oxford handbook of bioethics

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T H E O R E T I C A L A N D M E T H O D O LO G I C A L I S S U E S

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M E T H O D S I N

B I O E T H I C S

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JA M E S F. C H I L D R E S S

INT RO DUC T ION: QUEST IONS

ABOUT METHO D

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IN the preface to the first edition of his classic work The Methods of Ethics, Henry Sidgwick noted its focus on ‘the different methods of obtaining reasoned convictions as to what ought to be done’ (Sidgwick 1962, p. v). He defined a ‘method of ethics’ as ‘any rational procedure by which we determine what individual human beings ‘‘ought’’ — or what it is ‘‘right’’ for them — to do, or to seek to realize by voluntary action’ (Sidgwick 1962: 1). One major reason for the widespread interest in methods of doing bioethics is to determine how best to guide human action. Hence, assessments of different methods consider, in part, how well a bioethical theory, framework, or perspective guides action — other criteria include clarity, consistency, coherence, completeness, and comprehensiveness, as well as congruence with moral experience (Beauchamp and Childress 2001, ch. 8). But, even on Sidgwick’s definition, there can be strong and weak conceptions of method. For instance, a method may illuminate an agent’s choices without fully prescribing or determining what he or she should do. Indeed, a method may provide a complex rather than a tidy answer to the agent who asks, ‘What should I (or we) do?’

Early bioethics, in the 1970s, was often viewed as a species of ‘applied ethics’: bioethics denoted the reflective activity of applying an ethical theory or ethical principles to the domains of the biological sciences, medicine, and health care.

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The language of ‘applied ethics’ implies more action guidance from theories or principles than is usually available, and it has now been largely discarded in favor of the language of ‘practical ethics’, a phrase that Sidgwick (1998) also used. Not all methods for addressing practical moral problems entail applying, in a deductivist fashion, ethical theories, frameworks, or perspectives.

The philosopher R. M. Hare (1996), in examining ‘the methods of bioethics’ (the title of one of his articles), observes that the designation ‘ethical or moral theories’ covers different kinds of activities, as captured, for instance, in their broad and narrow meanings. On the narrow conception of ethical theory, the task is to examine the logic of moral reasoning, and representative theories, often called metaethics, including naturalism, intuitionism, subjectivism, emotivism, and prescriptivism. Hare (1996) believes that we have to start with these narrow theories, because they can make the greatest contributions to bioethics, but he focuses instead on normative theories, such as utilitarianism, virtue ethics, and ethics of care. I too will concentrate on normative ethical methods and theories rather than on metaethics, while recognizing that the line between them is not always clear.

Other broad uses of the term ‘method’ encompass a variety of descriptive approaches. Observing the wide range of methods used in scholarly inquiry about physician-assisted suicide, Daniel Sulmasy concludes that scholars who have employed such methods as history, law, theology, philosophy, quantitative methods, ethnographic methods, and so forth, are all ‘properly called ‘‘medical ethicists’’, and their research is properly called ‘‘medical ethics’’ ’ (Sulmasy 2001: 259). However, this usage is too broad to be helpful. Although numerous methods of scholarly inquiry can and do make important contributions to medical ethics or bioethics, not all those contributions actually involve doing medical ethics or bioethics in the normative sense, and I will limit my attention to methods in normative bioethics. This restriction in no way denigrates other methods and their contributions — indeed, they are frequently illuminating, and often indispensable. Nevertheless, a scholarly inquiry into bioethics, or into some topic within bioethics, does not necessary translate into ‘doing bioethics’, however important it may be for ‘doing bioethics’.

