair did not cause any uproar among the citizens of the French Republic. In sharp contrast with similar events in the UK or the USA, where the private life of politicians is less protected from the public eye.

The reason why the French don’t bother much about the private life of their president, has to be sought in the strong role republican thought plays in French political culture. Hence we have to understand what republicanism is.

The word Republic is derived from the Latin phrase Res Publica which can be translated into English as the public interest.  Res means thing or interest, and the English word public comes from publica, the English term commonwealth has a similar structure as res publica. Hence a republic is a system of government which promotes the public interest and consequently a state which only serves the interest of the government or a privileged part of the population is by definition not a republic.

A theme central to classical republicanism is the distinction between the public and the private sphere, a concept which dates back to Aristotle. In the private sphere (res privata) the individual is sovereign, and in the public realm sovereignty is shared by the members of the community. In less abstract terms one’s household belongs to the private sphere, and is under the full authority of the individual; whilst the things outside the households belong to public sphere and are under the shared authority of the community.

For classical republicans the government has no business in what citizens do in their private spheres, since the proper function of the government is to maintain the public sphere. Only if actions in the private sphere do violate the rights of others or endanger the public realm, the government is allowed to interfere in the private realm and only to the extent as is necessary to protect people’s rights and the public sphere. Any other intrusion of the government in the private realm is, in the eyes of classical republicans, a kind usurpation.

Since in classical republicanism the government is supposed to represent and serve the public, we can substitute the word government with public in the analysis of the previous paragraph. Hence we can conclude that according to classical republicanism the public has no interest to interfere with one’s private life.

Voluntary castration for sexual offenders?

In the comment section of our last post on indefinite sentencing, a few regular our commenters made several suggestions for the penal system of space settlements. One suggested that criminals serving an indefinite sentence should be given the opportunity to volunteer for medical experiments, another person argued for the reintroduction of exile. Fortunately for him, we have discussed the concept of penal transportation earlier on this site.

Penal transportation is a kind of exile, and the system of penal transportation we have proposed we combine the idea of indefinite sentencing with exile. In that post we also argued that certain sexual offenders are among the persons who need to be isolated from society.

The primary reason for sending sexual offenders to a penal colony is to prevent them from re-offending, but in case of these category of criminals there might be an alternative: voluntary castration. With castration we mean surgical castration. In countries as Germany and the Czech Republic it is a common practice to offer sexual offenders to undergo surgical castration in return of a reduce sentence. According to Czech authorities this practice is quite effective as almost none of the castrated convicts committed further crimes.

Our proposal is simple: if someone is convicted of a serious sexual crime and therefore sentenced to penal transportation, the convict is offered the choice between either surgical castration or serving an indefinite sentence in a penal colony, with the latter option being the default choice. Just as in the case of using prisoners as medical test subjects, no criminal will be forced to get castrated. Of course, proper regulations have to be devised to ensure the voluntariness of this choice.

A common objection to the idea of voluntary castration is that it’s unfair to female sex offenders. However, we can easily rebut this particular objection. First, most sexual offenders are male. Second there’s a female equivalence of castration, it’s called oophorectomy, the removal of a female’s ovaries.

According to Wikipedia oophorectomies have a multiple negative effects upon a women’s overall physiology. This includes the increased risk of osteoporosis, reduced life expectancy and an adverse effect on sexuality. Of these effects only the last is desirable. However, hormone-replacement therapy improves all of these effects, except sexuality. This because sexual desires in both male and female humans is triggered by testosterone, which is not included in a hormone-replacement therapy. Or more accurately for our purpose, it’s possible to exclude testosterone.

A more fundamental objection to castration as a method to prevent of sexual offenders to repeat their crimes, is that castration is only helpful for those sex offenders whose actions are sexually motivated. However, some sexual offenders aren’t motivated by sexual desires, but by other factors such as sadism. For those criminals castration is not an option, hence they will be transported to a penal colony.

NB. Our series on Education has been delayed due to the need for some more research and personal reasons.

A Reply to A. L. Humanist on Crime and Punishment

On the blog The Modest Blog Of A Liberal Humanist we found this interesting article. In this article the author argues that two teenagers who severely attacked an elderly homeless person, should be locked up for life either in a mental hospital or in prison, depending on the psychological condition of the perpetrators rather than a six or seven-year sentence as was actually the case here.

The author argues that these two persons are an eminent danger for society, and that it’s unlikely that they can be reformed within six or seven years. Hence a life sentence is therefore justified in this case. We agree with the analysis that this two young criminals are dangerous and have to be isolated from society. However, we would prefer an indefinite sentence rather than a life sentence.

Though the difference between a life and an indefinite sentence is subtle, it’s nevertheless of great importance. A life sentence means that a person is put in prison for the remainder of his life, save the possibility of parole or clemency. An indefinite sentence on the other hand, lasts as long as is necessary to protect society from the condemned. As long as a criminal remains a threat to society he will remain behind bars, if he however ceases to be a danger he can be released. Of course we recommend he will be supervised after his release.

The moral relevant difference between these two different sentences, is that a life sentence precludes any possibility of rehabilitation whilst an indefinite sentence still has this opportunity without compromising the protection of society.

