oxford handbook of bioethics
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c h a p t e r 6
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P O L I C Y- M A K I N G
I N P LU R A L I S T I C
S O C I E T I E S
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S Ø R E N H O L M
NOW, the serious problem is this. A modern democratic society is characterized not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines. No one of these doctrines is affirmed by citizens generally. Nor should one expect that in the foreseeable future one of them, or some other reasonable doctrine, will ever be affirmed by all, or nearly all, citizens. Political liberalism assumes that, for political purposes, a plurality of reasonable, yet incompatible, comprehensive doctrines is the normal result of the exercise of human reason within the framework of the free institutions of a constitutional democratic regime (Rawls 1996, p. xviii; my emphasis).
Bioethics is not only concerned with analysing the actions of individual moral agents; it also analyses policy decisions and thereby has an interface with political philosophy. Bioethicists often give unsolicited policy advice, but many also have more official roles on various kinds of ethics committees advising political decision-makers.1
The views put forward in this chapter have been developed through many years of friendly, but profound disagreement and discussion with John Harris, a good friend and practitioner of the virtues of mutual respect. The chapter relies on arguments I have previously discussed in Holm (2001, 2002, 2003a, b, 2004), and in Harris and Holm (2003).
1 I was myself for six years a member of the Danish Council of Ethics, which provides advice on bioethical issues to the Danish government and parliament.
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The purpose of this chapter is to discuss the issues that arise when a state or other lower public authority has to make policy decisions in areas where there is at the same time moral and scientific uncertainty.
Perhaps the most recent example of this kind of problem is the still ongoing controversy with regard to public policy in the area of reproductive cloning and the therapeutic use of stem cells (see, for instance, the thematic issues of the journals Bioethics, the American Journal of Bioethics, and the Kennedy Institute of Ethics Journal, all in 2002), but there are many other examples in areas like assisted reproductive technologies, abortion, euthanasia, capital punishment, funding of the health care system, and research ethics.2 It is probably no coincidence that many of these questions touch upon moral issues where not only there are marked disagreements about moral issues, but where these disagreements are seen as fundamental by the persons involved and the corresponding views strongly held.
In these cases we often end up in a situation where each side has arguments that it sees as compelling, but which the other side rejects utterly.
In the following I will assume that the following two core features characterize the kind of societies we are discussing: (1) they are morally pluralistic, i.e. there is a variety of views concerning the moral issue at hand, and (2) they are liberal democracies, i.e. they are not dictatorships, autocracies, oligarchies, plutocracies, or populist democracies.
That they are liberal democracies does not make these societies identical at the level of political systems or ideals. Most industrialized and many industrializing countries fall within the cluster of societies picked out by these two characteristics, but each has its own specific version of a morally pluralistic, liberal democracy. This is, for instance, evident in how the generally agreed principle that religion should not directly determine public policy is implemented. Some liberal democracies have an established church (e.g. England,3 Denmark, Norway), some have a weak separation between church and state (e.g. Sweden, Germany, Spain), and some have a strong separation between church and state (e.g. France, the United States). It is also evident at the structural level, where Montesquieu’s classic separation between the legislative, the judicial, and the executive powers is implemented in quite diverse ways, and where the power balance between these three branches of government differs widely between countries.
As David Held points out, these differences concerning the meaning of the term ‘liberal democracy’ not only affect institutional design, they also permeate political philosophy:
In the first instance, the ‘liberal’ component of liberal democracy cannot be treated simply as a unity. There are distinctive liberal traditions which embody quite different conceptions
2 Many of the examples in this chapter will be concerned with the stem cell debate, but I believe that the points made are generally valid.
