oxford handbook of bioethics

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The principlist could agree but could also argue that cases such as Tuskegee are paradigms or precedents for moral reasoning precisely because of the principles they embody — for instance, the Tuskegee syphilis study became a negative paradigm case because it violated fundamental principles of justice, respect for autonomy, beneficence, and non-maleficence. The differences between principles, on the one hand, and paradigms and precedents, on the other, appears to be minimal, especially because each identifies ‘broad features’ of types of cases. They usually differ in degree of generality or specificity — the paradigm or precedent case may have more details and greater specificity. However, to use a legal analogy, even with the rich, specific details of the case, it may still be necessary to identify the ‘holding’ in the case, and this will bring us closer to a principle or principles. Furthermore, some of the maxims that casuists see embedded in cases appear to function as mid-level principles or rules.

Other important — but often neglected — questions for casuists (and for others) concern cases and their descriptions: How are cases identified and labeled? How does the casuist determine what kinds of cases they are? These are necessary first steps in the process of taxonomic analysis. However, identifying and labeling cases often seems to be more implicit than explicit, more intuitive than reasoned, with insufficient attention to the process of ‘evaluative description’, which is perhaps the most adequate way to conceive case presentations. Narrative analysts who have turned their spotlight on bioethical cases, as mini-narratives, have directed our attention to the evaluative and other assumptions that often structure cases and lead to both classifications and conclusions that may not be adequately examined or warranted (Chambers 1999).

Consider two evaluative descriptions of cases, the first relatively uncontroversial and the second quite controversial. First, several years ago the Journal of the American Medical Association (JAMA 1988) reported a case under the title ‘It’s Over Debbie’. In this case, the authenticity of which has been questioned, a medical resident injects a terminally ill woman with enough morphine to end her life in response to her request, uttered in their first encounter, ‘Let’s get this over with’. The casuist Jonsen classifies this case as one of killing, hence bringing it under a taxonomy of cases of killing, governed by various maxims, and then reasons analogically in relation to paradigm cases in this taxonomy ( Jonsen 1991). Jonsen’s case description, classification, and analysis appear to be quite straightforward in this case, but conflicts can emerge about the evaluative descriptions of cases according to their type and classification, as is evident in the next example.

A few years ago a clinical case involving the disconnection of a ventilator maintaining the life of a patient with amyotrophic lateral sclerosis (Lou Gehrig’s disease) was presented as an end-of-life case, in which the ‘patient’ decided to discontinue the ventilator. However, members of the audience, many of whom had themselves experienced long-term ventilator use, disputed this classification, viewing the case instead as a disability case in which the clinicians should have provided better care,

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fuller information, and more options to the ‘consumer’, particularly after the recent death of his spouse (Kaufert and Koch 2003). Interpreters contend that this conflict illustrates the importance of narrative analysis, which examines the assumptions and perspectives that operate in the description of cases: ‘What to the clinicians was a textbook case of ‘‘end-of-life’’ decision making was, for their audience, a story in which a life was ended as a result of failures of information and assistance by the presenters themselves’ (Kaufer and Koch 2003: 462).

At the very least, casuists (and others) need to pay more explicit attention to ‘moral diagnosis’ (Arras 1991) and hence to how they describe and frame cases. Of particular importance is the recognition and reduction of bias in ‘describing, framing, selecting and comparing of cases and paradigms’ (Kopelman 1994: 21). Bias reduction strategies, at a minimum, should include richer, fuller descriptions of cases, and the incorporation of a wide range of possible descriptions.

Case-based and casuistical methods lack a clear way to identify relevant features of cases, in part because they lack content. According to some critics, casuistry is ‘a method without content. It is a tool of thought that displays the fundamental importance of case-comparison and analogy in moral thinking, but it lacks initial moral premises’ (Beauchamp and Childress 2001: 395). Or, stated differently, it is ‘more a method than a doctrine, more an engine of thought than a moral compass’ (Arras 1998: 112). Hence, the engine’s direction depends on the values — individual, professional, communal, etc. — casuists bring to bear on the case. If, of course, casuists were to identify the maxims in an array of cases, e.g. on killing, they would perhaps then have a framework of mid-level principles or rules that could be critically examined and employed in describing cases and recommending actions — but then it would be even harder to distinguish casuists from principlists.

