oxford handbook of bioethics

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principle-based framework, for reasons that will be clear later, their main target, designated ‘principlism’, is an ethical framework that employs several general and unranked principles that are all prima facie binding. A broader interpretation of principlism would encompass a wide variety of positions that appeal to moral principles, rules, and other guidelines, including some positions that rank principles and rules.

Many principle-based approaches incorporate consequentialist principles along with non-consequentialist ones without deriving one set from or reducing it to the other; for instance, a principle of utility may be included on equal footing with principles of respect for autonomy and justice. Such approaches can be called pluralistic. In this chapter, then, ‘principlism’ will refer to pluralistic principlebased positions that recognize both deontological and consequentialist principles and hence have to develop ways to address actual and potential conflicts within and between these two kinds of principles, particularly in moving from principles to cases in order to guide action.

Principlists differ greatly in the principles they affirm, how they justify those principles, and how they connect them to concrete cases. In Principles of Biomedical Ethics (5th edn., 2001, as well as earlier editions), Beauchamp and Childress identify four primary principles — respect for autonomy, non-maleficence, beneficence (including utility), and justice — and several derivative rules — veracity, fidelity, privacy, and confidentiality — along with various other rules, such as informed consent. Others have called this framework the ‘four principles approach’ (Gillon 1994; Gillon and Lloyd 1994). These principles and derivative rules are all prima facie binding; that is, they are binding other things being equal, but each can be outweighed in a particular context by another principle or rule. However, the principles’ different weights cannot be assigned in advance; they can only be determined in particular contexts in addressing cases or policies.

In a similar vein, the influential National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (1978) identified three unranked, basic principles that should govern research involving human subjects: beneficence (which includes non-maleficence), respect for persons (which includes respect for autonomous choices and protection of persons who are non-autono- mous), and justice — principles that still guide federally funded research in the United States (see also Childress et al. 2005).

As previously noted, Robert Veatch, in A Theory of Medical Ethics (1981) and subsequent works (e.g. 1995), offers a different list, but one that has substantial overlap with the above approaches: beneficence, contract-keeping, autonomy, honesty, avoiding killing, and justice. He also recognizes several moral rules, such as informed consent. The major difference between Veatch’s principle-based method and the two already mentioned in this section is that he offers a rank order of his principles. (I will later examine Veatch’s method of lexical ranking for resolving conflicts among these principles and rules.)

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Rule-Based Critique

One major type of criticism of principlism holds that broad, general moral principles — of the sort associated with Beauchamp and Childress’s work — are unnecessary because specific moral rules, such as non-deception, and moral ideals, such as going out of the way to help others, cover the whole moral terrain; that principles are too general and vague to guide action; and that, in the absence of a strong theory, it is not possible to resolve conflicts among principles (Clouser and Gert 1990). This critique, which can be described as a rule-based (or strong theory-based) approach, attacks any principle-based approach. Clouser and Gert write: ‘for all practical and theoretical purposes, there are no moral principles’, and ‘Our quarrel is not so much with the content of the various ‘‘principles’’ as it is with the use of ‘‘principles’’ at all’ (Clouser and Gert 1990: 235, 220). Nevertheless, they mainly target a pluralistic principlist approach that does not rank principles or provide a clear-cut decision procedure for resolving actual or potential conflicts.

Regarding the charge that moral principles are unnecessary and moral rules are sufficient, principlists could respond that they too recognize moral rules, often derived from their principles; for instance, rules of voluntary, informed consent can be derived from the principle of respect for persons or respect for autonomy. However, they doubt that all that is important in moral principles can be fully captured in specific rules, such as the ones proposed by Gert and colleagues: don’t kill; don’t cause pain; don’t disable; don’t deprive of freedom; don’t deprive of pleasure; don’t deceive; keep your promise; don’t cheat; obey the law; and do your duty (Gert et al. 1997). These rules largely specify the harms that are to be avoided under the general requirement — what others might call a principle — of nonmaleficence, but they do not adequately express what many principlists construe as obligations of respect for autonomy, beneficence, and justice.