This chapter then will stay largely within boundaries of normative bioethics. It will examine major types of principle-based methods (consequentialist, deontological, and pluralistic principlist methods), case-based methods, virtue ethics, ethics of care, and communitarian perspectives, along with some critical points from feminist perspectives and from rule-based theories. One cautionary note is in order: most of these types of method, theory, or perspective encompass a number of approaches that involve some degree of family resemblance. Since it will be impossible to examine all of these approaches in detail, I will highlight some major themes and criticisms, discuss a few representative positions in more detail, and sketch a few of their implications for practical decision-making about physician-assisted

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suicide and active euthanasia, topics addressed by proponents of all these methods, theories, and perspectives.

PR INCIPL E-BASE D MET H O D S

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A principle-based method, some claim, dominates bioethics. This claim may be accurate when the whole range of principle-based positions is surveyed. However, principle-based methods encompass a wide and rich variety of more specific methods, all of which stress principles without necessarily sharing much more. Minimally, a bioethical method that is principle-based must hold that general moral action guides are central to moral reasoning in bioethics. It need not, however, reduce all moral reasoning to explicit principle-based reasoning. It may concede, for instance, that appeals to principles most often occur when there is uncertainty or conflict about the appropriate course of action.

Action guides are frequently distinguished into principles and rules. The most general action guides — for instance, utility or respect for autonomy — are usually labeled ‘principles’ while the more specific action guides — for instance, respect for confidentiality — are usually labeled ‘rules’. Nevertheless, the terms ‘principles’ and ‘rules’ are frequently used interchangeably, and the lines between them are often unclear because they reflect different degrees of generality and specificity. I will later consider different interpretations of the relationship between principles and rules; for now I merely note that rules are often regarded as derivative from broader principles (Solomon 1978).

No single approach can be called the principles approach; hence, criticisms directed against one principle-based method may not apply to other such methods. For instance, criticisms aimed at a principle-based deontological theory may not apply to a principle-based consequentialist theory. Sometimes the language of ‘principles’ is mistakenly restricted to deontological theories, that is, theories holding that some inherent or intrinsic features of acts, such as truthfulness or lying, make them right or wrong. This restriction is misleading because consequentialist theories, which focus on the probable effects of actions, may also be principle-based. For example, utilitarianism, the most prominent contemporary consequentialist theory, appeals to the principle of utility in assessing acts or rules.

Consequentialist Principles

Most consequentialists focus on both the intended ends and anticipated effects of actions but consider those intended ends only in relation to the action’s probable overall effects. Many, perhaps most, contemporary consequentialists are also utilitarians: the principle of utility provides the fundamental point of reference for their assessment of actions. This principle — in its simplest form, the requirement

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to produce the greatest good for the greatest number — presupposes some values for the evaluation of states of affairs that might result from different actions. Prominent values include pleasure, happiness, and individual preferences, but a variety of other values can be employed. Whatever the locus and range of values, consequentialists take different tracks, depending on whether they focus on the effects of particular actions (act-consequentialist methods) or on the effects of types of action and hence rules governing those types of action (rule-consequentialist methods).

Act-Consequentialist Methods

Contemporary act-consequentialists analyze the probable consequences of different courses of action and assess those actions according to their probable balance of good effects over bad effects. Many act-consequentialists are utilitarians. Act-utilitarians doing bioethics, such as the late Joseph Fletcher (1966) or Peter Singer (1993), apply the principle of utility directly to different possible acts in a situation to determine which would probably produce the greatest good for the greatest number; that act is then right and even obligatory. Act-utilitarians may face uncertainties about which course of action would satisfy the principle of utility, but they never face moral dilemmas created by conflicting principles.

No moral dilemmas arise because act-utilitarians recognize only one principle (utility) as binding and view other principles and rules as mere maxims or rules of thumb that may usefully summarize agents’ experiences in the application of the principle of utility. Such principles or rules can help agents see the tendencies of different acts to produce good or bad consequences, but they lack prescriptive power. In short, the principle of utility binds, while other principles and rules, as generalizations based on past experience, only illuminate decisions. From the standpoint of the act-utilitarian, both rule-utilitarians and rule-deontologists are more alike than different: both make too much of principles and rules (other than utility) and too little of the consequences of particular acts. Such principles and rules create victims: people suffer bad consequences as a result of others’ adherence to principles and rules (other than utility). It is not surprising then that act-utilitarians often support changes in laws, policies, and practices to allow agents to assist in suicide or to engage in voluntary active euthanasia because such actions can in some circumstances relieve patients’ pain and suffering (Singer 1993).