General principles may also provide ways to criticize practices that are not available in case-to-case analysis. This point may hold even if the principles themselves are discerned in practices, rather than established by an ethical theory. John Arras (1991) worries that, in the taxonomic approach of moving from actual case to actual case, the casuist may be limited to what practitioners and others present for ethical analysis and assessment because of felt problems or dilemmas. However, general principles may help us identify other cases that should be on the moral agenda because of some ‘broad features’, and they may direct our attention to real problems and dilemmas that have not yet been experienced as such. In addition, principles, such as justice, may help us identify and correct the distortions that our social structures, policies, and practices create in our perception of cases and our analogical reasoning.

The contrasts between principle-based and case-based methods or between generalist and particularist approaches may be less significant and less illuminating if these methods gravitate more and more toward the middle as they mature (Sumner and Boyle 1996). Indeed, most debates about these methods and positions already tend to feature caricatures rather than real opponents. One question is whether

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these methods become virtually identical or whether they are complementary. Even though casuists and principlists — in their best moments — attend to both principles and cases and seek rigorous and imaginative ways to relate them — for example, dialectically — the methods are better understood as complementary than, as Mark Kuczewski (1998: 521) claims, ‘largely the same method’.

VIRT UE ET HI C S

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A modern alternative to principle-based (and rule-based) approaches appears in virtue ethics, which draws on ancient philosophical resources, especially Aristotle. In a sense, as Michael Slote (1997: 233) observes, virtue ethics has awakened from ‘a long slumber’, but, in view of its extended dormancy, it is, practically speaking, ‘the new kid on the block’ compared to consequentialist and deontological approaches. It (re)emerged as a critique of the inadequacies of various principle-based approaches, but has now morphed into a distinctive, constructive alternative.

(Re)emerging as a critique, virtue ethics has routinely been characterized as a corrective. According to proponents of virtue ethics, principle-based as well as casebased methods — which from the standpoint of virtue ethics are more similar than different — tend to neglect moral character, discernment, motivation, emotions, etc. By contrast, virtue ethics attends to the agent rather than the act; to character rather than conduct; to what sort of persons we should become rather than what sorts of actions we should perform; and so forth. While partially illuminating the different positions, such characterizations and contrasts also inevitably oversimplify and distort them.

Principle-based approaches — as well as casuistical approaches — usually recognize the importance of the virtues. While the list of specific virtues will vary from theory to theory and method to method, they all presuppose certain conceptions and kinds of virtues, as established traits of character, including motivation to act according to certain principles and rules or to act on casuistical judgments. Nevertheless, it is fair to say that neither principle-based nor case-based approaches have adequately attended to the virtues they presuppose for their own successful operation.

Principle-based approaches tend to identify (at least some of ) the relevant virtues by their correspondence to different principles — e.g. the virtue of benevolence corresponds to the principle of beneficence — or by their value for morality as a whole — e.g. courage (see Beauchamp and Childress 2001). From this standpoint, the virtues, as motivational structures and dispositions, are important because they enable agents to adhere to moral principles. As William Frankena put it, ‘principles without virtues are impotent’ (Frankena 1973: 36). There is thus little dispute that the virtues are important and even indispensable in ethics and in bioethics.

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However, for principled and casuistical approaches, the virtues are important and indispensable in a secondary, derivative way — to provide motivation to realize what is already known independently through principle-based or case-based judgments.

For principle-based and case-based methods, then, the virtues have no independent cognitive or normative significance for human action. Virtues do not guide action but, instead, motivate action. Indeed, emphasizing that virtues do not direct action, Frankena holds that ‘virtues without principles are blind’ (Frankena 1973: 36). In a similar vein, R. M. Hare claims: ‘It looks as if any ethics of virtue would have to borrow extensively from an ethics of principle in order even to tell us what virtue consists in’ (Hare 1996: 22). Given these points, it might be unclear just what virtue ethics can contribute to bioethics other than calling attention to neglected virtues as indispensable motivational resources for principle-based and case-based methods.

