Melbourne Law School

Indonesia's national ulama council, the Majelis Ulama Indonesia, or MUI, has successfully transformed itself during the reform era reversing its earlier relationship with government. It is the MUI that now sets the agenda on appropriate ways to recognize, protect, and promote the majority faith. However it does not operate entirely separate to the state, indeed, there are numerous points of contact and mutual dependence between this group of Islamic scholars and state agencies. This article offers two case studies on religious freedom demonstrating different aspects of the MUI's self-appointed role of national mufti. The rst case study demonstrates how the MUI has taken control of the high ground of religious doctrine. Through its response to blasphemy cases and deviant Muslim activities the MUI denes appropriate, orthodox Muslim conduct. The second case study deals with the revised regime of halal food certi-cation. Here the state has sought to bring the MUI back into its embrace, partly as a result of corruption scandals. In doing so, however, Islam continues to be further entrenched in state law and regulation. Indonesian Islam was said to be deconfessionalized, reecting the nature of the former authoritarian and bureaucratic state's engagement with various Islamic institutions. The changing role of the MUI demonstrates that the state and law are becoming increasingly confessionalized. This change has signicant implications for Indonesia's democratic constitutional framework, evident in what these cases say about the enjoyment of the fundamental right of citizenship.

While claims that those arguing against a particular position must bear the burden of proof are ubiquitous within bioethics, there has been surprisingly little written on how we can fairly determine who should bear this burden. This is especially problematic as participants on both sides of many debates attempt to place the burden of proof on their opponents. In The Ethics of Transplants, Janet Radcliffe Richards provides a seemingly straightforward methodology for working through practical problems, with a particular focus on the controversy surrounding kidney sales from living donors. It involves a form of tightly structured presumptive reasoning, where a starting presumption in favour of a particular policy can only be defeated if counter-arguments meet a clearly specified burden of proof. This method of inquiry is deeply appealing, not least because of its promise to keep arguments ordered and set clear conditions for argumentative success. However, I will argue that these attractive features come at the significant cost of unfairly dismissing valid arguments and favouring one side on any given issue. In effect, Radcliffe Richards’ methodology settles the organ sale debate before it even begins through establishing a burden of proof that opponents of paid kidney procurement are unable to meet. Based on my discussion of this methodology, I will argue that in practical ethics even non-rebuttable arguments do not create a presumption either for or against a proposal. The concept of the burden of proof, in the sense used by Radcliffe Richards, is inapplicable to questions of practical ethics.

Advocates of paid living kidney donation frequently argue that kidney sellers  would benefit from paid donation under a properly regulated kidney market. The poor outcomes experienced by participants in existing markets are often entirely attributed to harmful black market practices. This article reviews the medical and anthropological literature on the physical, psychological, social and financial harms experienced by vendors under Iran’s regulated system of donor compensation and black markets throughout the world and argues that this body of research not only documents significant harms to vendors, but also provides reasons to believe that such harms would persist under a regulated system. This does not settle the question of whether or not a regulated market should be introduced, but it does strengthen the case against markets in kidneys while suggesting that those advocating such a system cannot appeal to the purported benefits to vendors to support their case.

Richard Titmuss‟ The Gift Relationship, a seminal work on blood donation, advanced a number of influential arguments against paying blood donors. Some of these arguments have also been raised in connection to the moral permissibility of organ markets. I will discuss whether they have any relevance to the organ market debate, with particular focus on Titmuss‟ central argument against commercialising the blood supply: that blood donation plays an important role in fostering and sustaining social integration and altruistic attitudes, while “the commercialis[ation] of blood and donor relationships represses the expression of altruism [and] erodes the sense of community…” (Titmuss, 1997, p. 314). My presentation has two key purposes: to help us decide whether this argument is applicable to the context of kidney transplantation, and to explore what role (if any) it should play in guiding policy decisions on organ markets. I defend the application of Titmuss‟ argument against three objections: firstly, that Titmuss‟ work is guided by an underlying moral commitment to individual freedom and therefore supports markets in organs, and secondly, that the value Titmuss places on altruism ultimately supports establishing a market in order to increase the scope for virtuous activities. I argue that both of these arguments misconstrue elements of Titmuss‟ work. A third objection appears more promising: In Titmuss‟ view, blood donation fosters social solidarity because donors give to strangers, yet as there is no substantial practice of non-directed „good Samaritan‟ kidney donation, Titmuss‟ concerns do not appear to apply to this latter context. I respond by arguing that while kidney donation may not foster social solidarity, organ markets may nonetheless undermine it. Finally, I defend the idea that this conclusion should play a significant (but not decisive) role when deciding if regulated organ markets are ethically acceptable.