oxford handbook of bioethics

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new solution brought in at this stage) are presented;10 (5) a definitive conclusion is reached.

This model is an internalized variant of what James Sterba calls the ‘warmaking model of doing philosophy’ and describes in the following way:

I was once asked by a well-known philosopher why I talked to libertarians. At the time, I was dumbstruck by the question, but now I believe that it reflects the dominant way that philosophy is being done these days, and maybe even the dominant way that philosophy has always been done. It sees philosophers as belonging to different groups within which there can be a significant degree of sympathetic understanding but between which there can only be hostile relations, a virtual state of war. If you believe this is the case, then there really is a question about whether you should talk to your philosophical enemies. You may perchance say something that indicates certain problems with your own philosophical view, which may in turn be used against you, and, as a result, you may lose an important philosophical battle and your reputation may decline accordingly. (Sterba 1998: 2 – 3)

Sterba’s description is rather stark, but it is not too far off the mark.

Implicit in the standard model are a number of assumptions about the aims of philosophical analysis and the relationship between the view that is argued for, and the competing views — most importantly in the present context the assumption that most opposing views are not only wrong in some sense, but that this can also be shown decisively to be the case. The views are not only wrong; they are also irrational, or at least unreasonable. When the bioethicist enters the public debate, it is therefore with the firm conviction that most of the views being put forward by others have already been shown to be unreasonable. There is no reason to take account of them or to let them influence decision-making. Discussing them is only worthwhile as a tactical manoeuvre to get your own arguments on the table, or in order to show them to be unreasonable.

The standard model, and to an even greater extent the rhetoric of bioethics, imply that there is only one right solution to each policy-making decision, that it is possible to find this solution, and to know that it is the right decision. ‘Knowing that you are right’ is in general a bar to a positive engagement with the views of others,11 but ‘knowing that you are right after proper philosophical reflection’ can be even more problematic.

In contrast, theorizing about deliberative democracy proceeds from the assumption that, whereas there might be a right solution, it is often impossible to find this solution or to know that it is the right solution in any absolute sense. The best we can do is to outline the area of acceptable policies, and then choose a policy within this area through a deliberative, democratic process.

10It is a feature of much bioethics writing (and of philosophical argument in general) that the negative arguments against other positions are often more convincing than the positive arguments for the author’s own position.

11As is evidenced in many domestic rows.

If philosophers participate in the public discourse about contentious issues in the same way as they engage in philosophical discourse, they are very likely to breach many of the requirements for an engagement in public reason. But they will also have engaged in a social category mistake. Attempting to reach a legitimate public policy in a morally pluralistic liberal democracy is not a social activity of the same kind as trying to win a philosophical argument.

If all participants in a public debate adopted a war-making approach to the debate, we would eventually only have recourse to simple, non-deliberative voting for resolving our differences. Let us now move on to some more specific problems.

HOPE AND HY PE, DO OM AND GLO OM

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A specific problem arises in those cases where our efforts of public decision-making, including public debate and deliberation, take place at such an early state of the development of a given technology that the scientific uncertainty is very large. In such cases there will typically be two scenarios painted by the proponents and the opponents of the new development, a ‘Hope and Hype’ scenario promising untold benefits if the technology is developed and a ‘Doom and Gloom’ scenario threatening all kinds of risks from the new technology. In retrospect, it often becomes evident that both of the two scenarios were wrong, and often for the very same reason — they both overestimated the new technology and its powers. In the case of human genetics it does, for instance, appear likely that Gregory Stock’s Redesigning Humans will eventually be shown to fall within the ‘Hope and Hype’ category, and Francis Fukuyama’s Our Posthuman Future in the ‘Doom and Gloom’ category (Stock 2002; Fukuyama 2002).