One problem is that conceptions of the virtues as dispositions to act, in a one- to-one correspondence with independent principles and rules, reduce each of the virtues to what Hursthouse (2003) calls a ‘single track disposition’. However, such a reductionist conception distorts the virtues. For instance, the virtue of honesty cannot be reduced to a ‘single track disposition to do honest actions, or even honest actions for certain reasons’ — instead, it is ‘multi-track’ because it denotes a ‘complex mindset’, consisting, in addition to honest actions, of other actions, such as disapproving of others’ dishonesty, along with various associated emotions, attitudes, perceptions, sensibilities, and the like (Hursthouse 2003). One important implication is that not even a wide range of agent X’s acts of honesty can warrant the judgment that X is honest, in part because X’s reasons (motives) are crucial to the judgment but also because honesty is a ‘multi-track disposition’ that may be embodied and expressed in degrees.

While one set of action-guiding virtues — variously called practical wisdom, prudence, or discernment — functions in part through the interpretation and application of principles, it too is more complex. As Alisa Carse rightly argues, ‘recognizing that a general principle or rule is relevant to the situation at hand, and knowing how it is fittingly to be acted upon requires a capacity for discernment that is distinct from, and presupposed by, the application of principles themselves’ (Carse 1991: 11). She further observes that discerning responses are not always principle-driven or the result of principled deliberation; rather they may involve sensitivity to other people through a sympathetic attunement to their needs and concerns. Principle-based approaches need not and should not deny these points: principles do not exhaust the moral life and its decisions, and even when principles are relevant they must be discerningly interpreted and employed in the situation.

Proponents of virtue ethics contend that virtues provide more action guidance than other theorists often recognize. A major misconception that pervades much of the contemporary debate about ethical theory and method, according to Rosalind Hursthouse, a virtue ethicist herself, is that ‘virtue ethics does not, and cannot,

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provide action guidance, the way utilitarianism and deontology do’ (Hursthouse 2003). Against this misconception, she argues that

virtue ethics provides a specification of ‘right actions’ — as ‘what a virtuous agent would, characteristically, do in the circumstances’ — and such a specification can be regarded as generating a number of moral rules or principles (contrary to the usual claim that virtue ethics does not come up with rules or principles). Each virtue generates an instruction — ‘Do what is honest’, ‘Do what is charitable’; and each vice a prohibition — ‘Do not . . . do what is dishonest, uncharitable’. (Hursthouse 2001: 17)

Despite such points about virtue ethics’ capacity for action guidance, critics still often view an examination of the virtues as a subject better suited for the novelist than for the ethicist, because they are so numerous, unspecifiable, and potentially in conflict without some way to arrange and order them. Hence, beyond claims that virtues lack independent action-guiding content, questions arise about whether the virtues can guide action because of their limited specifiability. As Justin Oakley observes, ‘a virtue ethics criterion of rightness is less precisely specifiable and less easily applicable’ than some other approaches (Oakley 1998: 94). The very nature of the virtues, according to Robert Louden, means that we can reasonably expect ‘a very limited amount of advice on moral quandaries . . . from the virtue-oriented approach. We ought, of course, to do what the virtuous person would do, but it is not always easy to fathom what the hypothetical moral exemplar would do were he in our shoes’ (Louden 1984: 229).

In response to concerns about whether virtue ethics can guide decisions in conflict situations, Hursthouse argues that the goal should not be ‘to provide a decision procedure which any reasonably clever adolescent could apply [without moral wisdom or discernment]’ (Hursthouse 2001: 18). This is part of her — and virtue ethics’ — rejection of the idea that ethics is ‘codifiable’. She also distinguishes ‘resolvable dilemmas’, or hard cases, from ‘irresolvable and tragic dilemmas’, noting that the virtue ethicist may try to specify the virtues and to distinguish merely apparent from real dilemmas — a task that presupposes moral wisdom and discernment (Hursthouse 2001). (As Hursthouse recognizes, some forms of principlism also distinguish the apparent from the real by further specifying principles to avoid or reduce the apparent conflict.) Sometimes, however, irresolvable and tragic dilemmas remain. Even though action guidance is impossible in such situations, virtue ethics can depict how the agent should respond, that is, with appropriate attitudes and emotions, such as distress and guilt.