Since space does not permit a full discussion, a single example must suffice. Elsewhere I have argued (Childress 1982) that neglect of a principle of respect for autonomy leads Gert and his colleagues to bizarre interpretations of particular cases, especially in their discussions of paternalism, as is evident in their reasoning about a particular case: Following a serious accident, a patient while still competent refuses a blood transfusion on religious grounds but then he falls unconscious and his physicians believe he will die unless he receives a transfusion. Gert and Charles Culver (1979) argue that the physician’s provision of a blood transfusion under these circumstances would be paternalistic because, after the patient regains consciousness, it would lead to a violation of either the moral rule against deception or the moral rule against causing pain. If the physicians fail to tell the patient, they would violate the moral rule against deception; if they tell him, they would violate the moral rule against causing pain.

Gert and Culver are forced to take such a circuitous and problematic path of moral analysis precisely because they neglect the principle of respect for autonomy.

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They fail to see that the reason the transfusion is paternalistic, and prima facie wrong, is that it violates the patient’s autonomously expressed wishes and choices in order to provide a medical benefit (Childress 1982). As a result, the Gert – Culver analysis implies that if the patient dies without regaining consciousness, no paternalistic or wrongful act has been committed, because no moral rules have been violated.

The content of the moral rules proposed by Gert and colleagues does not adequately express the principle of respect for persons and their autonomy; such moral rules as ‘do not deprive of freedom’ will not cover all the critical cases involving self-determination. Nor will their subsequent expansion of this moral rule adequately address this problem; the later expansion appears in the interpretation added in parentheses after ‘Do not deprive of freedom (includes freedom to act and from being acted on)’ (Gert et al. 1996: 44). Although this expansion comes closer to addressing the problem created by the narrow rule, it does so only by building in enough to bring the rule closer to a principle, and clarity would be served by explicit recognition of a principle of respect for autonomy.

Regarding the charge that principles are too vague to guide action, principlists can respond that they too seek to specify their principles in rules that move closer to concrete action guidance. And they attempt to resolve conflicts in various ways, for instance, through lexical ordering, specification, and constrained balancing — all methods that will be examined in the next section on ‘From Principles to Cases’. Even so, many principlists, especially those who seek ‘reflective equilibrium’ in a coherentist strategy, will not satisfy the Gert et al. requirement of a strong and unified theory: ‘the value of using a single unified moral theory to deal with the ethical issues that arise in medicine and all other fields, is that it provides a single clear, coherent, and comprehensive decision procedure for arriving at answers’ (Clouser and Gert 1990: 233; for an examination of reflective equilibrium, see Chapter 2, by John Arras, in this volume). For many principlists, including this one, that goal is unrealistic and efforts to realize it are misguided and ultimately distort morality and moral decision-making.

From Principles to Cases

Moral principles require interpretation because they are indeterminate. It is often unclear whether a case falls under a principle or rule; a single principle or rule may point in two different directions in the same situation; and there may be apparent or real conflicts among principles and rules — perhaps even dilemmas as well as interpersonal conflicts. Henry Richardson (1990) has identified three models of connection between principles and cases: (1) application, which involves the deductive application of principles and rules, (2) balancing, which depends on intuitive weighing, and (3) specification, which proceeds by ‘qualitatively tailoring our norms to cases’. I will use these three models for analytic purposes (without

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considering and assessing Richardson’s constructive argument). I will indicate how these models become even more illuminating when we consider two dimensions of moral principles (and rules): (a) their meaning, range, and scope of application (e.g. broad or narrow), and (b) their weight, strength, and stringency (e.g. absolute, prima facie, or suggestive).

These two dimensions are closely related rather than totally independent. For instance, if we interpret ‘lying’ as ‘any intentionally false or deceptive statement’, it is utterly implausible to defend an absolute rule against lying. However, if we understand ‘lying’ as ‘deliberately deceiving someone who has a right to the truth’ — another definition commonly offered for lying — it is not implausible to hold that a rule against lying, with this meaning, range, and scope, is absolute. But then all the important moral analysis in conflict cases would center on who has a right to the truth in particular circumstances.