Historically it is interesting that a significant segment of the early bioethicist community in the late 1960s and early 1970s were very sceptical towards the development of new medical technologies, seeing them as potentially dangerous, either because the technologies would increase the power of the medical profession, or because they would lay our lives open to more commercial influences. This technology-sceptical stream in bioethics seems to have been somewhat marginalized in recent times, at least in Anglo-American bioethics, where it has been replaced by a marked enthusiasm for new technologies that are seen as liberating. In contrast to this development in bioethics, there is still a significant sceptical attitude towards the blessings of new technologies in environmental ethics.

Generally our ethical analysis and our policy-making are likely to go astray if we do not get the scientific facts right, a point often made in debates concerning the moral status of the embryo, but they are equally likely to go wrong if we do not get the scientific predictions right. Both too enthusiastic and too pessimistic

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evaluations of the science and its practical implications can seriously bias ethical argument.

John Harris has pointed out many times that it must be the ends that justify the means, but this means that if we get our prediction of the actually achievable ends wrong, we may end up allowing, or prohibiting, the use of means that should not have been allowed or prohibited.

In a society where technology is generally seen as a good, the tendency to overestimate the good effects of new technology is strong. As Khushf and Best point out, following Horkheimer and Adorno:

Enlightened science promises the means for entering a realm of light and hope, but this means slides over into its opposite, resulting in an empty and dehumanizing rhetoric of justification. Minimally in the light of the accomplishments of science, we are forced to reassess what has been promised. One way of reading this history is to say that we should be sceptical of all utopian accounts that see the promised land emerging in this worldly terms. (Khushf and Best 2002: 37 – 8)

But underestimation may also occur. One example of this occurred in the ethical analysis of genetic testing. Before the development of gene-chips allowing the simultaneous detection of many gene variants, a lot of papers on the ethics of genetic testing and screening were written that explicitly relied on the empirical premiss that it was only possible to test for one or a few gene variants at the same time, and that testing and screening would therefore always be directed in the sense that one would always be looking for something specific. Worries about screening creating a genetic underclass were dismissed, because this could only happen if many genes could be screened at the same time. But we now know that the empirical premiss used in the argument was false.

Overestimation of the final impact of a given development may be a conscious rhetorical ploy, in which case it is clearly ethically problematic,12 but it may also be an effect of a tendency to analyse new technologies in isolation from other concurrent developments. At a given point in time there will often be many different approaches to the solution of a particular problem, e.g. many different therapies being developed for the same condition. If we look at each of these in isolation we are likely to overestimate its importance,

12 A subset of this issue is the ethical problems raised by far too optimistic predictions of timescale between initial scientific breakthrough and routine application. In the case of stem cells, the public was promised real benefits within five to ten years. Many years have now elapsed of the five to ten years and the promised therapies are still not anywhere close to routine clinical use. There are similarities to the initial enthusiastic presentation of gene therapy in the late 1980s and the later problems encountered, and some reason to fear that stem cell therapies will have an equally long trajectory between theoretical possibility and clinical practice.

It is clearly ethically problematic to raise false expectations in seriously ill people, and even more problematic if this is partly done from self-interest (e.g. to promote one’s own research in the media).

because we bracket the consideration that one of the other concurrent developments may be developed first and corner the market, may turn out to be better overall or better for a subclass of people with the condition. Even good technologies are in a competitive race, and if we forget then we will often hugely overestimate their future positive and negative impact (an error made by many phone companies in assessing the value of third-generation cell phone licences).

All of these problems could be solved for the bioethicist and the policy-maker if it was possible to get accurate, reliable, and unbiased estimates of the likely effectiveness and long-term impact of new scientific developments. Getting such estimates is, however, exceedingly difficult. It may be the case, as in the current stem cell debate, that the best experts all have an interest to defend and that their estimates of the success of the line of research they pursue is therefore likely to be consciously or unconsciously biased. But even where this is not the case, and where it is possible to find unbiased experts, predicting long-term impact is very difficult, partly for the reasons mentioned above concerning competing technologies, partly because long-term impact will depend on and interact with the social embedding of the technology. To give an example, it was predictable that the development of really small cell phones would change our modes of communication in profound ways, and perhaps predictable that they would become fashion accessories; but no one predicted (or could have predicted?) the immense success of the cell phone, not as a phone (i.e. a device for oral communication) but as a sender of small text messages, or the rapidly growing market in ring tones.