One critique of virtue ethics, leveled by a variety of principlists, is that good or virtuous people can act wrongly and do bad things (Hare 1996; Oakley 1998). Neither a settled motivational structure nor guidance from the virtues themselves, including prudence, may be sufficient to preclude wrong actions. Indeed, even if an agent’s motivation is virtuous, certain dominant virtues may lead him or her to act wrongly. For example, a caregiver’s virtue of benevolence may lead her to find

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active euthanasia acceptable for a particular patient, even though that patient is not able to speak competently for himself.

Virtue ethicists could respond that the virtues need to be considered as an integrated whole, as a unity, and that a virtuous person has discernment to draw appropriate lines. Furthermore, unless virtue ethics reduces all general standards of action to virtue standards — a move that is unnecessary and indefensible — then, as previously noted, virtue ethics can incorporate other principles of action guidance.

Even though many theories have grounded the moral virtues in conceptions of human flourishing or fulfillment, those conceptions have floundered in the wake of the collapse of teleological notions of science and the prevalence of diverse conceptions of the good life. As a result, some virtue ethicists have resorted to traditions of particular communities — such as religious communities — which may embody a unified conception of human flourishing that can warrant a set of virtues.

A promising alternative in bioethics grounds the virtues in particular professional traditions, such as medicine and nursing. In contrast to general ethics, Edmund Pellegrino argues that ‘professional ethics offers the possibility of some agreement on a telos — i.e. an end and a good’, which, in the case of the relationship between the health care professional and the patient, would be the good of the patient (Pellegrino 1995: 266). From the clinical relationship with its telos of healing, Pellegrino develops a list of virtues: fidelity to trust and promise, benevolence, effacement of self-interest, compassion and caring, intellectual honesty, justice, and prudence. According to Pellegrino, this list, while not exhaustive, identifies the virtues ‘most essential to the healing purposes of the clinical encounters’ (Pellegrino 1995: 268). In short, ‘they are ‘‘entailed’’ by the end of the healing relationship; that is, they are required if the end is to be attained’ (Pellegrino 1995: 268). These different virtues are mutually reinforcing — compromising one would compromise the others — such that no priority order is possible.

Questions still arise about whether this list of virtues is sufficiently comprehensive. Critics note the absence of a virtue that would correspond to respect for patients’ autonomous choices and wonder whether Pellegrino’s virtue-based framework thus allows and supports excessive professional paternalism. In addition, the professional relationships and traditions, on which Pellegrino builds, have suffered, in recent decades, from widespread consumerism in market-driven interactions. Hence, it is unclear whether they can engender and sustain the virtues Pellegrino affirms.

Virtue-based methods would approach questions about euthanasia in part by drawing out the implications of character and specific virtues in light of the telos that the particular method recognizes. For example, focusing on the telos of human flourishing, Philippa Foot examines the moral possibility of various kinds of euthanasia (passive or active and voluntary or non-voluntary) from the standpoint of the virtues, contending that charity as the virtue of attachment to the good of others can support euthanasia while justice sometimes opposes and sometimes

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allows it (e.g. justice opposes non-voluntary active euthanasia, may accept nonvoluntary passive euthanasia, and supports active voluntary euthanasia) (Foot 1977: 106). However, in considering changes in legal and professional rules, Foot’s argument differs little from many rule-consequentialist arguments, in stressing the importance of keeping a ‘psychological barrier’ and the dangers of abuse as well as the alteration of social expectations about care of the sick and elderly (Foot 1977). By contrast, Pellegrino (1998) totally rejects active euthanasia, at least by physicians, because it is opposed to specific professional virtues in clinical relationships aimed at healing.