Applying Principles

As I noted at the outset, bioethicists now generally eschew or at least criticize the language of application. This point holds for most principlists as well as for their critics, even though act-utilitarians may reasonably be viewed as applying the principle of utility. While there may be some genuine applications of principles to concrete cases, the language of application does not cover all or even the most significant connections between principles and particular judgments about cases. Not all such connections involve rational deduction of particular case judgments from general moral principles. On the one hand — as will be developed further in conjunction with casuistry — most principlists concede that particular case judgments are often made in relative independence of general moral principles. We often know what we ought to do without explicit reference to general moral principles even if we could articulate such principles if we were challenged to do so. On the other hand, principlists can and should recognize that judgments about particular cases can and sometimes should also lead us to modify our general moral principles.

The application framework can function effectively only where we can assume that (a) the principle’s scope and range of applicability can be firmly established, (b) the principle’s weight or strength can be established a priori, and (c) the principle will never come into conflict with other equally significant principles. In concrete cases, conflicts between moral principles — e.g. between benefiting patients and respecting their autonomous choices — generate moral perplexities that lead to adjustments in (a) or (b). In such situations, we often proceed by specifying or balancing the principles in conflict. Specifying principles is a way to try to reduce or eliminate the conflict; balancing principles is an effort to resolve the conflict through determining which principle outweighs the other in the circumstances.

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Some bioethicists seek to resolve conflicts not by specifying or balancing moral principles but by arranging them in some a priori order. This represents yet another version of the application – deduction framework for connecting principles to concrete cases. For instance, a bioethical framework might hold that a rule against killing always outweighs a principle of beneficence or — in an example that combines specification with a rank order — that the principle of respect for autonomy always overrides the principle of beneficence when the only beneficiary is the competent person whose wishes, choices, or actions are at stake.

Much of Robert Veatch’s work, including A Theory of Medical Ethics (1981), attempts to find a defensible lexical ordering of principles, which can provide a framework within which some balancing can occur. Focusing on what he considers to be the relatively neglected but critical task of resolving conflict among competing principles, he proposes a ‘mixed strategy’ (Veatch 1995). This ‘mixed strategy’ presupposes a sharp distinction and separation between consequentialist principles (beneficence and non-maleficence, which are consequence-maximizing) and non-consequentialist principles (veracity, fidelity to promises, avoidance of killing, autonomy, and justice). While moral agents can balance various consequentialist principles and various non-consequentialist principles, they cannot balance consequentialist principles against non-consequentialist ones. Instead, there is a lexical rank order: the balanced non-consequentialist principles are lexically ranked over the balanced consequentialist principles (Veatch 1995). Such an application – deduction framework is subject to the same challenges that confront other application – deduction frameworks: plausible counterexamples.

Specifying Principles

Specifying general moral principles is another way to connect them to particular cases. This process of specification presupposes a distinction between general and specific and between degrees of generality and specificity. However general our moral principles — for example, respect for personal autonomy or justice — we interpret them in part by formulating them more specifically or by delineating the types of cases that we believe fall under them. This process is inevitable because, as R. M. Hare observes, ‘any attempt to give content to a principle involves specifying the cases that are to fall under it . . . . Any principle, then, which has content goes some way down the path of specificity’ (Hare 1989: 59). Indeed, drawing on the distinction between principles and rules, it is plausible to view many rules in bioethics as specifications of broad principles so they can function as concrete action guides. For instance, rules of voluntary, informed consent specify the requirements of the principle of respect for persons and their autonomous choices.

Specifying ethical principles is often indispensable and valuable for action guidance, especially but not only in conflict situations. In face of apparent moral dilemmas, specification always merits a trial to see if the conflict can be avoided,

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eliminated, or reduced. How far the method of specification can be expected to succeed will depend in part on fundamental beliefs about the moral universe, including harmony and conflict within that universe. It is important to note that specification proceeds by restricting the range or scope of a principle’s applicability, rather than by adjusting its weight or strength. However, one effect of narrowing a principle’s range or scope of applicability may be to increase its weight or strength within that narrower range or scope.