3 But not Scotland or Wales.
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from each other of the individual agent, of autonomy, of the rights and duties of subjects, and of the proper nature and form of community. In addition, the ‘celebratory’ view of liberal democracy neglects to explore whether there are any tensions, or even perhaps contradictions, between the ‘liberal’ and ‘democratic’ components of liberal democracy; for example, between the liberal preoccupation with individual rights or ‘frontiers of freedom’ which ‘nobody should be permitted to cross’, and the democratic concern for the regulation of individual and collective action, that is for public accountability. Those who have written at length on this question have frequently resolved it in quite different directions. (Held 1992: 10; notes removed)
It may be the case that political philosophy will eventually reach universal agreement on the exact form of the ideal liberal democracy, but until that happens we will be unable to base our analysis on a canonical account of the ideal society.
This multiplicity of forms of morally pluralistic, liberal democracies entails that the analysis in this chapter will have to be relatively general, and that it will therefore risk being slightly off the mark when applied to a particular jurisdiction.
DOUBLE TROUBLE
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In morally pluralistic societies there are, by definition, many areas of moral disagreement. The scope of the current analysis is, however, only concerned with bioethical disagreements and only with those disagreements where a public policy decision has to be made. There are clearly a number of bioethical contentious issues that fall wholly within the private sphere and do not call for any public policy decisions, although it is important to remember that the extent of the private sphere is itself contentious. If the private is political, it is for instance not the case that activities wholly confined within the walls of the home necessarily fall within a protected private sphere.
The class of issues analysed here will be further restricted to encompass only those issues where there is not only moral disagreement, but also significant scientific uncertainty of relevance to the ethical analysis.
This immediately points to one potential problem for a general analysis of this type of public decision-making, since there is no general agreement on what scientific facts are of relevance to ethical analysis. Each ethical framework picks its own set of relevant facts. In the following I will, nevertheless, assume that facts about the effectiveness and usefulness of a therapy, its likely impact on major diseases, or its risks and side-effects are relevant facts of interest to most ethical analyses, as are facts about the consequences of implementing one type of policy and not another.4
4 Is it, for instance, the case that introducing capital punishment for a given class of crimes will reduce the number of these crimes?
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The chapter will initially be concerned with general issues of policy-making in liberal democracies in these circumstances, before moving on to an examination of some more specific issues where bioethical analysis and the policy-making process often clash.
LET FREED OM REIG N
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One way of solving these policy-making problems that is sometimes explicitly or implicitly invoked in bioethics writing is the idea that we should allow people to act in the ways they want to act if it does not do any harm to others. A significant part of the literature on ‘reproductive freedom’ or ‘reproductive liberty’ does, for instance, adopt this approach, as does the whole libertarian segment of moral philosophy. If we do proceed in this way, most of the policy problems engendered by ethical and scientific uncertainty can be made to go away, since we only need to estimate whether the activity we are considering is likely to cause harm, and do not have to consider its eventual benefits. The benefit estimation can be left to individual actors. This idea is often traced to Mill’s dictum in On Liberty: ‘that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightly exercised over any member of a civilised community, against his will, is to prevent harm to others’ (Mill 1987: 78). Philosophically this is a rather tempting idea. It is liberal, it is simple, and it seems to solve a whole range of policy-making problems in a way that happens to be in accordance with the views of many liberal bioethicists.
But it is not an idea without problems. First, it relies on us being able to define rather precisely what constitutes harms to others. When the Millian principle is used in bioethics, it is often combined with a rather narrow concept of harm, partly because this is what Mill himself does in On Liberty, partly because a combination with a wider or thicker concept of harm could lead to rather illiberal conclusions. But it is not self-evident that the politically (or philosophically) relevant conception of harm can be restricted in a way that does, for instance, leave out harm to the reasonable sensibilities of others, or harm to the environment, or harm to social networks and cohesiveness.
The exact demarcation of what harms should count as those kinds of ‘harms to others’ that can justify interference with liberty is itself a contentious issue.