ETHICS OF CARE

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Another approach that also seeks to provide an alternative to principle-based methods is an ethic of care or caring. It is similar in many respects to virtue ethics, with care or caring viewed as a specific virtue. After decades of research into human moral development, some psychologists noticed that principle-based approaches tend to echo male voices about male experiences, while neglecting women’s voices and experiences. They further observed that theories of moral development were based exclusively on male models. In her pioneering research along these lines, Carol Gilligan (1982) reported that women tend to concentrate on narratives, contexts, and relationships of care. By contrast, males tend to emphasize what Gilligan calls an ethic of justice, involving tiers of general moral principles and employing a logic of hierarchical justification. ( These tendencies do not mark gender exclusivity — men may take a care perspective and women a justice perspective.) From a care perspective, the moral agent is relational and interdependent with others rather than an independent decider who applies abstract, general principles — even autonomy is often construed as ‘relational autonomy’ (Mackenzie and Stoljar 2000).

Beyond studies of moral development, philosophers have highlighted a variety of features of a care perspective. Viewing an ethic of care as ‘a way of understanding one’s moral role, of looking at moral issues and coming to an accommodation in moral situations’, the philosopher Rita Manning finds in it five central ideas: moral attention, sympathetic understanding, relationship awareness, accommodation, and response (Manning 1998: 98). Another central theme is ‘appropriate trust’, which Annette Baier (1985, 1994) emphasizes.

Given the focus on care as a moral sentiment and response in particular relationships, and its similarities to virtue ethics, it is not surprising that ‘care as a standard does not prescribe specific actions in the way an ethic of rules or decision procedures strives or claims to do’ (Blum 2001: 186). Methodologically, as Alisa Carse observes, ‘ ‘‘care’’ reasoning is concrete and contextual rather than abstract; it

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is sometimes principle-guided, rather than always principle-driven, and it involves sympathy and compassion rather than dispassion’ (Carse 1991: 17). In so far as the ethics of care is contextual, it overlaps with casuistry.

However, turning from principles to context, including relationships, still leaves open difficult questions about setting priorities when responsibilities to concrete others in particular relationships come into conflict with each other or with responsibilities to stakeholders outside those particular relationships. In many cases, moral agents have to determine, at least in part through principles and rules, how much weight to give to different relationships. For example, a physician may have to determine whether to breach confidentiality in order to warn a stranger of a patient’s threatened violence.

An ethic of care appears to be best suited for intimate relations, including some in health care. However, it must also address the stranger, the person outside specific relationships. Indeed, a major challenge to an ethic of care focuses on its particularity and its partiality. The question is whether care, in many of its formulations, is too partial and parochial, without pressures generated by a more principled approach. For instance, care in particular relationships may need to be limited in strength or weight even as care is expanded in scope — i.e. rendered more general and universal — perhaps under a principle of beneficence (or virtue of benevolence) or a principle or virtue of justice. As Gilligan (1982) recognizes, care and principles (which she characterizes in terms of ‘justice’) are generally complementary rather than opposed.

Even though much of the interest in and early work on an ethic of care emerged from feminist contexts, many feminists challenge such an ethic, especially if taken by itself without further attention to principles. Certainly principles of justice, particularly in the form of equality and impartiality, as well as respect for personal autonomy, strongly support often neglected women’s rights. In addition, some feminists distinguish a feminist approach to ethics from a feminine approach, associating an ethic of care with the latter. For example, some feminists, who take seriously the oppression of women, are suspicious of a feminine ethic of care that originates and operates under oppression (and thus lacks independent standing) and that may actually perpetuate oppression. Such an ethic may foster further oppression through the liberal division of private and public spheres, with care being deemed appropriate in the private sphere but not in the public sphere, and with women being viewed as the primary bearers of caring — for instance, in the care of elderly family members (Sherwin 1992). For others, the care perspective is potentially transformative, since the personal and the interpersonal are also publicly and politically significant. One possible formulation is ‘just care’ (see Manning 1998: 103 – 4 on care and justice).

Just as a virtue ethic, an ethic of care can lead in different directions in debates about physician-assisted suicide or active euthanasia. At the very least, it would give priority to long-standing relationships in which care has been evident — for

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instance, it would tend to find Dr Timothy Quill’s assistance to his patient Diane in her suicide much more acceptable than Dr Jack Kevorkian’s assistance in the suicide of persons whom he barely knew and had not cared for (Quill 1991). Still the appropriate, fitting, responsible response in such situations will depend greatly on what is built into the notion of care and its limits.

