Therapeutic jurisprudence and the resolution of value conflicts: what we can realistically expect, in practice, from theory.
This article assesses the criticisms of therapeutic jurisprudence that it cannot resolve value conflicts, especially between autonomy rights and therapeutic values, or, less radically, that it has not provided a general method for resolving conflicts. Grounded in general jurisprudential principles about conflict resolution, including novel developments respecting the meaning of weighing and balancing, the article rejects the criticisms as unfounded. The article also develops and critiques arguments maintaining that therapeutic jurisprudence cannot resolve certain value conflicts because the values are incommensurable. The argument is illustrated by examples concerning the right to refuse treatment, and jurisprudential analyses of that right.
Kress
K
K
College of Law, University of Iowa, Iowa City, IA 52242-1113, USA. Kenneth-Kress@uiowa.edu
D003220:Conflict, Psychological; D006801:Humans; D008605:Mental Health Services / Q000331:legislation & jurisprudence*; D012945:Social Values