A good example of specification appears in the way Roman Catholic moral theology has over time interpreted the Decalogue’s prohibition of killing. This use of specification is complex because it is combined, as specification often is, with application and deduction and with absolutism: ‘from the beginning, faced with the many and often tragic cases which occur in the life of individuals and society, Christian reflection has sought a fuller and deeper understanding of what God’s commandment prohibits and prescribes’ ( John Paul II 1995, para. 55). Specification was undertaken in light of what the Church deemed to be fundamental and unchanging beliefs and values — human beings as created in God’s image and God’s sovereignty over human life. In this light, the Church determined the precept’s meaning by restricting its range and scope of application in at least two ways: first, to innocent human life; second, to direct action. Hence, given the first restriction, killing in self-defense, warfare, and capital punishment could be justified. Given the second restriction, a few cases of indirect fetal death (e.g. in the case of ectopic pregnancy) and some cases of letting patients die could be justified.

Specification has been praised as a way to reduce the role of intuition in concrete decisions (Richardson 1990), but there is debate about how far it can actually succeed in doing so. Some critics suggest that balancing occurs in the very process of specification or at least that specification falls prey to the same problems that many see in balancing. As John Arras asks: ‘what motivates and guides the modification and specification of abstract principles, what compels one to lard them with qualifying clauses, if not precisely the sort of countervailing values and principles encountered by the principlist [engaged in balancing]?’ (Arras 1994: 997). Specification thus may be as arbitrary as intuitive balancing in cases of conflict, especially in the absence of controls over the interpretation of key moral categories, such as ‘lying’ or ‘killing’.

Some specification, as noted earlier, is unavoidable as part of the process of giving concrete content to broad, abstract principles, and it enables principlists to avoid or rebut some of the charges leveled by the strong rule critics. Indeed, specification generates rules. In addition, in conflict situations, specification, as developed by Richardson (1990), and extended by David DeGrazia (1992) in ‘specified principlism’, is promising. Beauchamp and I have also featured this strategy in later editions of Principles of Biomedical Ethics (1994, 2001; for a critique, see Strong 2000, with a response by Beauchamp 2000). However, as suggested above, specification’s overall value in connecting principles and particular judgments in

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situations of apparent conflict will depend in part on more fundamental beliefs about whether moral conflict, not only between people but also within the moral universe, is inevitable, since the goal of specification is to reduce if not eliminate those conflicts.

Balancing Principles

While specification addresses the meaning, range, and scope of principles, a second question also arises: How much weight, or what degree of stringency, do different principles have in relation to each other if they come into conflict?

If moral principles are more than merely suggestive, illuminative, or advisory, then it is important to determine just how binding they are in order to address any conflicts that emerge. Absolutism presents one extreme possibility: absolutists maintain that some moral principles and rules are absolutely binding whatever circumstances arise. But they face irresolvable moral dilemmas if they recognize more than one absolute principle and those principles come into conflict. As a result, absolutists often carefully specify the meaning, range, and scope of their principles in order to avoid such conflicts (see Ramsey 1968, 1970).

Another possibility — discussed above under application — is to try to establish a lexical or rank order that would itself be absolute. However, this approach too seems implausible in the face of counterexamples that appear to constitute legitimate exceptions: it is hard to establish an absolute priority for all cases. A single-principle approach could be absolutist, as act-utilitarianism is, but then it will be forced to view all other principles (and rules) as mere maxims or rules of thumb with illuminative but no prescriptive power.

