The Confluence of Philosophy and Law in Applied Ethics

Norbert Paulo

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9781137557346
• Topic: Philosophie
• Subtopic: Ethik & Moralphilosophie

The law serves a function that is not often taken seriously enough by ethicists, namely practicability. A consequence of practicability is that law requires elaborated and explicit methodologies that determine how to do things with norms. This consequence forms the core idea behind this book, which employs methods from legal theory to inform and examine debates on methodology in applied ethics, particularly bioethics. It is argued that almost all legal methods have counterparts in applied ethics, which indicates that much can be gained from comparative study of the two.

The author first outlines methods as used in legal theory, focusing on deductive reasoning with statutes as well as analogical reasoning with precedent cases. He then examines three representative kinds of contemporary ethical theories, Beauchamp and Childress's principlism, Jonsen and Toulmin's casuistry, and two versions of consequentialism—Singer's preference utilitarianism and Hooker's rule-consequentialism—with regards to their methods. These examinations lead to the Morisprudence Model for methods in applied ethics.

Part I
Ethics and Law

Everyone faces moral problems and has to answer moral questions. Must one always be honest, or are there situations where lying is acceptable? Is it blameworthy to eat meat, to wear leather boots, to use cosmetics that have been tested on animals? Is it morally permissible to fly to Paris for a weekend vacation, given the devastating effects of mass air traffic? Are there moral limits to free markets? How about free markets for prostitution or for organs? Is it good to grow human heart valves in pigs?

And these are only general examples with relatively modest and indirect effects, if any, on individuals or their loved ones. Imagine you were the physician in ‘Debbie’s case’ (Anonymous 1988); you are on a night shift in the hospital when someone calls you to see a patient whom you have never seen or heard of before. She is very young, but, as you see on her chart, she is in the terminal stages of ovarian cancer. She obviously suffers great pain. Seeing you, she pleads, ‘Let’s get this over’. Would you help her getting this over with by administering morphine in a dosage that hastens her death? How, imagining you are Debbie, desperately waiting for relief and angry to be treated as incompetent, do you decide your own fate?

One may invoke traditional moral principles to answer moral questions such as these. One may, for instance, turn to utilitarianism and ask which solution would amount to the greatest happiness for the greatest number. Alternatively, one may consult the categorical imperative and try to find an action-guiding maxim of which one can also will that it should become a universal law. No matter which traditional moral principle you invoke, they are all way too abstract to determine a clear answer to these concrete questions. Fortunately, around the middle of the twentieth century, applied ethics emerged as a philosophical discipline. Applied ethics developed more specific principles for different fields, such as animal ethics, environmental ethics, business ethics, and bioethics. Bioethics, as the ethics of medicine and bio-technology, is widely seen as having been the first field of applied ethics. Nowadays, it is certainly the most developed; it is, furthermore, immensely important in the public realm. Just think about the bioethical commissions that parliaments, administrations, and health care institutions have established in order to develop clear guidelines for bioethical issues.

This book concentrates on bioethics even though the problem it addresses—and, I believe, the answer it gives—is more or less the same in all fields of applied ethics. This problem is the relation between abstract moral principles and concrete cases. For, even if one takes the four principles routinely invoked in bioethics—respect for autonomy, nonmaleficence, beneficence, and justice—these are still too abstract to determine what one should do in Debbie’s or in other hard cases.

Reference

Anonymous. 1988. It’s over, Debbie. JAMA 259: 272.

© The Editor(s) (if applicable) and The Author(s) 2016

Norbert PauloThe Confluence of Philosophy and Law in Applied Ethics10.1057/978-1-137-55734-6_1

Begin Abstract

1. The Black Box Problem

Norbert Paulo¹

(1)

Department of Social Sciences and Economics, University of Salzburg, Salzburg, Austria

End Abstract

It seems as if there is a black box between the principles and the particular case. What one can see in large parts of applied ethics is that the input (the moral principles one endorses and the moral problem one faces) and the output (a particular solution to the problem) are known. What one does not get to know, however, is how the latter followed from the former; there is a black box, the internal working (the method) of which remains unknown. The aim of the present book is to clear this black box; its central question is thus: which are the methods that allow for the transparent and rational resolution of particular problems bearing on abstract and general moral principles?