Critics contend, among their other charges, that act-consequentialists, including act-utilitarians, fail to attend to the necessity of principles and rules to solve or at least to reduce problems of coordination, cooperation, and trust in human interactions. For example, G. J. Warnock (1971) considers the expectations that would be appropriate in a clinical encounter between an act-utilitarian physician and a patient. He notes that the patient could only expect the physician to attempt to cure him of his afflictions ‘unless his [the physician’s] assessment of the ‘‘general happiness’’ leads him to do otherwise’ (Warnock 1971: 33). Asking the act-utilitarian physician

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to declare his intentions truthfully or to promise to consider only the patient’s welfare, in accord with the Hippocratic tradition, would not be helpful because all the physician’s declarations and promises would themselves be subject to utilitarian calculation. Trusting that the act-utilitarian physician would act only or even primarily in the patient’s best interest would be unwarranted because such a physician must always, in every situation, attend to the greatest good of the greatest number. Such problems of trust, coordination, and cooperation lead many utilitarians and other consequentialists to focus on rules rather than only on particular acts.

Rule-Consequentialist Methods

Many rule-consequentialists, as already suggested, are utilitarians, but some have a different and larger set of considerations than happiness, pleasure, or individual preferences for evaluating the consequences of various actual and proposed moral rules. Brad Hooker (2002) provides a major recent example of a well-developed ruleconsequentialist approach. He contends that the ethical assessment of acts should be based on rules that can be justified impartially and that impartial justification occurs if and only if the reasonably expected overall value of the general internalization of those rules by the overwhelming majority is greater than the reasonably expected overall value of any alternative rules. In short, we have impartially justified rules if those public rules internalized by ‘the overwhelming majority in each new generation’ would have the greatest expected value and their implementation would be cost-effective (including the costs of internalization) (Hooker 2002). This method employs rules that are justified by their anticipated overall consequences if implemented.

Clearly this method presupposes a different moral psychology than the one we find in act-consequentialism. Hooker contends that his version of rule-consequen- tialism does not collapse into act-consequentialism because the moral agent aims at justifiable rules rather than at overall maximization of the good — the rules are designed to achieve that end. Furthermore, his moral psychology recognizes that human agents are susceptible to both cognitive errors and affective distortions, including impure motivations, and these points enter into his view of different rules (Hooker 2002: 187).

Several questions arise. Questions about the relevant values plague consequentialist theories. Despite the apparent simplicity of consequentialism, the debates about values are as serious as the debates about principles in deontological approaches. For Hooker (2002), the relevant value is objective well-being, and he adds distributional patterns that assign some priority to the worst off. In addition, questions arise about specification: What counts as an ‘overwhelming majority’? How do we choose between actual rules that function fairly well and possible rules whose effects we may not be able to predict with great certainty? And what evidence is required for determining the probable balance of expected value and disvalue of possible rules?

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One of Hooker’s main examples concerns a rule that would permit euthanasia under certain conditions. Such a rule might appear to be prima facie warranted because it would respect autonomous choices and reduce suffering — both important consequences. Whether, however, it would be ethically justified overall depends on a reasonable prediction and assessment of its total impact if it were internalized by an ‘overwhelming majority’.