Yet another approach — one often associated with principlism in its narrow sense — views moral principles as prima facie or presumptively binding, rather than as absolutely binding or lexically ordered (Beauchamp and Childress 2001). It thus balances various principles when they come into conflict in particular cases, if the process of specifying the principles does not eliminate the conflict. An act is morally right or obligatory in so far as it has the features that, according to the relevant principles, establish moral rightness or obligatoriness. For example, an act is right in so far as it is truthful, wrong in so far as it is a lie. However, a particular act, in particular circumstances, may have features that express some principles while contravening others; for instance, a truthful act may also be unjust or cause harm. In such a case, the agent must determine whether one principle or the other is weightier or stronger, a judgment that cannot be made on the basis of prior, abstract formulations.

In part to reduce (but not eliminate) the role of intuition, Beauchamp and Childress (2001) offer several conditions for restricting or constraining judgments about balancing conflicting prima facie moral principles. These conditions are:

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1Better reasons can be offered to act on the overriding norm than on the infringed norm . . .

2 The moral objective justifying the infringement must have a realistic prospect of achievement.

3The infringement is necessary in that no morally preferable alternative actions can be substituted.

4The infringement selected must be the least possible infringement commensurate with achieving the primary goal of the action.

5 The agent must seek to minimize any negative effects of the infringement. 6 The agent must act impartially in regard to all affected parties . . .

(Beauchamp and Childress 2001: 19 – 20)

These conditions or constraints express the logic of prima facie principles. Prima facie principles are weightier or stronger than mere maxims or rules of thumb, but lighter or weaker than absolute principles. They are morally binding other things being equal. Hence, in a case of conflict, infringing or overriding one prima facie principle in order to protect another prima facie principle requires attention to various circumstances, including the often overlooked or neglected conditions of necessity, or last resort, and least infringement. Nevertheless, according to its critics, this form of principlism still relies excessively on intuition, whatever procedures it introduces to reduce the role of intuition in the process of balancing its various principles and rules.

Instead of viewing application, balancing, and specification as three mutually exclusive models, it is better, I believe, to recognize that all three are important in parts of morality and for different situations or aspects of situations, as well as often intertwined and overlapping. Sometimes principles (and rules) can be applied, and sometimes they need to be specified, but at times conflicts may emerge that can only be resolved by (constrained) balancing. It is a substantive, and not merely a formal, moral debate as to which method works where and when.

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The Gert – Clouser critique, as we have seen, faults principlism for failing to develop a rationalistic, unified theory with concrete directives for action (in the form of rules). According to this critique, principlism is insufficiently ‘top-down’ and deductivist. By contrast, proponents of case-based methods charge that principlism is too ‘top-heavy’ and ‘top-down’ because it fails to attend sufficiently to particular judgments about cases. Case-based methods involve a ‘bottom-up’, inductive approach to ethical justification. Casuistry, as one case-based approach, can be defined as ‘a method for arriving at justifiable decisions about what to do in specific cases’ (Strong 2000). There are several important case-based and casuistical methods (Brody 1988, 2003; Strong 2000; Kuczewski 1997), but I will concentrate

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on the casuistical approach offered by Albert Jonsen and Stephen Toulmin in their influential book The Abuse of Casuistry (1988), and in their various individually authored articles.

The Abuse of Casuistry claims, among other points, (1) that ‘casuistry is unavoidable’, (2a) that ‘moral knowledge is essentially particular, [(2b)] so that sound resolutions of moral problems must always be rooted in a concrete understanding of specific cases and circumstances’, and (3) that moral reasoning proceeds by paradigm cases (moral precedents) and analogical reasoning ( Jonsen and Toulmin 1988: 330). The first point (1) is relatively uncontroversial. While the essential particularity of moral knowledge (2a) can be interpreted in several different ways, major qualifications are necessary on any interpretation; however, (2b) is defensible. Finally, while identifying an important feature of moral reasoning, the last claim (3) tends to exaggerate the role of this mode of reasoning to the neglect of principle-based reasoning.