I approach this black box problem from a somewhat unusual angle, namely from the point of view of legal theory. The reason for this is simple: jurists do have the very same problem as applied ethicists. Both have to apply norms to particular problems or cases. But whereas applied ethics is a rather recent development, jurists have thought about what I call the black box problem for ages. Judges always had to decide particular cases on the basis of the law; and ever since, legal theorists have asked what judges actually do when they decide cases. Legal theorists have developed, criticized, and refined various methods to make abstract norms bear on cases. The basic idea is to inform the debate about methods in applied ethics by looking at the debate about methods in legal theory. There might be some lessons to be learned. Jurists have already made some mistakes and gone down some wrong paths; ethicists should not make the same mistakes again. I thus try to inform the debate on methods in ethics from the point of view of legal theory.

With this book, I wish to contribute to the understanding of what one can do with moral norms—and how one can do it. This contribution complements the usual work of normative ethicists, namely the elaboration and justification of certain abstract principles. I am not concerned with the principles themselves; I ask what one can do with them. Principles and methods go hand in hand. The methodological competence has been largely ignored in ethics, although one needs it whenever we want to make a particular moral judgment—and this has been one of the main motivations for doing ethics in the first place. This motivation became obvious over the past three or four decades with the emergence of ethics commissions in the public realm. There, so the idea goes, ethics experts use their expertise in order to develop guidelines or to advise the administration on how to design the law on contested issues, such as research involving patients or preimplantation genetic diagnosis (PGD). Methodological knowledge is a key requirement for someone being properly called an ethics expert. In fact, everyone needs some understanding of methods in order to lead a moral life.

Methods

I shall clarify my understanding of ‘methods’. Within ethics there is some confusion about what methods are, and in particular about the relation between ‘methods’ and ‘theory’. Just a few words on etymology: ‘theory’ originates from the Greek ‘theōria’, which means, roughly, observing, seeing, or regarding. In Greek, ‘theorists’ were people who, like tourists, saw foreign cities; later, ‘theorist’ became an official title that was awarded to ambassadors; they were reporters or commentators to confirm certain events. Thereafter, the meaning shifted to the now more common understanding of ‘theory’ as related to contemplation in the sense of reflection and scrutiny. But this understanding of contemplation differs from the Latin ‘contemplatio’, which means—just like ‘theōria’—observing or regarding rather than reflection or scrutiny (Louden 1992, 85 ff.).

‘Method’ originates from the Greek ‘méthodos’, which means, roughly, ‘way towards an aim’ or ‘way of scrutiny’. Far from being decisive for one understanding of ‘theory’ and ‘method’ over another, I believe that the etymology at least supports my understanding of ethical theories as providing—as a result of observation and contemplation—the basis for ethical scrutiny and decision-making, and of methods in ethics as showing the way to go towards the resolution of a problem on the basis of a theory. Or, to invoke another picture, if one wants to play a Chopin nocturne, one will need a piano. But the piano will not play the nocturne by itself. One will also have to know how to play the piano. This knowing-how is the ‘method’ one needs in order to play the nocturne.

More precisely, by ‘ethical theories’ I mean moral systems such as Kantianism, utilitarianism, virtue theory, and casuistry. These are, grosso modo, functionally equivalent approaches to the phenomenon of morality, that is, different conceptions of what it is that makes actions (or motives, or character traits…) right or wrong, good or bad, better or worse. I do not assume that ethical theories are necessarily comprehensive in the sense that they cover every aspect of morality; ‘ethical theories’, in my understanding, include moral systems that are explicitly meant to cover only a certain area of human conduct. For instance, many theories in applied ethics are explicitly designed for a certain sphere, such as business, warfare, medicine, or journalism. This understanding of ‘ethical theory’ is in accord with the use of the term by C.D. Broad in his seminal Five Types of Ethical Theory, where he discusses the theories developed by Spinoza, Butler, Hume, Kant, and Sidgwick respectively, comparing, inter alia, their structure, and their metaphysical and epistemological assumptions (Broad 1944).