It may even be impossible for the researchers involved in a given research programme to provide the necessary facts for a proper policy analysis, because the science is moving forward very quickly. Believing some aspect of a developing technology to be a stable feature of that technology is therefore always dangerous. One of the members of the Geron Ethicist Advisory Board describes her experiences with the information given to the Board:

The Geron board was introduced formally to the notion of the hunt for hES [human embryonic stem] cells with a careful scientific explanation of the mechanism of the research and the motivation for the science itself. . . . A second focus of concern that arose early was the use of embryos. Our understanding was that embryos were graded (1 – 4) with grades 1 and 2 considered useable for implantation, and grades 3 and 4 considered too physically imperfect to be used. . . . We understood at that time that no embryos would be created for the purposes of research, that embryos would be donated under the most stringent system of informed consent, and that these embryos would have been discarded in any case. . . . In the next few months the science rapidly moved forward, and hence our elaborate rationale, although certainly interesting, became archaic. Since the norm for implantation was now two instead of five, many more embryos were available but would not be used by a particular

PATH DEPENDENCE A ND T HE ex ante

POSI T I ON

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Philosophical discussion of ethical issues and ethical policies sometimes takes place as if we are drawing policy on a blank slate, or deducing the right policy from first principles.

Reference to already existing regulation is only made in two situations, either to criticize it for being wrong, inconsistent, and incoherent, or conversely in consistency arguments allegedly showing that already existing policies imply certain views concerning ethics, for instance concerning the ethical status of the embryo.

But does it make sense to conceive of public policy-making as a series of unconnected acts where each can be considered on its own, without any reference to past decisions? Does where we are now, in terms of laws and policies, not at least to some extent determine where we can go and what means we should choose to get there?

There are reasons to be sceptical about the strength of consistency arguments from existing policy. In order to get the consistency argument off the ground, we almost always have to reconstruct the underlying justification for the policy, because such a justification is very rarely given explicitly, except if the decision is a judicial decision. There are usually many possible reconstructions, and committing the policy-maker to only one of these may be impossible.

Consistency arguments may, furthermore, fail completely if the policy is a result of a compromise, either because the policy-makers have openly engaged in a compromise with some other group, or because they have taken the views of some other group into account already when drafting the regulation (for instance, in order to ensure a smooth passage through the political process). If a regulation is based on a political compromise, it may well be the case that no one wants to defend or justify the position reached in the regulation, except as a legitimate result of a legitimate political process. This means that there is no argument to reconstruct, and no one saying A whom we can also commit to say B.

An example could be the abortion legislation in countries allowing abortion on demand until a certain gestational age. It is unlikely that many people would actually claim to have an argument that can justify the exact limit legislated in a specific country, but many more might be willing to accept it as a legitimate political compromise between those wanting a higher limit and those wanting a lower limit. Therefore, such laws do not necessarily imply that something radical is thought to happen to the moral status of the fetus or the moral rights of the mother when the gestational age in question is reached.

In implying further consequences of official policy we also need to take into account that there are limits to the preciseness with which one can draft regulation,

Would it then be inconsistent not to allow research using embryos with no connection to reproduction?

Michael Walzer has famously argued that society contains several separate ‘spheres of justice’ and that the application of principles of justice from one sphere to another is not necessarily warranted (Walzer 1983). Maybe there are also separate ‘spheres of consistency’ when we discuss the consistency of public regulations. This is not as strange an idea as it might perhaps initially seem.