Second, the call for freedom often paradoxically has to be combined with a call for state action. Many of the goals that are aimed at through an effective exercise of individual freedom can only be achieved if the legal order is arranged in such a way that the actions create the legal effects people want. Stem cell researchers want to
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be able to patent stem cell lines, women pursuing pregnancy through insemination with their dead husbands’ sperm want the dead men named as fathers on the birth certificates, couples pursuing surrogacy arrangements want to be immediately recognized as the child’s parents, etc. Whether or not legal regulations should be changed to enable people to accomplish these goals cannot be decided by a reference to their liberty interests.
A right to patent your invention is, for instance, not a natural right, but something that is granted by society in order to further the societal goals of economic prosperity and promotion of useful inventions, by creating positive incentives to invent. It is thus impossible to discuss whether stem cell lines should be patentable, without discussing whether society should promote the derivation of stem cell lines, since granting patentability would have the express aim of promoting the derivation of cell lines through the creation of larger and/or more certain economic incentives than exist without patentability.
Third, unless we adopt a libertarian approach where the state has no role in trying to promote even a thin concept of the common good, we still have to decide how the state should allocate its resources between different claims, and that question is not answered by appeal to individual liberty. What is desired is often not only the freedom to do X, but state support in the pursuit of X. Whether all taxation is theft is a large issue in itself (for an interesting new approach, see Murphy and Nagel 2002), but there is clearly a distinct subsidiary issue about state funding of contentious activities out of tax revenues. The fact that the state allows me to pursue a certain activity (e.g. bondage and domination in the privacy of my home) does not necessarily entail that it should support this activity economically in a direct way, or that it should, for instance, support education about how best to carry out the activity.
On the other hand, it is not clear either that the state should force everyone to contribute to contentious activities that the state pursues. It is now, for instance, generally recognized that there should be a right to conscientious objection to military service (for the best extant analysis, see the collected papers in Bedau 1969), as well as conscientious objection for health care professionals in the context of abortion provision (Holm 2004). Are there any good reasons for completely ruling out conscientious objection in the context of funding of these activities, apart from reasons of practicality and expediency?
A direct appeal to liberty or freedom will, for the reasons outlined above, often fail when considering the doubly contentious issues we are discussing here. Either the activity or development in question will fall within a contested area of freedoms and the liberty argument will therefore not be (politically) decisive or compelling, or what is being sought is not only the liberty to pursue the development, but ‘liberty plus’, liberty plus other legal change, or liberty plus public support.
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DELIB ERAT IVE DEMO CRACY
A ND LEG IT IM ATE POL I C Y -MAK I N G
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If we cannot solve our policy-making problems by a hole-in-one approach, like a direct appeal to liberty rights as trumps, what are our options? Are we left with a choice between populist, majority rule where the winner takes all, or rule by philosophers (or perhaps theologians) as envisaged in The Republic, book 6? If this was our choice, we would be in trouble since both alternatives are rather unattractive. Pure majority rule often leads to highly problematic outcomes involving discrimination of minorities, and rule by philosophers is indistinguishable from other forms of, seemingly meritocratic, oligarchy. But, fortunately the dichotomy between populism and philosophocracy is a false dichotomy. Democracy has many forms and populist democracy is only one of them (Gutmann 1993).
Democracy is not only a mechanism for the aggregation of preferences, as in pure populist democracy, but also a mechanism for an examination of and societal discourse about the preferences before they are aggregated. The legitimacy of a given policy is based not only on whether it was enacted according to the current legal rules, but also on the quality of deliberation preceding the policy, on the decisive reasons for the policy, and on its congruence with basic freedoms.
Bioethicists therefore have at least to acknowledge that in liberal democracies the question of getting the right policies implemented cannot be divorced from the question of what constitutes legitimate political procedures and discourse.