In explicating and justifying claim (2a) about the essential particularity of moral knowledge, The Abuse of Casuistry vigorously resists what Toulmin had earlier called ‘the tyranny of principles’ ( Toulmin 1981). This rhetoric is exaggerated, because, in fact, Jonsen and Toulmin have as their target not the inevitable tyranny of any and all principles but only the tyranny of certain conceptions of principles, that is, ‘eternal, invariable principles, the practical implications of which can be free of exceptions or qualifications’ ( Jonsen and Toulmin 1988: 2). They contend that such principles lead to deadlocks and fruitless standoffs, among other problems. In short, this casuistry-based attack on tyrannical principle-based methods focuses on absolutist versions, rather than on versions that view principles and rules as prima facie binding and require specification, balancing, and other modes of interpretation in situations of decision.

This rhetoric is also overblown because Jonsen and Toulmin themselves do, in fact, recognize principles. At one point, they state that their aim is to argue for ‘good casuistry’, that is, casuistry ‘which applies general rules to particular cases with discernment [in contrast to] bad casuistry, which does the same thing sloppily’ (Jonsen and Toulmin 1988: 16). And elsewhere Toulmin (1981) concedes that principles have special relevance and importance in relations between strangers rather than intimates. If so, then one important question is how we can best characterize relations in research and also in medicine and health care — they are often relations between strangers rather than relations between intimates.

In view of their nod to principles, how should we understand and assess Jonsen and Toulmin’s claims about the primacy or priority of particular judgments? On the one hand, such a claim might mean that particular judgments came first chronologically and gave rise to general judgments (principles). Even if that claim could be established — a difficult and perhaps impossible task — its implications may be quite limited for the ways we are now acculturated and reason ethically. We all participate in communities of moral discourse that embody and extend traditions of

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moral reflection. These traditions incorporate both general principles and particular case judgments, including paradigm cases, and these communities build both into their formal and informal moral instruction. Indeed, moral education is virtually unimaginable without general principles and rules as well as paradigm or precedent cases that help specify their content.

On the other hand, claims about the primacy of particular judgments could refer to logical or normative priority of case judgments over principles. However, the relation between particular judgments and general judgments (principles) is better viewed as dialectical, with neither fully and completely derived from the other and each potentially modifying the other. Where there are conflicts, adjustments may need to be made in either the particular or the general judgments (principles), but there is no justification for insisting that either one should always take priority. Indeed, what is sought is a kind of ‘reflective equilibrium’ within a coherentist strategy (see Arras 1991; Beauchamp and Childress 2001).

Suppose that, upon reflection, we make a judgment that an action in a particular set of circumstances is wrong, without regard to general moral principles. What are the implications of this particular judgment, if we take seriously both ethical consistency and universalizability, which entail treating similar cases in a similar way? If we have made a judgment about a case — that X is wrong or right — then, R. M. Hare notes, ‘we have acquired a precept or principle which has application in all similar cases. We have, in some sense of that word, learnt something’ (Hare 1989: 55 – 6). And if we learn something useful from reflection on a particular case, the principle we gain, Hare contends, must be somewhat general rather than having unlimited specificity. Since no two real cases are exactly alike, the results of reflection can be useful in the future only if we ‘have isolated certain broad features of the cases we were thinking about — features which may recur in other cases’ (Hare 1989: 56; italics added). To isolate these ‘broad features’ is to identify a principle or rule (for the principlist) and a paradigm or precedent case (for the casuist).

Casuists also make another important claim ( (3) above) about their inductive method of moral reasoning and justification: Practical reasoning proceeds by analogy from paradigm cases, i.e. settled cases or precedents, to new or unsettled ones. Such reasoning is widespread in bioethics, among principlists as well as casuists. Hence, it is not surprising, for example, that much of the ethical debate about a controversial case of research involving human subjects will reason analogically in relation to the negative paradigm case of the Tuskegee syphilis study in which close to 400 African American men were left untreated for syphilis for decades so that researchers could study the history of untreated syphilis in the African American male. If a current case is relevantly similar to the Tuskegee case, then, on grounds of ethical consistency and universalizability, we are committed to judging the current case as wrong. Such an analogical mode of moral reasoning can and often will be illuminating.