It is much harder to pin down the meaning of ‘methods’ in ethics. It is usually not distinguished from ‘theories’, neither in classical ethics nor in applied ethics. Henry Sidgwick begins his The Methods of Ethics with this clarification: ‘“Method of Ethics” is explained to mean any rational procedure by which we determine what individual human beings “ought”—or what is “right” for them—to do, or to seek to realize by voluntary action’ (Sidgwick 1967, 1). These ‘rational procedures’ are, I suppose, the various theories applied to particular cases using certain methods (in my understanding of the word). Such procedures—that is, a combination of theories and methods—is also what Tom Tomlinson, writing in medical ethics, has in mind when he takes ‘method … to refer to an explicit set of procedures that structure our approach to a problem’ (Tomlinson 2012, xiii). Also writing in medical ethics, Edmund Erde even holds that ‘[m]ethod simply identifies the premises and values preferences and sketches the logic … Deducing conclusions from the premises, values preferences and logic is applying or employing the method’s domestic logic. It is simply method-application’ (Erde 1995, 236 f., his italics). His understanding of ‘method’ seems to be what some regard as ‘morality’, namely a certain set of norms regulating human behavior, and is thus much more limited in scope than Sidgwick’s and Tomlinson’s views. Yet, I do not see any compelling reason why one should adopt this understanding where what I understand as ‘method’ is disparagingly called ‘method-application’ (and furthermore identified as deduction). I mention Erde here because he stands, pars pro toto, for both the wide-ranging neglect of the present book’s topic and for the terminological confusion within its realm. Methods are not only application and not only deduction.

Instead, methods should be understood as primarily formal relations, such as specification, deduction, analogy, and balancing. Methods are usually not, as I will argue, functionally equivalent, which differentiates them from ‘theories’. Rather, methods can be used within different ethical theories depending, for example, on their structure, their respective kinds of norms, virtues, or paradigms. This understanding does not yet differentiate methods from what I shall call ‘theories of justification’, such as wide reflective equilibrium. The methods I mean depend on ethical theories as well as on theories of justification in the sense that one needs methods to make a theory’s content more concrete and to apply it; but the conjunction of methods and theory will not determine critical decisions. Both, then, depend on theories of justification to justify these decisions. I will elaborate on this later in this book. For my present purpose, it suffices to amend the example of the Chopin nocturne. One knows the nocturne (the ‘theory’) and how to play the piano (the ‘method’); yet, whether or not the nocturne is a good piece worth playing depends on criteria (the ‘theory of justification’) external to both theory and method.

One further preliminary note is in order here. In normative theories, methods primarily have the function to guide decisions; I will mostly be concerned with the ex post rationalization of decisions that have already been made and that one later wishes to test for their rationality. I focus on the rationalization for several reasons: first and foremost, the understanding of methods as ex post rationalizations is much easier to grasp than the actual decision-making process, because the ex post analysis allows for an organization of afore unorganized thoughts and ways of reasoning. The ex post analysis also allows for an abstraction from time constraints. Decisions are often made under pressure of time, where it is very likely that methods such as analogy, deduction, specification, and balancing are merely understood as metaphors—that one has to look for similarities, for implications, make something more concrete, or weigh things up, respectively—without necessarily knowing what exactly they mean beyond this metaphorical level. Also, a mix-up between the formal and material parts is extremely likely to occur. Second, much of everyday decision-making and ethical reasoning is less organized than what I suggest in the following analysis. However, I believe that this analysis can inform our understanding of the metaphors, thereby enhancing our ability to use them as guides. In othe...