As the large literature on deliberative democracy shows, specifying the conditions for political legitimacy is in itself a contentious exercise and fraught with difficulty. There are many theories of deliberative democracy, each with its own normative foundation. In the following, I will mainly draw on the Rawlsian version as proposed by Rawls in ‘Political Liberalism’ (Rawls 1996) and on the considerations in Gutmann and Thompson’s ‘Moral Conflict and Political Consensus’ (Gutmann and Thompson 1990).5 This choice is made for two reasons, first because the practical implications of this version of deliberative democracy are relatively clear, second because its theoretical framework is congruent with the mainstream analytic tradition that also encompasses much of Anglo-American bioethics. I do, however, think that very similar conclusions would be reached if we applied the other main branch of thinking on deliberative democracy developed by Jurgen¨ Habermas (1992). There are distinct theoretical differences between Habermas and Rawls in the justification of deliberative democracy and its procedures (Habermas 1995; Rawls 1995), but very few differences at the pragmatic level of actual exercises of deliberative democracy.
5 Rawls himself only argues that his approach should be applied to the setting up and modifying of the basic structures of a given society, i.e. at the constitutional level.
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The basic premisses of deliberative democracy are (1) that there is an in practice irreducible plurality of reasonable comprehensive world-views in modern societies6 because of what Rawls calls the ‘Burdens of Judgment’;7 (2) that policy-making about fundamental issues should rely on public reason instead of the use of force;
(3) that the aim of the use of public reason is to reach a policy that is acceptable to all as citizens because it offers them fair terms of cooperation; and (4) that 1, 2, and 3 combined justify certain restrictions on public political debate about fundamental issues, especially that it has to proceed within the confines of public reason.
Within the context of deliberative democracy it is thus important to distinguish between different kinds of debate that may all be part of the wider policy-making process. Within a comprehensive world-view, in a philosophical debate, or when thinking through the issues for oneself, the adherence to public reason is not a requirement, it is only a requirement in the public debate, between persons holding different comprehensive world-views.
What exactly are the requirements for participants in the public debate in a deliberative democracy — the features that distinguish public reason?
The main requirement is a requirement for reciprocity in public discourse. Reciprocity has two components; it entails that the principles and standards that are proposed have to be principles and standards that are viewed as reasonable for everyone to accept as fair terms of cooperation, and that there is a willingness to discuss the fair terms that others propose. As Gutmann and Thompson point out, true reciprocity can only occur if there is mutual respect, and if the participants in the debate evince two particular civic virtues: the virtue of integrity and the virtue of magnanimity8 (Gutmann and Thompson 1990). Integrity in this context requires consistency of speech in different situations, performative consistency, and the willingness to recognize all the broader implications of the position one puts
6 See the quotation at the beginning of this chapter.
7 The burdens of judgement are those factors that lead reasonable people to hold different views on the same issues. Rawls enumerates the following six: ‘(a) The evidence — empirical and scientific — bearing on the case is conflicting and complex, and thus hard to assess and evaluate.
(b) Even where we agree fully about the kinds of considerations that are relevant, we may disagree about their weight, and so arrive at different judgments. (c) To some extent all our concepts, and not only moral and political concepts, are vague and subject to hard cases; and this indeterminacy means that we must rely on judgment and interpretation . . . within some range . . . where reasonable persons may differ. (d) To some extent . . . the way we assess evidence and weigh moral and political values is shaped by our total experience, our whole course of life up to now; and our total experiences must always differ . . . (e) Often there are different kinds of normative considerations of different force on both sides of an issue and it is difficult to make an overall assessment. (f ) Finally . . . any system of social institutions is limited in the values it can admit so that some selection must be made from the full range of moral and political values that might be realised . . . . Many hard decisions may seem to have no clear answer’ (Rawls 1996: 56 – 7; notes removed).
8 We will here only be discussing the civic versions of these two virtues. There are also personal virtues of integrity and magnanimity that affect our personal and intimate relations to others, but an exploration of them lie outside the scope of this chapter.
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forward. Magnanimity requires the recognition of the moral status of the opposing position (i.e. treating it as a moral view and not, for instance, as mainly a politically expedient view), openness to the possibility that I might come to change my own position, and a commitment to ‘search for significant points of convergence between our own understandings and those of citizens whose positions, taken in their more comprehensive form, we must reject’ (Gutmann and Thompson 1990: 82).