Walzer’s argument for different spheres of justice is that different social goods are different, and that unless we understand and take account of this difference in our analysis of justice we will go wrong. He writes:

No account of the meaning of a social good, or of the sphere within which it legitimately operates, will be uncontroversial. Nor is there any neat procedure for generating or testing different accounts. At best, the arguments will be rough, reflecting the diverse and conflict-ridden character of the social life that we seek simultaneously to understand and to regulate — but not to regulate until we understand. I shall set aside, then, all claims made on behalf of any single distributive criterion, for no such criterion can possibly match the diversity of social goods. (Walzer 1983: 21)

In the same way as different social goods are different, the different social practices aimed at producing these social goods are different. The practices involved in reproduction and in securing the goods secured by reproduction are different from the practices involved in research. There is thus no prima facie reason to believe that arguments and conclusions valid in one of these areas can be transferred without modification to the other area.

In the area of reproductive ethics, the idea that there is a strong right to reproductive freedom or reproductive liberty has gained currency in recent years. If a given permissive legal regulation has been passed because of an appreciation of this right, then it is not immediately obvious that consistency requires the same kind of permissive regulation outside the sphere of reproduction. A right to reproductive liberty cannot, for instance, in itself support a permission to use embryos for non-reproduction-related purposes, like stem cell research!

In looking at consistency arguments in the public policy sphere we might also want to question whether ‘as morally acceptable’ is a transitive relation in this context. If p is as morally acceptable as q and q is as morally acceptable as r, have we therefore committed ourselves to the judgement that p is as morally acceptable as r?

Moral acceptability comes in at least two different forms, and the difference between them can be brought out by considering Tranøy’s analysis of moral disagreement and consensus. If two people A and B discuss the morality of p there are, according to Tranøy, three different possible outcomes:

(1)Person A and B can agree that p is unacceptable, i.e. both mean positively that p should not be accepted.

in pregnancy and after that only allow abortion if certain criteria are fulfilled. The gestational age that is the legal cut-off point for abortion on demand varies between countries, as one would expect of a result of local political compromise. No one tries to defend their particular cut-off point as the uniquely right one, but the policies are remarkably stable within each society. They have given women significant reproductive freedom, they have removed the harm previously caused by illegal abortions, and they have to some degree accommodated the rather common belief that fetuses are morally significant and that this significance increases through pregnancy. This stability is clearly a political or societal and not a philosophical stability. There are strong arguments on one side to allow abortion on demand throughout pregnancy (this follows from some personhood views of moral status and from some analyses of reproductive liberty as a human right) and there are on the other side strong arguments for never allowing abortion on demand (this follows from some views giving significant moral status to all human individuals). It is, however, rather obvious that a policy implementing one of these philosophical positions would be politically highly unstable.

Instituting a moratorium can also be a very useful and legitimate political technique. If there is genuine scientific uncertainty, a well-crafted moratorium blocking certain possibly problematic uses of a technology may allow time to resolve the scientific uncertainty before a final public policy decision is made. It could even be argued that in a deliberative democracy there should always be an initial moratorium, or at least a period of cautious development, while the necessary societal deliberation about the implications of a new technology takes place. Referring the issue at hand to a national ethical council or similar body often combines two functions: it creates a moratorium-like situation while the body deliberates, and it promotes wider societal discussion.

Like all other human activities, policy-making carries opportunity costs. There are a limited number of policy decisions that can be made (e.g. because of limits on parliamentary time or on the number of issues in which the executive can simultaneously invest political capital), and this entails that it is important to get the policy right the first time and/or to have a policy that is sufficiently flexible to accommodate new technological and social developments. This is often better achieved if there is no rush to comprehensive regulation, but more time to assess the real implications of a given technology.

Accommodating minority positions17 in different ways is not only politically expedient; it is also a way of showing proper mutual respect. If a society eventually decides to allow and support embryonic stem cell research, one way of accommodating those opposing this research could, for instance, be to provide generous

17 In a deliberative democracy it may be the case that the policy that is implemented is not the majority position but a position that is actually only held by a minority, if for instance the policy is passed owing to moral – political agreement in the third of Tranøy’s senses (see above). In that case it may be relevant to accommodate the majority position!