Major concerns focus on whether allowing euthanasia would be accompanied by an unacceptably high level of intentional abuse and would erode communal inhibitions on killing the unconsenting innocent. Hooker recognizes that any answers to these questions must be at least ‘partly speculative’ (Hooker 2002: 186). The best judgment must be based not only on the prediction and assessment of probable outcomes of a permissive rule but also on an appreciation of the costs — in suffering and disrespect for autonomous choices — of current prohibitive rules (Hooker 2002: 187). In view of the facts of human psychology — susceptibility to both cognitive errors and affective distortions, including impure motivations — Hooker finds good reasons for imposing and enforcing ‘tight restrictions on the use of euthanasia’ (2002: 187). Then he concludes: ‘With rigorously enforced restrictions, a rule allowing euthanasia, even active euthanasia, has (I believe) greater expected value than a complete ban’ (2002: 187). In response to those who might suppose that empirical evidence from the experiment with euthanasia in the Netherlands would be helpful and perhaps even decisive, Hooker stresses the divergent interpretations and evaluations of that experiment, most of which reflect different ethical viewpoints (Hooker 2002: 187). (For a rule-utilitarian argument for not treating and even for ‘active termination by anesthetic’ of certain ‘defective [sic] newborns’, see Brandt 1992.)

Deontological Principles

Deontological approaches are usually contrasted with consequentialist ones. At a minimum, deontologists hold (1) that some features of actions other than or in addition to their consequences make those actions right or wrong, obligatory, or optional, and (2) that deontological considerations always, generally, or sometimes trump consequentialist considerations. Even if a bioethical theory recognized (1) but held that consequentialist considerations always triumph in a conflict, that theory would not be considered deontological.

While the label ‘Kantian’ is now often used rather than ‘deontologist’ for such positions, that common usage is more likely to distort than to illuminate. To be sure, Immanuel Kant and later interpreters of his ethical theory have greatly influenced modern bioethics, but the sources of deontological theories are broader, and few contemporary bioethical approaches are Kantian in a strict sense even if they draw

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on some Kantian language and themes, such as human dignity, autonomy, and respect for persons. Onora O’Neill (2002) is a distinguished exception. Indeed, deontologists in bioethics are as likely to draw on religious sources, texts, and traditions as on Kant and the Kantian tradition.

Some contemporary deontological approaches to bioethics are secular in nature, even if partially inspired by religious perspectives. For instance, Robert M. Veatch (1981, 1995), whose position I will discuss later as a pluralistic principle-based approach with a lexical or rank order, identifies several deontological principles (veracity, fidelity to promises, avoidance of killing, autonomy, and justice), which collectively take priority over consequentialist principles. Hence, he satisfies both conditions for a deontological theory. In addition, Kevin Wildes (2000) affirms deontological principles, based on natural law and reason, but he also notes the absence of the epistemological conditions for securing agreement on those principles in our pluralistic society.

In contemporary debates, two major deontological principles are often viewed as competitors: sanctity of life and respect for autonomy. They may point in different directions in debates about assisted suicide and active euthanasia. Defenders of a principle of sanctity of life usually oppose those acts and any moral, professional, or legal rules that would allow those acts, while defenders of respect for personal autonomy often (but by no means always) recognize the moral rights of individuals to choose suicide or euthanasia, and of others, including health care professionals, to assist them in committing suicide or to carry out the request for euthanasia. Hence, two prominent examples of deontological principles in contemporary bioethics appear on the side of libertarians — for example, the earlier Engelhardt (1986) — and on the side of religious thinkers with a commitment to the sanctity of life — for example, Pope John Paul II (1995) and Paul Ramsey (1970, 1978).

In the next section, on pluralistic principlism, I will examine the various moves that deontologists make. There I will explicate principle-based approaches that recognize at least one deontological principle and at least one consequentialist principle and then have to connect those principles to concrete cases through such maneuvers as application and deduction, specification, or balancing.

Principlist Approaches

Pluralistic Principlism

The term ‘principlism’ was coined by critics (Clouser and Gert 1990) to designate and disparage a particular principle-based approach to bioethics, especially the one associated with Principles of Biomedical Ethics by Tom L. Beauchamp and James F. Childress (1979 – 2001). Even though Clouser and Gert would oppose any