Rawls himself summarizes the requirement of public reason in this way:
What public reason asks is that citizens be able to explain their vote to one another in terms of a reasonable balance of public political values, it being understood by everyone that of course the plurality of reasonable comprehensive doctrines held by citizens is thought by them to provide further and often transcendent backing for those values. (Rawls 1996: 243)
When we enter the realm of public discourse concerning contentious issues, we have minimally to accept that there are other reasonable views than those we hold, and that the purpose of the public discourse is not to ‘win’, but to reach a solution that is mutually acceptable and respectful. In this way public discourse in a deliberative democracy differs substantially from standard philosophical discourse (see below).
Here it might be important to note that the account of reciprocity and the virtues of integrity and magnanimity is not inextricably connected to Rawls’s further claim about the goal of public policy-making being an overlapping consensus. Reciprocity in public discourse is necessary even if we believe that an overlapping consensus is not realistically achievable or not the right goal at all. If we, for instance, agree with Sunstein that what we should aim for in most circumstances is an ‘Incompletely Theorized Agreement’ (Sunstein 1995), we would still have to discuss in a context of reciprocity to reach such an agreement.
One attempt to specify further the requirements of deliberative democracy in an important, but contested, domain of public decision-making is the framework of accountability for reasonableness in the process of policy-making on priorities in health care developed by Norman Daniels and Jim Sabin (Daniels and Sabin 1997, 2002).9 It has four distinct components: publicity, relevance, appeals, and enforcement.
Publicity entails a call for explicitness and requires that the rationale for priority decisions be made accessible to the wider public and open for scrutiny. Relevance is a requirement to screen out irrationality in priority-setting. Priority decisions must be made only in accordance with reasons that reasonable people will agree are relevant and adequate. The appeals component is an institutional mechanism
9 I owe significant parts of my account of accountability for reasonableness to a collaboration with Andreas Hasman.
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that provides persons with an opportunity to dispute and challenge decisions that have gone against them, as well as providing organizations with an option to revise decisions in light of further arguments. Enforcement simply entails public or voluntary regulation of the decision process, to ensure that the three other components are maintained (Daniels and Sabin 1998).
A concrete decision process, which incorporates the components of accountability for reasonableness, will therefore have to meet requirements for both structure and content. An appropriate institutional setting must be put in place in the form of a group of reasonable people, and a procedure for appropriate deliberation amongst them established. An organizational structure that assures the dissemination of the group’s reasons and decisions to the public must also be implemented. Moreover, similar but separate decision processes will have to be set up to deal with appeals and enforcement of decisions internally. These are all requirements for the structure of the process. A different set of requirements relates to the content of the process of decision-making and the specification of appropriate deliberation. Daniels and Sabin think of the relevance component as a constraint on deliberation and contend that any rationale for a decision must be reasonable. A rationale is reasonable if it appeals to reasons that are accepted by people who are disposed to finding mutually justifiable terms of cooperation, as relevant to how the varied health needs of a defined population are met under reasonable resource constraints (Daniels and Sabin 1997).
This approach has been tried in a number of health care institutions and has been shown to produce agreement around results that are seen as legitimate by the various stakeholders (Martin et al. 2003).
IS T H E STA N DA RD MO D E L OF BI O ET H I C S
ANALYSIS INC O MPAT IBLE
W I TH DELIB ERAT IVE DEMO CRACY?
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The discussion so far raises an interesting question. Is the standard model of bioethics analysis incompatible with public discussion in a deliberative democracy?
By the standard model of bioethics analysis I mean the following process (this is clearly a simplification, but not excessively so). (1) A putative moral problem is identified; (2) it is analysed and sharpened in various ways, often to the point where it is stated that ‘We can now see that the problem is essentially . . . ’; (3) a number of solutions to this refined problem are canvassed, and counter-arguments claimed to be decisive are marshalled against all but one of them (or in some cases against all of them); (4) positive arguments in support of the remaining solution (or a