Space Settlements and Education part 1

Introduction

Since at least the time of Plato classical republicans have placed high emphasis on the importance of education. For classical republicans the main purpose of education is the cultivation of the virtues which are required to be a citizen. Citizenship in a republican sense means active citizenship, hence the republican way of life is called vita activa (Latin for active life).

This emphasis on active citizenship as the central purpose of education, has consequences for the curriculum used in education. The Ancient Greeks as well the Romans put great importance on the acquiring skills in logic and rhetoric. Together with grammar (the understanding of language, the classical definition is broader than the modern one), these subjects forms the trivium. These subjects were (and still are) considered to be essential for participation in politics. Recall the in Athens citizens were supposed to show up at the popular assembly.

After the completion of the trivium, the curriculum was continued with the quadrivium: arithmetic, geometry, astronomy and music. In classical antiquity algebra was not well-developed, and was only introduced as a separate discipline in Europe after the renaissance. The subjects of the quadrivium were considered more advanced than the trivium, and the latter could be seen as primary education and the former as secondary education. We will return to this later on.

With the decline of republicanism and its subsequent replacement with consumerism, the primary purpose of education also shifted. Nowadays the curriculum is based on the perceived needs of the “economy”, or more often on what students and their parents believe to be “useful” for their prospective careers. For instance many schools are now replacing classical languages such as Latin with Chinese, because there’s a wide-spread believe that this language is more relevant in today’s world.

This attention for the economic relevance of school curricula is not without merit, but in most countries it’s taken at the cost of the civic function of schools. Ideally the curriculum should serve both these civic and the economic objectives. After all an adequate preparation to one’s professional career is a necessary condition for financial independence, which is in turn a fundamental condition for freedom in a republican sense.

Due to the very importance of education, classical republicans have stressed from ancient times that education is a public affair and hence that the community as a whole is responsible for the proper education of its members. Consequently the role of parents in a republican educational system is limited, and parental preferences should in no way obstruct the primary purpose of education: the forming of virtuous citizens. Any parent or other person who seeks to obstruct this function of education, should be tried for high treason in a republican society.

Since times immemorial autocrats and enemies of freedom have abused education to indoctrinate the youth. Republicans abhor this abuse, instead the young should be trained in critical thinking in order to resists demagogues and apologists of authoritarianism. A republican society cannot tolerate those who want to replace education with indoctrination of any kind.

In this series we will discuss the basic outline of the educational system of republican space settlements. In part 2 we will discuss the structure of primary and second education, and in part 3 we will discuss tertiary education.

Borrowing versus leasing

In our post A Cooperative Economy we briefly discussed the option of leasing as a method of funding worker cooperatives. The essence of a worker cooperative is that workers own, or at least control the means of production, or capital, instead of being employed by the owners of capital.

The fundamental problem is how can workers who are starting a cooperative, can acquire the means of production they need. Suppose that Alice and Bob are setting up a worker cooperative, but need 100,000 worth of equipment. Assuming that both have a monthly basic income of 1,200, it will be clear that they can’t raise the money on their own.

Of course, Alice and Bob can borrow 100,000 from the bank or some other financial institution. But this we leave both Alice and Bob indebted, which they have to pay off even in case their cooperative proves to be a failure. This is a prospect which might and will deter workers from forming worker cooperatives.

The issue at stake here, is the idea that a worker cooperative should own their means of production, which means that the cooperative has to purchase those. A large one time expense. There are, however, alternatives for outright ownership of the means of production.

Instead of buying, Alice and Bob could decide to lease the equipment they need. Suppose they could lease this equipment for, say, 10,000 a year, their cooperative only needs to raise 10,000 in order to start-up. When the cooperative is successful, they will be able to pay for the capital they use without incurring additional debts.

Alternatively Alice and Bob could hire-purchase the capital goods. The difference between lease and hire-purchase, is that in the latter case the goods will become the property of the lessees, while in the former cases these will return to the lessor at the end of the contract (or the lease contract maybe renewed). Both forms of credit have a big advantage from the perspective of the A&B Coop: in case it will default on its payments the lessor can only take back the leased goods, and refuse further use, but Alice and Bob cannot go bankrupt.

Because the lessor can reclaim his goods in case of default by the lessees, he takes less risks than in case of a monetary loan. Hence the costs of funding a business by lease or hire-purchase will be lower than the interests on a monetary loan.

This leaves us with the question who should supply the goods for lease. We propose that local governments to set up publicly owned lease companies which specialize in leasing capital goods to worker cooperatives. These lease companies can be funded either by the revenue raised by the lease of land or by borrowing the required funds. Money can be borrowed either from the Federal Credit Bank or from private investors. In the latter case interest rates can be kept low, since the government will guarantee the payment of debts.

Though in Mordan space settlements, a substantial portion of the means of production will be owned by the community, our system differs from Soviet-style communism. First, unlike in the USSR the private ownership of capital goods will be legal. Second worker cooperatives will operate in a free market rather than in a command economy, i.e. the state does provide capital to the cooperatives, but it does not determine what should be produced.

In the economic system we propose, labour will hire capital rather than be hired by capital. And hence capitalism is essentially reversed without resorting to Soviet communism.