In the final analysis, the care perspective offers an important corrective to some principle-based approaches by attending to context, narrative, relationships, emotion, compassion, and the like. At a minimum, principle-based approaches must attend to — and, if necessary, be reformulated in light of — the whole range of human moral experience, including women’s experiences of caring as well as of oppression. Fidelity to moral experience is one important criterion for any acceptable ethical theory, perspective, or method.

COMMUNITAR IAN PERSPEC T IVES

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Communitarianism, another family of approaches to ethics — a somewhat loosely related family because of the variety of meanings of community — has often criticized principle-based approaches to bioethics, whether deontological, consequentialist, or pluralist. Some communitarians charge that principlism is a foundationalist approach that neglects the role of community and tradition in moral reflection. However, principlists are not necessarily foundationalists in the theoretical sense. Some principleand rule-based approaches appeal to at least a thin sense of community in notions of ‘common morality’ (Gert 1989; Gert et al. 1997; Beauchamp and Childress 2001). And some principlists argue further that communities and traditions regularly embody and convey moral principles, just as they transmit settled judgments about cases and seek to engender certain traits of character. Some communitarians have stressed shared, deep, thick communal values that can engender, support, and sustain both casuistical practices as well as virtuous persons (Kuczewski 1997, 2001). One difficulty in thinking from a communitarian perspective, as these points suggest, is determining the relevant community, e.g. whether a whole society or a particular community within that society.

Communitarianism may be primarily important as a perspective on ethical problems rather than as a way to resolve them. Most communitarians would agree with Daniel Callahan that ‘the first set of questions to be raised about any ethical problem should focus on its social meaning, implications, and context, even in those cases which seem to affect individuals only’ (Callahan 2003: 287). With its ecological bent, the point of communitarianism in Callahan’s sense is to offer ‘a way of thinking about ethical problems, not to provide any formulas or rigid criteria for dealing with them’ (Callahan 2003: 288). It presupposes both

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analytical skills (rationality, imagination, insight) and personal virtues. It often seeks deliberative methods for the community, however defined, to develop and express its values (Emanuel 1992). In addition, communitarians often criticize principle-based approaches for their tendency to ‘block substantive ethical inquiry’ (Callahan 2003: 288).

The debate about principles has been caught in the larger and tangled web of debate about individualism versus communitarianism. Communitarians charge that individualistic interpretations of bioethical principles have dominated moral discourse and now need to be corrected. Even though some defenders of principlebased approaches are individualists — for example, deontologists who concentrate on respect for autonomy and liberty or utilitarians who simply sum up the effects of actions on individuals’ interests — many principlists also recognize that moral agents are social and that communal values are very important. Furthermore, communitarians need not reject principles — though they may ground, interpret, and weight them differently than individualists and may propose additional principles, for instance, what some bioethicists call a principle of community or respect for community.

At the first meeting of the National Bioethics Advisory Commission in October 1996, Ezekiel Emanuel, then a member, contended that the three Belmont principles (respect for persons, beneficence, and justice), developed by a predecessor national body (the National Commission for the Protection of Human Subjects), and related guidelines for research involving human subjects do not adequately address community. Such a challenge could mean, among other possibilities, that we should add community as a fourth principle to the Belmont list — the approach that Emanuel recommends — or that we should interpret all these principles through the lens of relationships and community. According to Emanuel and Weijer (2005), an independent principle is needed in order adequately to recognize that communities have moral status, values, and interests (such as avoidance of communal stigmatization) that merit protection — beyond the sum of individual values and interests — and to describe and address the conflict between individual and communal interests. However, communitarians are rarely clear about how such conflicts are to be resolved, particularly in view of the different kinds of community involved.

An alternative way to correct the putative individualism of principlism is through a richer interpretation, or reinterpretation, of ethical principles through the lens of relationships and community. After all, the question for principles is not only their content, or their weight, but also their scope, as is indicated by the rubric Raanan Gillon (1994) has used for Beauchamp and Childress’s principles — ‘four principles plus scope’. Among other things, scope can include such matters as moral status — for instance, of communities as well as embryos and the environment.

Reinterpreted through the lens of relationships and community, appeals to the principle of respect for persons, or respect for autonomy, would consider persons